Attention Employers: *Part V* Timeline of President Trump’s Crusade Against DEI Initiatives in the Private Sector

Following up on our timelines documenting DEI-related events impacting the private sector, this fifth installment discusses new developments, including new cases and case updates, activity over at the U.S. Equal Employment Opportunity Commission (EEOC) and other federal agencies, significant wins and losses for DEI-proponents, and a whole lot more! 

As a reminder, the timelines track significant DEI-related events in the private sector pursuant to a series of anti-DEI executive orders (EO), including EO14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing), EO14168 (Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government), EO14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity), and EO14281 (Restoring Equality of Opportunity and Meritocracy).  For additional information on the EOs, see HERE and HERE. 

To get up to speed on matters referenced below, see Part I of our timeline HERE, Part II of our timeline HERE, Part III of our timeline HERE, and Part IV of our timeline HERE.

Part V: Timeline of DEI-Related Events in the Private Sector

May 13, 2025 (former federal officials rebuke EO eliminating disparate impact analysis):  A group of 10 former EEOC and U.S. Department of Labor (DOL) officials penned a letter stating that EO14281 – which aims to eliminate disparate impact liability – is contrary to Title VII of the Civil Rights Act of 1964 and will undermine meritocracy and equal employment opportunity (for details on the EO, see HERE).  Among other things, the letter states that:

• Disparate impact is “essential for advancing merit-based employment” because it addresses facially neutral practices that “may operate to systematically exclude qualified workers . . . based on protected characteristics for reasons that are not job-related”;
• Clarifies that disparate impact analysis neither requires nor permits employers to establish a preference based on a protected characteristic;
• Emphasizes that unjustified differences resulting from neutral policies means that individuals of different races or sexes are not being given an equal opportunity to succeed; and
• Advises employers to continue to adhere to the statutory requirements of Title VII because “existing statutes and case law will continue to govern employment anti-discrimination law” and “an [EO] cannot overrule that.” 

May 15, 2025 (federal court vacates EEOC guidance on LGBTQ+ protections):  In State of Texas and The Heritage Foundation v. EEOC, et al., U.S. District Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an order vacating portions of the EEOC’s April 2024 Enforcement Guidance on Harassment in the Workplace (Guidance) related to LGBTQ+ protections.  The court found that the EEOC “exceeded its statutory authority by issuing Enforcement Guidance requiring bathroom, dress, and pronoun accommodations” inconsistent with Title VII and recent Supreme Court precedent.  The court’s order vacates the following language in the Guidance:

• All language defining sex in Title VII to include “sexual orientation” and “gender identity”;
• Portions outlining – and an example of – unlawful harassment based on sexual orientation and gender identity; and
• All language defining “sexual orientation” and “gender identity” as a protected class. 

Although the EEOC acknowledged it cannot rescind or modify the guidance at this time, the agency “labeled and shaded the vacated portions” of the updated guidance “to assist the public following the federal court decision.”  For additional information, see HERE. 

May 16, 2025 (FCC approves Verizon merger following its commitment to end DEI):  The Federal Communications Commission (FCC) approved Verizon’s $20 billion deal to buy broadband provider Frontier Communications just a day after Verizon submitted a letter to the FCC outlining its efforts to end DEI initiatives.  In its statement, the FCC cites a list of reasons for the approval, including Verizon’s commitment to “ending DEI-related practices” and to “equal opportunity and nondiscrimination[,]” which will “ensure that the combined business will enact policies and practices consistent with the law and the public interest.” 

Among the steps taken, Verizon committed to “ending its DEI-related policies” effective immediately, to include:

• Removing human resources roles focused on “DEI”;
• Removing references to “DEI” from training materials;
• Eliminating supplier diversity metrics and supplier diversity programs;
• Ensuring employee resource groups remain open to all;
• Removing workforce diversity goals from management compensation plans;
• Eliminating leadership or development programs limited by demographic characteristics; and
• Removing its “Diversity and Inclusion” website and references to “DEI” in other company websites and future communications.

