In Part VIII of our timelines tracking DEI-related events impacting the private sector, and key public sector developments providing insight into what may be headed for private sector workplaces, we continue the discussion of recent executive actions, updates on new and existing cases, and significant agency activity directed at “unlawful” DEI initiatives. While the October 1 government shutdown limited operations for several federal entities, proponents and opponents of DEI maintained momentum with developments continuing at a steady pace. As the government shutdown ends, we expect developments to resume full speed ahead.
As a reminder, the timelines track significant DEI-related events impacting the private sector pursuant to a series of anti-DEI executive orders (EO) (see HERE and HERE and HERE), 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)
- EO14281 (Restoring Equality of Opportunity and Meritocracy)
To get up to speed on matters referenced in Part VIII, see:
- Part I of our timeline HERE
- Part II of our timeline HERE
- Part III of our timeline HERE
- Part IV of our timeline HERE
- Part V of our timeline HERE
- Part VI of our timeline HERE
- Part VII of our timeline HERE
Part VIII: Timeline of DEI-Related Events Impacting the Private Sector
September 15, 2025 (EEOC to close disparate impact charges by Sept. 30): According to an internal EEOC memo, the agency directed its field offices to close all pending charges based solely on disparate impact discrimination by September 30, 2025. Although charges that allege both disparate impact and disparate treatment theories will remain open, staff have been instructed to only investigate disparate treatment claims. The agency is expected to issue right-to-sue notices to parties whose charges will be closed. This decision aligns with EO14281, which directs federal agencies to deprioritize disparate impact claims.
September 18, 2025 (DOJ recommends “situational telework” as religious accommodation): The U.S. Department of Justice (DOJ) released an advisory memo on religious liberty protections for federal employees under Title VII, stating that “situational telework can and should be used as a form of religious accommodation[,]” but that whether it is an appropriate accommodation is always a “fact-specific inquiry.” For employees who are unable to telework effectively due to the nature of their duties, performance history, or other considerations, the DOJ recommends alternative accommodations, such as “shift swapping.” The DOJ also warned that denying telework “in the name of purported fairness toward employees” would be unlawful. Although the memo is intended for federal agencies, the EEOC may apply these principles to private sector employers in the near future.
September 19, 2025 (NJ Supreme Court denies review of NJSBA diversity practices): The New Jersey Supreme Court rejected a petition to review a lower court’s decision approving the New Jersey State Bar Association’s (NJSBA) diversity practice of reserving some leadership seats for certain demographic groups. While the plaintiff alleged the practice discriminated against him in violation of the New Jersey Law Against Discrimination, the appellate court found that the NJSBA’s practice reflects its long-standing commitment to promoting diversity in the legal profession, and to compel the organization to alter or eliminate the program would violate its First Amendment right of expressive association.
September 22, 2025 (judge bars termination of DEI-related research grants): Following U.S. District Judge Rita F. Lin’s earlier preliminary injunction barring the Environmental Protection Agency, National Science Foundation, and National Endowment for the Humanities from terminating grants to University of California (UC) researchers pursuant to anti-DEI EOs 14151 and 14173 (see August 21 entry HERE), Judge Lin handed UC researchers another win ordering the reinstatement of research grants terminated by the Department of Defense, Department of Transportation, and National Institutes of Health pursuant to the same EOs. Finding that the terminations likely violated the First Amendment, and that the plaintiffs are likely to succeed on their claims that the terminations were arbitrary and capricious under the Administrative Procedure Act (APA), Judge Lin issued a preliminary injunction vacating all grant terminations enacted without “a grant-specific explanation . . . for the change to the original award decision[,]” and all terminations stemming from EOs 14151 or 14173.
