Navigating the Impact of Trump’s Executive Orders on Employers: DEI and Gender Policies

Shortly after President Donald Trump assumed office on January 20, 2025, he swiftly initiated a series of executive actions to implement his policy agenda. On his first day, he signed 26 executive orders, 12 memoranda, and 4 proclamations, totaling 42 actions. These directives encompass a wide range of issues, two of which have a direct impact on employers. This article summarizes the order which impacts diversity, equity, and inclusion (“DEI”). ?An upcoming article will examine the Trump Administration's recent actions affecting affirmative action policies.

I.????????????? Understanding Executive Orders

An executive order is a directive issued by the President of the United States that manages operations within the federal government. It has the force of law but does not require approval from Congress, thus, it can be challenged in a court and overturned. Executive orders are often used to direct federal agencies, enforce existing laws, or set government policies. Executive orders primarily affect federal agencies, employees, and contractors, rather than private businesses or individuals (unless they interact with the government).

II.??????????? Executive Order on DEI Initiatives

On January 21, 2025, President Donald Trump issued an executive order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which significantly impacts diversity, equity, and inclusion initiatives within federal agencies and among federal contractors. The order mandates the elimination of all DEI-related programs within federal agencies, emphasizing a return to merit-based hiring and promotion practices. Federal contractors and subcontractors are now prohibited from implementing DEI-related policies that consider race, color, gender, sexual orientation, religion, or national origin in their employment practices. They are required to certify compliance with federal anti-discrimination laws and may face civil compliance investigations if found promoting DEI programs deemed discriminatory.

While the executive order aims to dismantle diversity, equity, and inclusion (DEI) initiatives within the federal government, the order does not affect affirmative action requirements for veterans and individuals with disabilities. Federal contractors are still obligated to comply with the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act, which mandate affirmative action and prohibit discrimination against veterans and disabled individuals. The impact on private-sector employers is discussed below.

III.????????? Executive Order on “Gender Ideology”

President Donald Trump also issued an executive order titled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." This order mandates that the federal government recognize only two biological sexes—male and female—defined by immutable characteristics determined at conception. It rejects the concept of gender identity, emphasizing policies and definitions based solely on biological sex. The order directs the General Counsel and Chair of the Equal Employment Opportunity Commission (“EEOC”), amongst others, to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes, and to remove all statements, policies, regulations, forms, communications, or other internal and external messages promoting gender ideology. ?

IV.????????? New Acting Chair of the EEOC

President Trump nominated Andrea R. Lucas as the Acting Chair of the EEOC. Lucas has served as an EEOC Commissioner since 2020, having been nominated by President Trump during his first term. In a statement released on January 21, 2025, Lucas emphasized her commitment to restoring impartial enforcement of federal employment civil rights laws. She criticized the agency’s past inaction on various forms of discrimination and outlined her priorities, which include eliminating DEI-driven race and sex discrimination, addressing national origin discrimination against American workers, defending biological sex-based rights, protecting religious freedoms, and correcting areas of under-enforcement. Lucas rejected identity politics, affirming that civil rights laws protect individual rights rather than group-based outcomes and pledged to uphold equal opportunity, merit, and colorblind equality.

Under the direction of Lucas, the EEOC issued a statement on January 29, 2025, detailing some of the steps it has taken in compliance:

• Removed the agency’s “pronoun app,” a feature in employees’ Microsoft 365 profiles, which allowed an employee to opt to identify pronouns, content which then appeared alongside the employee’s display name across all Microsoft 365 platforms, including Outlook and Teams. This content was displayed both to internal and external parties with whom EEOC employees communicated.
• Ended the use of the “X” gender marker during the intake process for filing a charge of discrimination.
• Directed the modification of the charge of discrimination and related forms to remove “Mx.” from the list of prefix options.
• Commenced review of the content of EEOC’s “Know Your Rights” poster, which all covered employers are required by law to post in their workplaces.
• Removed materials promoting gender ideology on the Commission’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others. The agency’s review and removal of such materials remains ongoing. Where a publicly accessible item cannot be immediately removed or revised, a banner has been added to explain why the item has not yet been brought into compliance.

Of note, Lucas cannot unilaterally revoke or modify certain EEOC documents related to gender identity, as they were approved by majority vote. These include the EEOC’s workplace harassment guidance, strategic plan, and strategic enforcement plan. Lucas, who voted against these policies, has openly opposed provisions recognizing bathroom access and pronoun usage as potential harassment under Title VII. While she currently lacks the authority to rescind these provisions, Lucas has stated she remains opposed to their inclusion and aligned with the directives in the Gender Ideology Executive Order.

V.??????????? The Impact on the Private Sector

The Executive Order on DEI Initiatives instructs federal agencies to enforce longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities. For the private sector specifically, the order “encourages” the end of “DEI Discrimination and Preferences.” Further, federal agencies are directed to identify for investigation any private employers that use “illegal” DEI practices, and the agencies are to identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars. Those agencies are also instructed to identify litigation that would be appropriate for lawsuits and potential regulatory action.

While these orders are significant, employers should note that they do not change federal civil rights laws. It's crucial for employers to ensure that their employment practices align with existing federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin.

Should you have any questions about how these executive orders impact your business, please reach out to a BurnsBarton attorney to ensure your employment practices remain both compliant with federal law and aligned with organizational values.

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Citations

https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/

https://www.whitehouse.gov/presidential-actions/2025/01/defending-women-from-gender-ideology-extremism-and-restoring-biological-truth-to-the-federal-government/

https://thehill.com/homenews/administration/5098445-trump-executive-orders-first-day/

https://www.thetimes.com/us/american-politics/article/everything-trump-has-done-so-far-first-week-president-9wkvsdtzh

About the Author

Kate Bartholomy is licensed in Arizona. Kate’s practice is concentrated in labor and employment law and commercial litigation.