Contrary to some reports, the executive order does not attack all DEI initiatives.

As we reported January 22, President Donald Trump has ended diversity, equity and inclusion (DEI) in the federal government and has revoked Executive Order 11246, which required affirmative action by federal contractors for women and certain minority groups. But President Trump’s executive order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” also takes aim at private sector DEI efforts independent of affirmative action.

Section 4 of the executive order is entitled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences.” To achieve this goal, President Trump has directed all federal agencies, with the assistance of the U.S. attorney general, within 120 days of the executive order, to:

1. Identity the most “egregious and discriminatory DEI practitioners”;
2. Develop a plan or specific steps or measures to deter DEI programs or preferences that constitute “illegal discrimination or preferences”; and
3. Establish strategies (including litigation) to encourage the private sector to “end illegal DEI discrimination and preferences.”

Contrary to some reports, the executive order does not attack all DEI initiatives. It purports, by its plain words, to attack only DEI practices that are illegal.

In response to the executive order, employers are well advised to audit their DEI practices now to determine (a) what practices may be unlawful, (b) what practices may be high risk but not necessarily unlawful, and (c) what practices may send the wrong cultural message in terms of compliance.

Of course, the process of auditing one’s DEI initiatives is not without legal risk. Employers should consider the potential benefits of the attorney-client privilege when conducting the audit.

Further, the process of making changes is deceptively complex. When taking corrective action, employers need to avoid, where possible, admitting that any prior practice was unlawful. Yes, this is easier said than done—but it can be done.

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