September 24, 2025 (ABA says “Law Firm Intimidation Policy” injuries not “hypothetical”): The American Bar Association (ABA) opposed the administration’s contention that the organization’s claims are “hypothetical” (see August 8 entry HERE), arguing that the “Law Firm Intimidation Policy” “exists and constitutes a credible threat of adverse government action[,]” and that it has – and continues to – “[chill] protected speech and conduct of lawyers across the country[.]” The ABA cites the EOs issued against five law firms and the President’s threat to do the same to other firms “that did not ‘behave’”; the several law firms that “agreed to forgo constitutionally protected expression” to avoid potential EOs; and changes to lawyers’ and firms’ “speech and conduct to avoid scrutiny and retaliation from the Administration[.]” For support from BigLaw, see September 26 entry below.
September 24, 2025 (MO Supreme Court told transgender care ban is discriminatory): The Missouri Supreme Court heard oral arguments in a lawsuit filed against the state by a group of families and medical providers alleging that a state law banning gender-affirming care for minors and restricting Medicaid coverage for transgender care violates state constitutional rights to equal protection and due process, and the right to parental autonomy. While the state argued that the law is necessary to protect minors from “medical and scientific uncertainty,” the appellants pointed out that the Medicaid restrictions on transgender care for all ages undermines its assertion. The appellants further argued that the law is clearly discriminatory because it directly targets “gender transition” – a defining feature of gender identity – and notes that the law was part of an anti-transgender legislative package that also banned students from playing on sports teams that do not align with their birth sex.
September 26, 2025 (states sue HHS over gender ideology-related funding conditions): A group of 16 states and the District of Columbia sued the U.S. Department of Health and Human Services (HHS) for threatening to suspend or terminate congressionally appropriated funding for adolescent sexual health education programs unless funding recipients “remove all content concerning gender ideology from . . . its program delivery” by October 27, 2025. The states allege the conditions violate the APA, spending clause, and separation of powers; and asked the court to enjoin the HHS from implementing or enforcing the conditions. For the court’s decision, see October 27 entry below.
September 26, 2025 (BigLaw supports ABA’s Law Firm Intimidation suit): Law Firm Partners United (LFPU), a coalition of over 850 BigLaw partners, filed an amicus brief in support of the ABA’s lawsuit against the Trump Administration’s law firm intimidation campaign, stating that the law firm EOs “threaten the legal profession, the judiciary, and the rule of law itself[,]” and “tell the entire profession that taking on cases and clients that are out of favor with the current administration may result in severe retaliation.” LFPU argues that the EOs exceed presidential authority, intrude on judicial functions, violate the rights of the ABA and its members, and violate the guarantee of due process and right to counsel.
September 30, 2025 (DOJ investigates school district’s DEI initiatives): The DOJ announced an investigation into Des Moines Public Schools (DMPS) “to determine whether it engages in employment practices that discriminate based on race, color, and national origin in violation of Title VII[.]” In a letter sent to DMPS, the DOJ cites DEI initiatives on which the investigation is based, including DMPS’:
- Board Governance Policy requiring the composition of the teaching and learning staff to reflect the demographics of the student population.
- 2021 Affirmative Action Plan goal to “increase the number of teachers of color” in kindergarten through fifth grade.
- Strategic Plan to maintain and grow affinity spaces, create a plan to “lift up voices of our People of Color,” and create a focus group for recommendations to “create a safer environment for People of Color.”
- 3D Coalition project’s aim “to identify aspiring minority teachers and guide them through the postsecondary education needed to teach in Des Moines.”
October 1, 2025 (government shuts down): The government shutdown impacted several federal entities – including the EEOC and federal judiciary – resulting in limited operations until further notice.
October 1, 2025 (private Christian institution battles WA anti-discrimination law): Seattle Pacific University (SPU) – a private Christian institution – moved for summary judgment urging the court to block the Washington State Attorney General’s investigation of its practice to only hire candidates who share its religious views as a potential violation of the state’s anti-discrimination law. Among other things, SPU argues that the law violates its First Amendment right to free exercise of religion and expressive association. While the district court previously dismissed the lawsuit citing a lack of redressability, the Ninth Circuit later revived the claims finding that SPU had standing because it intended to continue its hiring practices, and the Attorney General intended to continue its investigation.