This development follows the FCC’s March 28 approval of T-Mobile’s deal to acquire fiber operator Lumos, which also came one day after T-Mobile submitted a letter informing the FCC that it ended certain DEI practices, such as eliminating diversity targets or goals in procurement policies and dissolving its “External Diversity & Inclusion Councils.”  T-Mobile also promised that the “proposed transaction with Lumos will result in the formation of a new company that . . . from its inception will not promote invidious forms of discrimination.” 

May 19, 2025 (USDOJ to pursue DEI policies under FCA):  The U.S. Department of Justice (DOJ) issued a memo announcing it would use the False Claims Act (FCA) to pursue claims against federal funding recipients or contractors that “certify compliance with civil rights laws while knowingly engaging in racist preferences, policies, programs, and activities, including through [DEI] programs that assign benefits or burdens on race, ethnicity, or national origin.”  This initiative is part of the administration’s larger effort to combat “DEI” policies through enforcement of several EOs, including EO14151, EO14168, and EO14173 (for details on the EOs, see HERE).

Among other things, the memo informs that:

• The Civil Fraud Section (CFS) and Civil Rights Division (CRD) will each identify a team of attorneys to pursue this initiative;
• Each of the 93 U.S. Attorney’s Offices will identify an Assistant U.S. Attorney to advance the effort; and
• The CFS and the CRD will engage with other federal agencies, state attorneys general, and local law enforcement to “share information and coordinate enforcement actions.” 

The letter also encourages private parties to file lawsuits and litigate claims under the FCA, and to report knowledge of discrimination by federal funding recipients to federal authorities.

May 19, 2025 (5^th Circuit strikes down FCC diversity reporting rule):  The Fifth Circuit struck down a 2024 FCC rule requiring television and radio broadcasters to compile and disclose employment diversity data to the FCC to gain insight into the industry’s hiring trends.  In  a unanimous decision, the court found the following:

• The FCC “lacks statutory authority to require broadcasters to submit employment data”;
• “While its authority to act in the public interest is broad, the FCC cannot invoke public interest to expand the scope of its authority to act in ways Congress has not authorized it to act”; and 
• Even if Congress ratified the data collection under the 1992 Cable Act – which instructed the FCC to collect and report data after Congress found an underrepresentation of women and minorities in the broadcast industry – the relevant EEO regulation authorizing the data collection is no longer in effect.

May 20, 2025 (EEOC’s reminders for 2024 EEO-1 Component 1 Data Collection):  In a statement announcing the opening of the 2024 EEO-1 Component 1 Data Collection, EEOC Acting Chair Andrea Lucas reminded employers that:

• “There is no ‘diversity’ exception to Title VII’s requirements”;
• Companies “may not use information about [their] employees’ race/ethnicity or sex—including demographic data [collected and reported] in EEO-1 Component 1 reports—to facilitate unlawful employment discrimination based on race, sex, or other protected characteristics in violation of Title VII”; and
• In light of EO14281, a neutral employment policy that has a “disparate impact” based on race or sex does not justify treating any employees differently based on their race or sex. 

The 2024 reporting procedures eliminate the option to report nonbinary employees.  The collection period to file 2024 EEO-1 Component 1 reports will not extend beyond the deadline of June 24, 2025.

May 21, 2025 (FCC grilled on Verizon-Frontier merger):  The FCC’s overnight approval of the Verizon-Frontier merger just a day after Verizon agreed to eliminate “DEI” initiatives did not go unnoticed during a budget oversight hearing on Capitol Hill.  According to Law360, lawmakers questioned the FCC about the deal and also inquired about “the legal justification the FCC used in launching the probe against Verizon [earlier this year,]” during which the FCC demanded answers about Verizon’s compliance with FCC equal opportunity rules. 

