Independent of the executive orders, we expect an increase in challenges to DEI programs by private plaintiffs, activists and state attorneys general.
As we reported in a previous Alert, last month a district court judge issued a preliminary injunction blocking some of the more salient provisions of President Donald Trump’s executive orders on diversity, equity and inclusion (DEI) that affect federal contractors and other private sector employers.
On March 14, a unanimous panel of the United States Court of Appeals for the Fourth Circuit granted the government’s motion to stay the district court’s nationwide injunction pending appeal. The appellate court held that the government had shown the requisite likelihood that the challenged provisions of the executive order do not on their face violate either the First or Fifth Amendments.
With the stay of the district court’s preliminary injunction, we expect aggressive enforcement of the executive orders by the Department of Justice and other federal agencies on unlawful preferences or exclusions in DEI programs. In terms of DOJ investigations, there is the potential not only for civil but also for criminal liability.
Independent of the executive orders, we expect an increase in challenges to DEI programs by private plaintiffs, activists and state attorneys general.
About Duane Morris
Attorneys in the Duane Morris Employment, Labor, Benefits and Immigration Practice Group provide support in evaluating organizations’ policies, programs, practices and communications to assess the potential risk that they may include (or reasonably may be seen as including) unlawful preferences, exclusions, etc., and to take corrective action as may be appropriate.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.