Trump DEI executive orders go back into effect

Two executive orders (EOs) that target employers’ diversity, equity and inclusion (DEI) initiatives are once again fully in effect.

Last month, a federal district court had issued a preliminary nationwide injunction blocking key parts of EO 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, and EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity — both of which seek to terminate and penalize workplace DEI programming and initiatives that the Trump administration considers to be illegal.

But now a federal appeals court has restored the EOs while the case works its way through the courts.

In an order issued March 14, the 4th US Circuit Court of Appeals halted the lower court’s injunction. It said the Trump administration had satisfied the legal criteria for staying an injunction by showing, among other things, that it was likely to win its case.

With the injunction lifted, the federal government may once again:

• Change the terms of, pause, block, cancel or terminate any federal contracts or grants on the basis that they are “equity-related,” as described in EO 14151
• Require federal contractors or grant recipients to certify that they do not operate certain types of programs promoting DEI
• Bring enforcement actions against private employers based on a provision in EO 14173 that directs the government to “combat illegal private-sector DEI preferences, mandates, policies, programs and activities”

But, as the 4th Circuit observed, neither EO ever defines DEI or its component terms. “As a result, it’s unclear what types of programs — formal or informal — the administration seeks to eliminate, and it could not respond to the district court’s hypotheticals about the same,” the order states.