Proving you can’t get blood from a turnip:

• When asked whether the FCC had investigated any discrimination complaints against Verizon that were used as a factual basis for the inquiry, FCC Commissioner Brendan Carr responded that the FCC used its own process for the investigation and that the referenced limitations do not apply to the agency. 
• With respect to the merger, Carr said that – as with all merger transactions subject to FCC review – “we run a normal course process at the FCC, and we specifically have rules on our books that deal with EEO.”

May 22, 2025 (DHS revokes Harvard’s international enrollment certification):  While not exactly DEI-related, the administration’s latest attack on Harvard is sure to impact the diversity of its student body on campus.  Department of Homeland Security (DHS) Secretary Kristi Noem ordered the DHS to terminate Harvard’s Student and Exchange Visitor Program’s certification to enroll international students.  The DHS alleges the decision was based on Harvard’s failure to address anti-semitism and pro-terrorist conduct, but in a complaint filed against the DHS the following day, the university contends “[i]t is the latest act by the government in clear retaliation for Harvard exercising its First Amendment rights to reject the government’s demands to control Harvard’s governance, curriculum, and the ‘ideology’ of its faculty and students.” 

As you may recall, Harvard previously sued the government for freezing over $2.2 billion in federal funds for research following the government’s April 11 letter, in which the government cited “concerns of antisemitism and ideological capture” and demanded the university to “immediately shutter all [DEI] programs . . . to the satisfaction of the federal government[.]”  Similar to the prior complaint, Harvard argues there is no “rational link” between the government’s accusations of “anti-Americanism” and “the decision to retaliate against international students.”

May 22, 2025 (EEOC sums up first 120 days under new Trump Administration):  The EEOC released its roundup of “Historic Results for American Workers” over the first 120 days of the second Trump Administration.  Among the victories touted are the following: 

• “[R]ooted out DEI-related discrimination practices in our nation’s elite law firms” and “securing major commitments to merit-based employment practices”;
• “[U]nveiled comprehensive resource materials to help workers and employers understand, identify, and report DEI-related race and sex discrimination”;
• “[P]romised to hold American universities accountable for on-campus antisemitism and religious bias against employees;
• Announced the prioritization of “enforcement against unlawful national origin discrimination against American workers in favor of foreign workers”;
• “[R]emoved gender ideology from within the EEOC and restored its adherence to the binary and biological reality of sex”; and
• “[U]pdated its website to reflect a federal court striking down portions of EEOC’s Enforcement Guidance on Harassment in the Workplace[.]”

May 22, 2025 (non-profits challenge constitutionality of anti-DEI EOs):  In San Francisco AIDS Foundation et al. v. Donald J. Trump et al., a group of non-profits argued its case against the administration that EOs 14168, 14151, and 14173 are impermissibly vague and discriminate on the basis of sex and transgender status.  According to Law360, the non-profits argued that the vagueness of the EOs make it impossible to know whether they have violated the EOs or will face funding cuts for serving the transgender community (for details on the EOs, see HERE). 

• When U.S. District Judge Jon S. Tigar of the U.S. District Court for the Northern District of California inquired whether a non-profit would face funding cuts for identifying staffers by personal pronouns or providing clientele with unisex bathrooms, the government responded in the affirmative. 
• When asked if any DEI programs could be legal under the EOs, the government replied that whether a program would constitute an egregiously illegal DEI program is “a question of enforcement” left to each individual federal agency. 
• The non-profits also noted that the government has been searching LinkedIn profiles for organization leaders that use personal pronouns to decide which federal contracts to terminate. 

May 23, 2025 (federal court strikes down Jenner & Block EO):  U.S. District Judge John D. Bates of the U.S. District Court for the District of Columbia granted the firm’s April 8 motion for summary judgment and permanent injunction, finding that the Jenner & Block EO violates the Constitution.  For details on the Jenner & Block EO, see HERE. 

In reaching its decision, the court noted the following: 

• The administration “makes no bones about why it chose its target: it picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed.  Going after law firms in this way is doubly violative of the Constitution.” 
• Retaliating against firms for their views “violates the First Amendment’s central command that government may not ‘use the power of the State to punish or suppress disfavored expression.’”
• The EO “seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers.”

