Why Trump can’t Kill DEI

On January 20th and 21st, Trump signed Executive Order #14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and Executive Order #14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,”

Both executive orders have sent the public and private sector into a state of shock and uncertainty regarding the continuation of DEI policies, practices, personnel, training and related programs.

The orders have intimidated public and private sector employers who may be federal contractors, or receive federal funding or grants, by using confusing and threatening language for compliance with federal civil rights and anti-discrimination laws.

The January 20th order #14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” includes instructions and requirements below for federal government departments and agencies ONLY (not private sector, local or state governments): 

• require the federal Office of Management and Budget (“OMB”) to “coordinate the termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government. 
  
  
• terminate to the maximum extent allowed by law, all DEI, DEIA, and “environmental justice” offices and positions including “Chief Diversity Officer” positions; equity action plans, initiatives, or programs, equity-related grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees. 
  
  
• provide a list of federal contractors and grantees who have provided DEI training or DEI training materials to agency or department employees.

The January 21st order #14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” includes instructions and requirements below for federal government departments and agencies ONLY (not private sector, local or state governments):

• states the purpose of the order is to end illegal preferences and discrimination. 
  
  
• “orders all executive federal departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements, and enforce civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
  
  
• terminates illegal discrimination in the federal government and revokes a series of executive orders from previous administrations.
  
  
• “encourage the private sector to end illegal DEI discrimination and preferences.” “The heads of all federal agencies, with the assistance of the Attorney General, shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work.”
  
  
• requires director of OMB to submit a report containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. 
  
  
• “order does not prevent state or local governments, federal contractors, or federally-funded state and local educational agencies or institutions of higher education from engaging in First Amendment protected speech.”
  
  
• requires a contract clause requiring federal contractors or grant recipients to comply with not operating DEI programs that violate federal anti-discrimination laws, and compliance is material to receiving federal funding.
  

So what DEI Policies and Practices are Permissible within a Municipality?
What DEI Policies and Practices are Permissible within Employment?
What DEI Policies and Practices are Permissible within Procurement?
What DEI Policies and Practices are Permissible within Procurement?
What DEI Policies and Practices are Permissible within Procurement?

The purpose of this guidance is to provide clarity, confidence, and encouragement for public and private sector organizations to sustain their DEI policies, practices, personnel, and programs, that are aligned with best practices for advancing equal opportunity, preventing discrimination, and complying with federal anti-discrimination and civil rights laws. If you don’t have data, all you have is an opinion.

Download our complete report on DEI Guidance for state and local governments.