On February 21, 2025, a federal district court in Maryland issued a nationwide order that temporarily prevents the administration from enforcing the anti-DEI (diversity, equity, and inclusion) provisions in two of President Trump’s executive orders. One of the executive orders (issued on January 21) is Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, on which we previously reported. The other, issued on January 20, only applies to federal agencies.
Court Blocks Key Anti-DEI Provisions in Executive Order, Citing Likely Legal Violations
The district court determined that the challenge to the anti-DEI provisions is likely to succeed, so it issued a “preliminary injunction,” which temporarily halts them while the court schedules time for a full review. Specifically, the court put on hold the Certification Provision (Section 3(b)(iv) of the executive order, which requires federal contractors to certify that they don’t “operate any programs promoting DEI that violate any applicable Federal antidiscrimination laws”) and the Enforcement Threat Provision (Section 4(b)(iii) of the executive order, which directs federal agencies to identify “specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences”) (National Association of Diversity Officers in Higher Education v. Trump, D Md, Feb. 2025).
Tips: This is just the first salvo in what is likely to be a hard-fought legal battle. The administration is already appealing the district court’s preliminary injunction to the U.S. Fourth Circuit Court of Appeals. It is likely that the U.S. Supreme Court will later be asked to weigh in. Once the preliminary injunction is resolved, the whole process may repeat, when the district court evaluates whether to impose a permanent injunction.
One important part of Executive Order 14173 that remains intact is the rescission of Executive Order 11246, which since 1965 had required federal contractors to maintain affirmative action programs related to race/ethnicity and gender. Consistent with what we previously reported, federal contractors are still required to wind down their activities under Executive Order 11246 by April 21, 2025. We have updated our Model Forms, Invitation to Self-Identify, Federal Contractor Notices to Vendors and Subcontractors, and Letter to Disseminate EEO Policy, as well as our Model Policy, Equal Employment Opportunity Policy, with these changes.