In a lengthy order,  Judge Bates declared the EO unlawful and permanently enjoined the defendants from implementing or enforcing the EO.  Among other things, the order:

• Directed the defendants to notify all affected personnel that the EO is null and void;
• Directed the defendants to rescind all guidance or direction to affected personnel to implement or enforce the EO;
• Directed the defendants to notify recipients of requests to disclose any relationship with the firm that the request is rescinded; and
• Directed the EEOC to cease any investigation into the firm. 

Although Judge Bates enjoined the EO in full, the order specifically enjoined defendants from “implementing or enforcing Sections 2-5 of [the EO] in any way.”  More on that below.

May 27, 2025 (federal court strikes down WilmerHale EO):  In an enthusiastic opinion – peppered with 26 exclamation points – U.S. District Judge Richard J. Leon of the U.S. District Court for the District of Columbia granted the firm’s April 8 motion for summary judgment, agreeing with the firm that the WilmerHale EO violates the First, Fifth, and Sixth Amendments and the separation of powers.  For details on the WilmerHale EO, see HERE.

Among other things, the court found that:

• The EO “is intended to, and does in fact, impede the firm’s ability to effectively represent its clients[,]” and that – as the retaliatory measure it is – the EO “shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!” 
• While President Trump can express his views and criticize particular beliefs, he cannot “use the power of the State to punish or suppress disfavored expression.”   
• The EO is “an unconstitutional impairment on the firm’s and federal contractors’ freedom of association”; and
• The “intended and actual effect of the [EO’s] sanctions is to drive clients away from WilmerHale!”

In a separate order, the court:

• Declared the WilmerHale EO unconstitutional and permanently enjoined the defendants from “implementing or giving effect to [the EO]”;
• Ordered the defendants to take immediate steps to reverse any implementation or enforcement of the EO; and
• Directed the defendants to immediately instruct affected personnel to disregard the EO.

May 28, 2025 (government cuts research funds under anti-DEI policy directive):   In yet another attempt by the administration to cut federal funds for research – albeit against a public entity in this matter – a group of 16 state attorneys general (AGs) – led by New York and joined by Hawaii, California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Washington and Wisconsin – sued the administration for terminating millions in grant funds for the National Science Foundation’s (NSF) scientific research and programs aimed to increase the participation of women, minorities, and persons with disabilities in STEM fields. 

The funding cut stems from a new policy directive that terminated “[a]wards that are not aligned with program goals or agency priorities . . . including but not limited to those on [DEI.]”  Among other things, the AGs asked the court to declare the policy directive unlawful, and to vacate and block implementation of the directive.

June 2, 2025 (judge reaffirms Jenner & Block EO enjoined in full):  In response to the DOJ’s May 29 last ditch effort to limit the May 23 permanent injunction – which specifically enjoined the defendants from “implementing or enforcing Sections 2-5 of the [EO] in any way” – Judge Bates issued another order reaffirming that the EO is “enjoined in full.”  The court reasoned that, while the order specifically enjoined the implementation of Sections 2-5, Section 1 “played an essential role in the [EO]” as it “supplied the rationale for Sections 2 through 5[.]”  Additionally, Section 1 was referenced several times, “each time making clear that any actions already taken pursuant to Section 1 must be undone.” 

To quell any remaining doubt, Judge Bates declared that “the Court meant what it said: the direction contemplated in Section 9 of the Order must instruct entities subject to the executive order to ‘rescind any implementation or enforcement of [the EO], including any use, consideration, or reliance on the statements in Section 1.’”

June 5, 2025 (U.S. Supreme Court strikes down heightened standard for Title VII majority group claims):  In Ames v. Ohio Department of Youth Services (No. 23-1039), the U.S. Supreme Court held that the Sixth Circuit’s “background circumstances” rule – which imposes a heightened evidentiary standard for a majority group to prevail on a Title VII claim – “cannot be squared with the text of Title VII or the Court’s precedents[,]” which reinforce and make clear that the standard does not vary based on whether the plaintiff is a member of a majority group. 

