On February 21, Judge Adam B. Abelson of the United States District Court for the District of Maryland issued a preliminary injunction that temporarily bars the Trump administration from implementing major portions of two recently issued executive orders aimed at ending diversity, equity, and inclusion (DEI) programs in the workplace. The challenged executive orders are titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” and “Ending Radical and Wasteful Government DEI Programs and Preferencing.” The judge based his reasoning on free speech and vagueness grounds.

The organizations that brought the case challenged the following provisions of the executive orders:

• Termination Provision. This directs certain government officials to terminate all DEI programs in the federal government.
• Certification Provision. All government contracts and grant awards are required to include a provision that requires the recipient to certify it does not have a DEI program that violates federal anti-discrimination laws.
• Enforcement Threat Provisions: These direct certain government officials to submit a report that outlines enforcement recommendations to deter private-sector DEI programs.

The preliminary injunction blocks the federal government from implementing the Termination and Certification Provisions, and it partially blocks the Enforcement Threat provisions. With regard to the Enforcement Threat provisions, the judge declined to prevent the attorney general from investigating and creating a report on private sector DEI practices based on “separation-of-power reasons.”

What this means for employers and federal contractors:

The preliminary injunction grants some temporary relief for federal contractors who expressed uncertainty regarding potential liability under the False Claims Act for false certifications in the absence of guidance as to what the administration would regard as a “discriminatory DEI program.”

Though news of the preliminary injunction may come as a relief to private employers that have DEI programs, nothing in the injunction precludes the EEOC from pursuing its enforcement priorities, which clearly include action against DEI programs it views as discriminatory. As noted above, the injunction stopped short of barring the administration from investigating private-sector employers to create a list of the “most egregious and discriminatory DEI practitioners.”

It is worthwhile to note that the preliminary injunction does not enjoin all aspects of the executive orders. For example, the provision that revoked Executive Order No. 11246 (Equal Employment Opportunity) is not affected by the injunction. EO 11246 prohibited employment discrimination by federal contractors and subcontractors, and required them to have specific affirmative action policies for women and minorities.

The Trump administration is expected to appeal the injunction. We will monitor the status of legal challenges to these and other executive orders.

See “Recent Executive Orders’ Potential Impact on Private Employers” and “Potential Impacts of Trump’s DEI Executive Order on SBAs, Alaska Native Corporations, and Tribes” for discussion of the executive orders subject to the preliminary injunction.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.