As we mentioned in a previous blog post, soon after taking office, President Trump issued numerous executive orders aimed at “terminat[ing] all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” currently in place in federal agencies. The orders also seek to eliminate “diversity, equity, and inclusion” (DEI) programs in the private sector.

Soon after the president issued the orders, several organizations joined in a federal lawsuit challenging their constitutionality. On February 21, 2025, a federal judge in Maryland sided with the DEI advocates and granted a preliminary injunction, effectively preventing enforcement of the orders, on the grounds that certain provisions are vague and infringe upon free speech.

In the decision, the judge considered three key provisions of the orders:

1. the “Termination Provision,” which directs all executive agencies to “terminate … equity-related grants or contracts;”
2. the “Certification Provision,” which directs all executive agencies to “include in every contract or grant award” a certification, enforceable through the False Claims Act, that the contractor and grantee “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws;” and
3. the “Enforcement Threat Provision,” which directs the Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” to “deter” such “programs or principles,” and to “identify … potential civil compliance investigations” to accomplish such “deter[rence].”

The judge found that these provisions are constitutionally vague because the orders do not define certain “operative terms,” such as “DEI” and “equity-related,” or the types of programs or policies to which the orders apply. Moreover, the judge decided that the “Certification” and “Enforcement Threat” provisions abridge the freedom of speech through content or viewpoint discrimination because the intent of the orders is to “deter principles” with which the president disagrees.

In evaluating whether to grant a preliminary injunction, the court considered the following factors: (1) whether the plaintiffs are likely to succeed on the merits; (2) whether they are likely to suffer irreparable harm absent relief; (3) whether the balance of equities favors them; and (4) whether an injunction is in the public interest. In this case, the judge decided that all four factors were satisfied, and extended the injunction to cover “similarly situated non-parties” such as “all contractors and grantees” subject to the challenged provisions.

What now? Well, the court’s decision certainly is at least a temporary reprieve from government oversight of potentially “illegal” DEI programs. We expect the administration to appeal the court’s ruling, though, so employers should take appropriate steps to protect their DEI-type initiatives from scrutiny to the extent possible. For example, it is wise at this point not to refer to equal employment opportunity policies as “DEI” or anything similar. Rather, employers should focus on the actual intent of such programs, which is to provide equal access to similarly situated employees.

Our DEI team is always available to help if you have questions or concerns.