On March 27, 2025, in Chicago Women in Trades v. Trump et al., U.S. District Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois issued a narrow temporary restraining order (TRO) limiting enforcement of the Certification Provision in Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) and the Termination Provision in Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferences).
The ruling comes just two weeks after the Fourth Circuit granted the government’s motion to stay a nationwide injunction blocking enforcement of the same provisions in addition to parts of the Enforcement Threat Provision in Executive Order 14173 (see HERE).
Background
In Chicago Women in Trades v. Trump et al., the plaintiff challenged Executive Orders 14151 and 14173 as unconstitutionally vague in violation of the First Amendment’s Free Speech Clause and the Fifth Amendment’s Due Process Clause and, additionally, that the Executive Orders unconstitutionally condition federal funds on an agreement not to engage in protected speech.
Executive Orders Likely Violate First Amendment Rights
The court ruled that the plaintiff “established a likelihood of success on its claims that the Termination and Certification Provisions violate its First Amendment rights.” Among other things, Judge Kennelly found the Termination Provision is likely a “coercive threat[,]” and the provision’s vagueness gives rise to First Amendment issues; and the Certification Provision puts plaintiff and other grantees in a “difficult and perhaps impossible position” to eliminate “illegal DEI programs” without guidance on what constitutes “illegal DEI.”
Judge Kennelly also found the plaintiff established a “sufficiently imminent injury” by showing it received “credible threats of enforcement” and “had one of its subcontracts terminated due to the Executive Orders.” Accordingly, Judge Kennelly ruled that a TRO would be necessary to prevent “irreparable harm that would result from enforcement of the provisions.” Judge Kennelly, however, limited the scope of the TRO only to actions by the U.S. Department of Labor (DOL).
Scope of the Temporary Restraining Order
Pursuant to the ruling, the scope of the TRO applies as follows:
- Certification Provision: Enforcement blocked nationwide for all DOL grant recipients.
- Termination Provision: Enforcement blocked only for the plaintiff and any federal grantee through which plaintiff holds a subcontract or is a subrecipient of federal funds.
Employer Takeaways
A hearing to extend the TRO is scheduled for April 10, 2025, at which time, the court may issue a broader injunction. In the meantime:
- DOL grant recipients will not be required to certify that they (1) are in compliance with all applicable federal anti-discrimination laws for False Claims Act purposes, and (2) do not operate any programs “promoting DEI” that violate any applicable federal anti-discrimination laws.
- The Termination Provision is still in effect, which requires federal agencies to terminate all “equity-related grants or contracts.”
As we previously reported HERE, there are several pending lawsuits that challenge the DEI-related Executive Orders. We anticipate conflicting rulings in the weeks and months ahead and expect that the Supreme Court will eventually need to rule about the constitutionality of the Executive Orders. We will continue to keep you posted on these developments.
If you have any questions related to the TRO or its impact on your organization, or need assistance reviewing your DEI policies, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.