October 7, 2025 (EEOC quorum restored – expected changes): In a 51-47 vote, the U.S. Senate confirmed Brittany Bull Panuccio to serve as a commissioner of the EEOC. The confirmation restores the necessary quorum for agency action and provides Republicans with a majority on the Commission. Based on the EEOC’s recent priorities, here are some changes to expect:
- Continued elimination of and additional guidance on “unlawful” DEI
- Rescission of the Pregnant Workers Fairness Act rule requiring employers to provide accommodations for an abortion procedure
- Expanded religious rights, potentially impacting LGBTQ+ workers’ claims of hostility or misgendering by coworkers asserting religious opposition
- Guidance on the agency’s interpretation of the Bostock v. Clayton County ruling
- Recission of parts of the Enforcement Guidance on Harassment in the Workplace regarding gender identity and sexual orientation protections
- Increased prosecution of “reverse discrimination” claims
October 7, 2025 (7th Cir. affirms chosen pronoun accommodation not undue hardship): The Seventh Circuit declined to revisit its decision to reinstate a Title VII religious bias suit filed by a former teacher who alleged he was forced to quit when he refused to use the chosen names of transgender students (see August 5 entry HERE). The ruling affirms the panel’s finding that an accommodation allowing the plaintiff to refer to transgender students by their last names did not rise to the level of an undue hardship.
October 7, 2025 (DOJ fights to alter transgender care subpoena judgment): Back in September, U.S. District Judge Myong J. Joun granted Boston Children’s Hospital’s (BCH) motion to quash the DOJ’s subpoena seeking transgender care records finding the subpoenas were “motivated only by bad faith” to end gender-affirming care (see September 9 entry HERE). The DOJ followed up, filing a motion to alter the judgment stating that the court erroneously shifted and heightened the burden of proof, failed to provide the government an opportunity to meet the standard, and made an unsupported finding of bad faith. For states’ support of BCH, see October 21 entry.
October 15, 2025 (EEOC seeks to toss challenge to LGBTQ+ protections rollback): The EEOC filed a motion to dismiss an LGBTQ+ advocacy organization’s lawsuit alleging the agency’s rollback of protections against sexual orientation and gender identity discrimination violate Title VII, the Equal Protection Clause, and the APA (see July 29 entry HERE). Among other things, the EEOC argues that the organization lacks standing to bring the claims, and that both the plaintiff and the court lack the authority to challenge or dictate the agency’s decisions on “[w]hen to investigate violations of federal law and when to enforce those laws[.]”
October 20, 2025 (cities sue over DEI-related conditions on disaster grants): The cities of Chicago, Boston, New York, Minneapolis, New Haven, St. Paul, and Ramsey County, Minnesota sued the administration for imposing “unlawful conditions” on disaster-related federal grants, which require grant recipients to agree not to “operate any programs that advance or promote DEI,” and to “agree . . . to comply with all executive orders the President has issued and might in the future issue to advance . . . his domestic political agenda[.]” The cities argue that the conditions are “arbitrary and capricious” and unrelated to the grants’ purpose, and urge the court to enjoin the government from imposing or enforcing the conditions.
October 20, 2025 (EEOC sued for closing disparate impact charges): A former Amazon worker sued the EEOC for arbitrarily and capriciously ending investigations of disparate impact liability complaints under Title VII and the Age Discrimination in Employment Act (ADEA). The complaint follows the agency’s directive to administratively close all charges alleging disparate impact discrimination by September 30 (see September 15 entry). Among other things, the plaintiff asks the court to declare the agency action unlawful under Title VII, the ADEA, and the APA; and to vacate and set aside the September 2025 directive.
