Understanding Employer Compliance Under the Latest Executive Orders on DEI and LGBTQ+ Issues

In the last couple of weeks, President Trump has issued several executive orders addressing Diversity, Equity, and Inclusion initiatives within the federal government and for government contractors. President Trump has also directed the EEOC to stop recognizing certain protections for transgender people under Title VII of the Civil Rights Act of 1964.

Executive Order 11246 specifically directs the Office for Federal Contract Compliance Programs (OFCCP) to stop “holding Federal contractors and subcontractors responsible for taking ‘affirmative action,’” 90 days from the date of the order (January 20, 2025). The Executive Order allows for voluntary diversity, equity, and inclusion programs that do not “violate Federal antidiscrimination laws.”

Naturally, employers in the private sector may wonder whether their DEI initiatives are legally permissible, and if not, what they should do about programs in the workplace that address these issues.

The first key takeaway is that President Trump’s executive orders addressing DEI initiatives are largely limited to the federal workforce. Any employer that contracts or receives funding from the federal government should also pay special attention to these executive orders so as not to jeopardize contracts or funding opportunities. Higher education institutions, defense contractors, and other employers that do business with the federal government must be aware of a recent Executive Order that directs the Office of Management and Budget to compile a list of all federal contractors and grantees that have provided DEI training, environmental justice programs or services since January 20, 2021. It is unclear what the exact consequences will be for any entity that had DEI initiatives during the previous administration, but it is advisable for these organizations to review their DEI programming, and at a minimum, consider removing all outright references to diversity, equity, and inclusion. Some universities have closed offices that handle diversity, equity and inclusion matters following directives that universities must certify that they do not run “programs promoting DEI that violate any applicable Federal antidiscrimination laws” after receiving federal grants. It is possible that additional guidance is coming in the next 90 days for federal contractors on whether they must continue reporting their affirmative action efforts to OFCCP.? For now, it is likely that OFCCP will pause audits.

Non-profit institutions should review all programming and consider wordsmithing their programs addressing diversity, equity, and inclusion. The Supreme Court case Students for Fair Admissions v. Harvard is one that all colleges and universities must review and apply to their admissions practices. These institutions may consider adopting approaches that prioritize students from lower socioeconomic strata, because socioeconomic status is not a legally protected category under current law. The effect of a policy like this may achieve the objectives of past DEI initiatives. Reframing of an initiative may be necessary for organizations to avoid or limit scrutiny of their practices.

It is also important to keep in mind that even if federal law on equal employment opportunity is changing, state laws addressing these issues remain intact. For example, in New Hampshire, it is illegal to discriminate against or harass someone in the workplace based on their sexual orientation or gender identity. Many states have parallel statutes. Even though Executive Order 14166: “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace” directs the EEOC to recognize only two sexes and remove all references to gender identity or gender-neutral pronouns from its intake forms, the New Hampshire Law Against Discrimination, RSA 354-A, still recognizes a cause of action for discrimination in the workplace on the basis of one’s gender identity or sexual orientation. New Hampshire employers should continue to remain compliant in this arena by honoring transgender employees’ requests regarding pronouns, preferred names, and other gender-specific topics to avoid running afoul of state law. Likewise, LGBTQ+ parents are entitled to the same benefits such as parental and adoption leave if the employer offers these benefits to heterosexual parents.

Any programming or initiative that specifically focuses on certain racial, ethnic, religious, or cultural groups may need to be rethought following issuance of these executive orders. Notably, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act are not affected by these executive orders, meaning that hiring and recruitment initiatives that allow preference for Vietnam War veterans and people with disabilities are still permissible for federal contractors.?

It is unclear whether these changes will affect equal opportunity employment law beyond President Trump’s current term in office, but it is important for employers to follow these developments to maintain compliance with the law.?

If you have questions about this update, or any aspect of employment law, you may contact the Employment Law group at Devine Millimet at: 603-669-1000.

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Deirdre Salsich

Of Counsel

Employment Law Compliance

Devine Millimet

[email protected]

603-695-8769