Here’s what you need to know:

• Plaintiff was denied a promotion and ultimately accepted a position that amounted to a demotion with lower pay. 
• The employer then hired a gay man to fill her prior position and promoted a lesbian to the position plaintiff sought. 
• Plaintiff filed a lawsuit under Title VII alleging discrimination based on her sexual orientation. 
• The Sixth Circuit held that – as a member of a majority group (i.e., a straight woman) – plaintiff failed to meet the additional burden of establishing “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” 

In a unanimous opinion, the U.S. Supreme Court vacated the Sixth Circuit’s judgment and held that “Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs[,]” but rather “makes it unlawful ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [the terms and conditions] of employment because of [their protected characteristics].’”  The Court concluded that “Title VII does not impose . . . a heightened standard on majority-group plaintiffs.”

Justice Clarence Thomas had more to say in a concurring opinion that:

• Criticized the “background circumstances” rule as “a product of improper judicial lawmaking” created by judges “applying their own ‘common sense.’” 
• Highlighted the difficulty of requiring judges to decide “whether a particular plaintiff qualifies as a member of the so-called ‘majority.’” 
• Noted that the “background circumstances” rule is “nonsensical” in requiring courts to assume that only an “unusual employer” would discriminate against the perceived majority because “a number of this Nation’s largest and most prestigious employers have overtly discriminated against . . . so-called majority groups” as “American employers have long been ‘obsessed’ with ‘[DEI]’ initiatives and affirmative action plans.”

More to come in forthcoming eAlert.

June 9, 2025 (federal judge blocks funding cuts under anti-DEI EOs):  Following the May 22 arguments in San Francisco AIDS Foundation et al. v. Donald J. Trump et al., Judge Tigar issued an order blocking parts of President Trump’s anti-DEI EOs, finding that the group of non-profits is likely to succeed in showing that federal funding cuts under the following provisions violate their constitutional rights: 

• The “Certification Provision” requiring plaintiffs to certify that they do “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws”;
• The “Equity Termination Provision” directing agencies to terminate funding for all “equity related grants or contracts”; and
• The “Gender Termination” and “Gender Promotion” provisions commanding agencies to terminate funding for any programs that “promote gender ideology[.]”

Judge Tigar found the provisions “reflect an effort to censor constitutionally protected speech and services promoting DEI and recognizing the existence of transgender individuals[,]” and “[w]hile the Executive requires some degree of freedom to implement its political agenda, it is still bound by the Constitution.”  Judge Tigar further stated that “[the Executive] cannot weaponize Congressionally appropriated funds to single out protected communities for disfavored treatment or suppress ideas that it does not like or has deemed dangerous” or “do so in such a vague manner that all federal grantees and contractors are left to wonder what activities or expression they can engage in without risking the funding on which they depend.”  

Employer Takeaways

While employers struggle to balance competing interests and conflicting guidance from the administration, agencies, courts, and state and local laws – as we previously mentioned HERE – a helpful starting point is knowing that the EEOC continues to define Title VII’s purpose as “prohibit[ing] employment discrimination based on protected characteristics . . . . no matter which employees are harmed.”  Accordingly, employers should ensure all employees are afforded equal opportunities, regardless of any protected characteristics, and – in light of the Ames decision – any perceived “majority” status.  Employers should also continue to comply with all applicable federal, state, and local anti-discrimination laws.

• For recommendations to promote “effective and lawful [DEI] practices,” see guidance from 10 former DOL officials HERE.
• For a framework on “lawful ways to increase diversity and remove barriers to equal employment opportunity” in the workplace, see guidance from 10 former EEOC officials HERE.
• For best practices to implement lawful DEI initiatives issued by 16 AGs, see HERE.

If you have any questions related to any timeline events or its impact on your organization, or would like to conduct an audit of your organization’s efforts to ensure all employees and applicants are afforded equal opportunity in the workplace, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.