October 21, 2025 (states urge judge not to alter DOJ transgender care subpoena judgment): A group of 18 states and the District of Columbia filed an amicus brief imploring Judge Joun to deny the DOJ’s motion to alter the transgender care subpoena judgment (see October 7 entry), and warning that allowing the request would “impose potential criminal liability to those who administer a sweeping array of health care,” cause “profound disruptions across the entire medical field,” and “threaten the health and welfare of the people of Massachusetts and other Amici States[.]” To see further action from the government, see October 27 entry.
October 22, 2025 (judge voids HHS regs protecting ACA gender-affirming care): U.S. District Judge Louis Guirola, Jr. struck down an HHS rule that protected gender-affirming care under the Affordable Care Act (ACA), finding that the HHS exceeded its authority by implementing regulations “redefining sex discrimination and prohibiting gender-identity discrimination.” Judge Guirola, Jr. reasoned that because the ACA bars discrimination under Title IX, the government is bound by the definition of sex discrimination when Title IX was enacted. At the time, Judge Guirola, Jr. explained, Congress sought to prohibit sex discrimination in education and did not “contemplate gender identity, transgender status, or ‘gender-affirming care.'” Accordingly, Judge Guirola, Jr. voided parts of the rule “to the extent that they expand Title IX’s definition of sex discrimination to include gender-identity discrimination.”
October 22, 2025 (UVA strikes deal with Trump Administration): The Trump Administration announced an agreement with the University of Virginia (UVA) requiring the school to apply the DOJ’s guidelines on unlawful DEI in exchange for federal funding eligibility and to end the DOJ’s civil rights investigations into UVA’s admissions and financial aid processes. Unlike prior deals with Columbia University (see July 23 entry HERE) and Brown University (see July 30 entry HERE), UVA will not be required to pay a financial settlement. This marks the first public university to enter an agreement with the administration.
October 23, 2025 (Columbia-based org sues government for law firm agreements records): A free speech institute at Columbia University accused the DOJ and the Office of Management and Budget (OMB) of violating the Freedom of Information Act (FOIA) by failing to process and/or release records related to agreements made between several law firms and the administration within the FOIA-mandated timeline. The agreements stem from the EEOC’s March 17 letters sent to 20 law firms requesting information about DEI-related employment practices (see HERE), which resulted in at least nine firms entering agreements to eliminate DEI initiatives and provide millions in pro bono work. The institute asked the court to declare that the DOJ and OMB have violated FOIA and to order the agencies to immediately process and release the records.
October 27, 2025 (DOJ says transgender care subpoena necessary): The DOJ supported its motion to alter Judge Joun’s judgment granting BCH’s motion to quash a subpoena seeking transgender care records (see October 7 entry), asserting that the subpoena is necessary to investigate unlawful off-label drug use, and that the agency’s investigative authority cannot be litigated in an administrative subpoena matter.
October 27, 2025 (WA State AG tells 9th Cir. to uphold win for Seattle DEI programs): Washington State Attorney General Nicholas Brown filed an amicus brief urging the Ninth Circuit to uphold Seattle’s summary judgment win in a lawsuit filed by a former employee who alleged the city’s DEI programs created a hostile work environment for white employees. Among other things, Attorney General Brown states that DEI programs are “critical and effective” at fostering equitable workplaces, that “properly implemented” DEI programs comply with state and federal law, and that the appellant’s claims are based on “fundamental misconceptions” about established DEI practices.
October 27, 2025 (judge bars HHS conditions on teen sex education funds): Following up on the lawsuit filed by 16 states and the District of Columbia accusing the HHS of imposing unlawful conditions on funding for adolescent sexual health education programs that included “gender ideology” (see September 26 entry), U.S. District Judge Ann L. Aiken issued a preliminary injunction barring the HHS from implementing or enforcing the conditions, finding that the states are likely to succeed on their claims that the conditions are “unconstitutional, in excess of statutory authority, and arbitrary and capricious[.]”
