Key Takeaways | Understanding the Trump Administration’s Executive Orders on DEI and Immigration

On January 20 and 22, 2025, President Donald Trump issued executive orders (EOs) rolling back diversity, equity, and inclusion (DEI) and accessibility initiatives and advancing his immigration agenda.

Members of McDermott’s Employment and Government Contracts Groups provided an explanation of these Trump administration EOs. They unpacked the implications of these orders on the future of DEI initiatives and immigration law compliance to help your organization navigate these changes effectively.

Top takeaways included:

1. The Rescission of EO 11246 and Other Diversity EOs
   1. The EO entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” rescinds EO 11246 and the obligation of federal contractors and subcontractors to create and maintain written affirmative action plans.
   2. However, federal contractors and subcontractors must still comply with their obligations under the Vietnam Era Veterans Readjustment Assistance Act and Section 503 of the Rehabilitation Act.
   3. The attorney general is tasked with scrutinizing private employers’ DEI practices and identifying which such companies should be subject to compliance investigations and/or lawsuits in an effort to end “illegal discrimination and preferences.” Accordingly, private employers can expect greater scrutiny of their DEI policies and practices.
   4. The EO does not prohibit legal DEI measures.
2. The Future of DEI
   1. Refocus efforts on fair process and inclusion over metrics and accountability for increased representation.
   2. Maintain neutral mentorship and advancement programs that are available to everyone and address why the representation of women and minorities decreases at the top of the organization.
   3. Deemphasize the term “diversity” and emphasize “equity” (as in equal opportunity) and “inclusion.” Instead of focusing on whether you have “enough” of a certain demographic, ask yourself whether you have the best talent.
   4. Set clear parameters for employee resource groups and apply those parameters consistently.
3. False Claims Act (FCA) Civil Claims
   1. Be aware that the compliance certification requirement to be imposed on government contractors and grantees under the “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” EO presents potential FCA risk.
   2. Look for guidance from federal agencies on how and when the new certification requirement will be implemented (e.g., through Federal Acquisition Regulation revisions or contract actions), and consult with counsel on how best to respond to any agency communications inquiring about DEI-related activities in the interim.
4. Navigating Title VII Protections for LGBTQ+ Workers
   1. Review and revise written policies to make explicit that an employee’s acknowledgment to comply with any anti-discrimination policies – including any policies captured in any required employee training – does not require the employee to adopt the policies as their own personal beliefs.
   2. Review and revise training materials to make explicit that participation does not require the employee to personally agree with anything stated during the program but requires employees to ensure their conduct does not violate any anti-discrimination law.
   3. Engage in and document a thorough interactive process before denying any religious accommodation request – similar to the Americans with Disabilities Act.
5. Immigration Enforcement for Employers
   1. Maintain a response plan for any potential raids, including designated points of contact from your human resources (HR) and legal teams.
   2. Train receptionists to immediately contact the point person in your HR and legal teams if a raid occurs.
   3. Conduct annual self-audits of I-9 forms and enroll in E-Verify to verify social security numbers and names.
   4. If using staffing agencies, require that they use E-Verify, certify compliance with applicable immigration regulations, allow you to conduct walkthroughs of their offices, and negotiate appropriate indemnity provisions in your agreements.