Executive Order On DEI Once Again In Play

The Fourth Circuit Court of Appeals has granted the Trump Administration’s request to stay a nationwide injunction issued by a Maryland federal court as to portions of an Executive Order on DEI directed at private employers. 

As we previously reported, the section of the “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order that encourages private employers to end “illegal DEI Discrimination and Preferences” was stayed on February 21. The court granting that injunction determined that the “enforcement threat provision” directed at private employers likely violates free speech protections and may be unconstitutionally vague.

The Trump Administration appealed this ruling, and the appeals court has determined that for the time being, while the appeal is pending, the Trump Administration can continue to enforce its DEI orders. The appeals court is establishing an expedited briefing schedule for the appeal, but it is not yet clear when briefing will conclude or a decision will be issued. 

A final resolution on the legality of the DEI Executive Orders will take some time. In the meantime, private employers continue to ponder how this Executive Order applies to them and exactly what the federal government plans to do to “encourage” them to fall in line. It should be noted that due to another new Executive Order directed specifically at large law firms, the Chair of the U.S. Equal Employment Opportunity Commission recently demanded DEI information from twenty firms. Whether she has the authority to demand this information remains to be seen. 

We will continue to keep you updated.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.