October 30, 2025 (judge upholds nationwide injunction of certification provision): U.S. District Judge Matthew F. Kennelly upheld the court’s April 14 nationwide preliminary injunction barring the U.S. Department of Labor (DOL) from enforcing EO14173’s certification provision requiring DOL grantees and contractors to certify they do not operate any unlawful DEI programs (see April 14 entry HERE). Applying the U.S. Supreme Court’s Trump, et al. v. CASA, Inc., et al. ruling that federal district courts likely do not have the Congressional authority to issue nationwide injunctions (see HERE), Judge Kennelly held that the broad injunction is necessary to provide complete relief based on the non-profit’s cross-country collaborative partnerships, and to protect its “ability to partner and collaborate with others[.]” Due to the widespread chilling effect of the provision, Judge Kennelly found the only “one feasible option” to afford complete relief is to enjoin all enforcement of the certification provision.
October 31, 2025 (ABA changes legal scholarship diversity requirements): Following the ABA’s motion to dismiss the American Alliance for Equal Rights’ (AAER) lawsuit challenging diversity requirements for the organization’s Legal Opportunity Scholarship Fund (see July 30 entry HERE), the ABA quietly swapped out the requirement for applicants to “be a member of an underrepresented racial and/or ethnic minority,” with the requirement that applicants “must have demonstrated a strong commitment to advancing [DEI].” According to a Notice filed by the AAER, the changes – made without a public announcement or notice to the court – indicates the ABA agrees with the AAER that “the racial bar is not a sincere part of the ABA’s expression, and that prohibiting this discrimination would not affect the ABA’s advocacy or beliefs.”
October 31, 2025 (judge halts enforcement of anti-DEI EOs against Seattle): U.S. District Judge Barbara J. Rothstein issued a preliminary injunction barring the government from implementing or enforcing against the City of Seattle EO14173’s requirement that funding recipients certify compliance with federal anti-discrimination laws for False Claims Act purposes, and EO14168’s directive to federal agencies to ensure that federal funds do not “promote gender ideology.” Judge Rothstein found the city was likely to succeed on its claims that the funding conditions are arbitrary and capricious, in excess of statutory authority, and in violation of the separation of powers.
November 10, 2025 (USSC won’t revisit 2015 marriage equality decision): The U.S. Supreme Court rejected a petition to reconsider its landmark 2015 decision granting same-sex couples the right to marry. The petitioner – who refused to issue a same-sex marriage license on religious grounds – contended that the ruling “had no basis in the Constitution” and forced her to choose “between her religious beliefs and her job.” Among other things, the petitioner appealed a $100,000 jury award for emotional distress damages to the couple denied a marriage license and asked the Court to consider whether the First Amendment provides an affirmative defense for government officials sued in their personal capacity for constitutional violations.
November 12, 2025 (government shutdown ends): President Trump signed a funding package, bringing the government shutdown to an end.
Employers Takeaways
As the government shutdown concludes – and in light of the EEOC’s restored quorum – employers should remain vigilant for DEI-related developments. As this installment demonstrates, there is neither a substantial decrease in activity nor any indication that either side is backing down. While employers should monitor for agency guidance and consider the potential impact on their organizations, they should not lose sight of the existing federal, state, and local anti-discrimination laws to which they remain bound. Accordingly, employers should:
- Ensure all employees are afforded equal opportunities, regardless of any protected characteristics;
- Review DEI initiatives, policies, and practices to confirm they support inclusion;
- Ensure consistent application of employment policies and practices to all employees; and
- Continue to comply with all applicable federal, state, and local anti-discrimination laws.
For recommendations to promote “lawful” DEI practices from 10 former DOL officials, see HERE; to review a framework to “increase diversity and remove barriers to equal employment opportunity” from 10 former EEOC officials, see HERE; and for best practices to implement lawful DEI initiatives from 16 state attorneys general, 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.