Workforce Bulletin

As featured in #WorkforceWednesday®: This week, we’re bringing you a special episode on the first 100 days of the Trump administration, in which we highlight sweeping policy shifts, battles at the National Labor Relations Board (NLRB); revisions to diversity, equity, and inclusion (DEI) programs; the rapid evolution of artificial intelligence (AI) in the workplace; and more.

As featured in #WorkforceWednesday®: This week, we’re covering the relaxation of state-level non-compete rules, the recent block of Executive Order 14173’s diversity, equity, and inclusion (DEI)-related certification requirement, and a federal appeals court’s decision to pause a challenge to the Biden-era independent contractor rule.

As featured in #WorkforceWednesday®: This week, we highlight new guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) on diversity, equity, and inclusion (DEI)-related discrimination.

We also examine the Acting EEOC Chair’s letters to 20 law firms regarding their DEI practices, as well as the Office of Federal Contract Compliance Programs (OFCCP) Director’s orders to retroactively investigate affirmative action plans.

On Thursday, March 26, 2025, a federal judge for the Northern District of Illinois issued a Temporary Restraining Order (TRO) prohibiting enforcement of portions of Executive Order 14151 (“the J20 EO”) and Executive Order 14173 (“the J21 EO”), two of President Trump’s first directives seeking to eliminate Diversity, Equity, and Inclusion (DEI), previously explained here. This order has implications for federal contractors and grant recipients nationwide, at least for now.

The Case

The case, Chicago Women in Trades v. Trump et. al., was brought by a Chicago-based association, Chicago Women in Trades (CWIT), that advocates for women with careers in construction industry trades.  Federal funding has constituted forty percent of CWIT’s budget. After the issuance of the J20 and J21 EOs, CWIT received an email from the U.S. Department of Labor’s (DOL) Women’s Bureau stating that recipients of financial assistance were “directed to cease all activities related to ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA).” Similarly, one of its subcontractors emailed CWIT to immediately pause all activities directly tied to its federally funded work related to DEI or DEIA. CWIT brought the action against President Trump, the DOL, and other agencies alleging, among other things, that its Constitutional rights were violated by various provisions in both EOs. For example, CWIT argued that the J20 EO targeted “DEI,” “DEIA,” “environmental justice,” “equity,” and “equity action plans” without defining any such terms. This lack of definition, according to CWIT, makes it difficult to understand what conduct is permissible and what is not.

As featured in #WorkforceWednesday®: This week, we’re focused on federal contractors and the effects that the reinstatement of Executive Orders 14151 and 14173 will have on employers.

President Trump’s executive orders against diversity, equity, and inclusion (DEI) are back in effect after the U.S. Court of Appeals for the Fourth Circuit stayed a nationwide injunction, posing new compliance challenges for federal contractors.

In this week’s episode, Epstein Becker Green attorneys Nathaniel M. Glasser and Frank C. Morris, Jr., outline the implications for employers, focusing on the False Claims Act, whistleblower risks, and the need for certification of compliance with anti-discrimination laws. Tune in to learn what steps your organization can take to mitigate potential penalties and retaliation claims.

On Friday, March 14, 2025, ruling on a Government motion for a stay pending appeal, the United States Court of Appeals for the Fourth Circuit issued an Order staying a preliminary injunction that was issued in National Association of Diversity Officers in Higher Education (NADOHE) et al. v. Trump three weeks prior. The unanimous ruling by a three-judge panel allows for full enforcement of two Executive Orders (EOs) regarding “Diversity, Equity, and Inclusion” (DEI), lifting the nationwide injunction against specific provisions that we explained here.

The Fourth Circuit panel issued its decision shortly after a District Court hearing on an emergency motion filed by the plaintiffs, who requested a status conference to review the  U.S. Department of Justice’s alleged refusal to comply with the preliminary injunction. Four days earlier, on March 10, 2025, the District Court had issued a Clarified Preliminary Injunction along with a Memorandum Opinion, explaining that the February 21st ruling did not apply to the President, but applied to all federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions.

On Friday, February 21, 2025, a federal judge issued a Preliminary Injunction in National Association of Diversity Officers in Higher Education, et al. v. Trump, blocking significant portions of two Executive Orders (EOs) issued by President Donald Trump. The decision, which will be appealed, creates more uncertainty for employers with programs that may fall under the broad umbrella of “Diversity, Equity, and Inclusion” (DEI) or “Diversity, Equity, Inclusion, and Accessibility” (DEIA) in light of the Trump administration’s efforts to eliminate DEI programs within federal agencies and impose restrictions on private sector DEI initiatives. For now, the court’s order blocks most – but not all – of the provisions in the two EOs.

Background

The U.S. District Court for the District of Maryland addressed a motion seeking relief from EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing,” which the court labeled “J20 Order”) and  EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” referred to by the court as the “J21 Order”). Epstein Becker Green has published several advisories explaining these EOs and how they may affect federal contractors and other federal funding recipients (see here and here) as well as other public and private employers (see here).

Both EOs were challenged by a group of plaintiffs that includes the City of Baltimore, the American Association of University Professors, and National Association of Diversity Officers in Higher Education. In brief, the plaintiffs argued that:

Even before the 2024 presidential election and the recent wave of executive orders, employers were evaluating their positions on various social issues. Whether taking a formal stand, abstaining from a position, or landing somewhere in between, employers often consider external stakeholders and the court of public opinion. But they frequently forget about a critical and impactful audience—their employees.

Below are a few key areas where evolving social policies intersect with employee considerations.

• Environmental, Social, and Governance (ESG) Policies: Regulations around diversity, equity, and inclusion; sustainability; the environment; and financial investments can differ across federal, state, and local jurisdictions, and certain rules apply only to government contractors. Aside from legal concerns, employers may face public and private questions about their actions or policies from employees. As such, employers should make sure that their ESG policies are current, thoughtful, and well communicated, especially in light of changing public sentiment, regulations, and legislation.

President Donald Trump has made several significant and sudden changes at the Equal Employment Opportunity Commission (“EEOC” or “the Commission”), the agency responsible for enforcing Title VII of the Civil Rights Act of 1964. First, he appointed current Commissioner Republican Andrea Lucas as new Acting Chair and then removed Karla Gilbride (a nominee of former President Biden) from her role as EEOC General Counsel.  Both of these decisions were routine and unsurprising for the start of a new presidential administration. President Trump then removed Commissioners Jocelyn Samuels and Charlotte Burrows, two of the three Democratic commissioners.  This move was far from routine and is likely to be challenged in court.

These sweeping changes initiated by President Trump at the EEOC should be seen as a critical element of an ever-expanding goal of government-wide elimination, not just of DEI, but of all forms of affirmative action.  This remaking of the EEOC should be viewed in parallel with Trump’s firing of two Democratic Members and the General Counsel at the National Labor Relations Board, revocation of Executive Order 11246, which contractually required covered federal government contractors and subcontractors to meet certain affirmative action obligations, and the possible elimination of the Office of Federal Contract Compliance Programs (“OFCCP”).