The Trump administration lost a key legal battle in its fight to end DEI practices across the federal government and private sector last week. The loss came on the heels of a new lawsuit filed by civil rights organizations over the executive orders. One legal expert told HR Brew that employers should see this as an opportunity to retake the narrative around DEI practices.
A busy week. Late on Friday, Feb. 21, a federal district judge in Maryland temporarily blocked the Trump administration’s executive orders on DEI, in a win for the city of Baltimore and some advocacy groups that had sued earlier in the month, the Washington Post reported.
Notably, the judge directed the administration to cease any enforcement of its DEI policies targeting private employers. The plaintiffs claimed that the anti-DEI orders violated their rights to free speech and due process.
“That is textbook viewpoint-based discrimination. The government’s threat of enforcement is not just targeted towards enforcement of federal law. Rather, the provision expressly targets, and threatens, the expression of views supportive of equity, diversity and inclusion,” Judge Adam Abelson wrote in his ruling.
On Feb. 19, the NAACP Legal Defense Fund (LDF) and Lamba Legal sued the Trump administration over its anti-DEI and anti-trans executive orders. The lawsuit claimed that the orders would limit nonprofit organizations from adequately providing social and health services, like equal employment opportunities and civil rights protections, and violate their constitutional rights to free speech and due process.
“If the government’s going to prohibit something, and the real consequences if you violate the law, at a minimum, a normal person has to know what’s prohibited and what’s not,” Jin Hee Lee, director of strategic initiatives at the LDF, told HR Brew. “It gives the federal government an incredible amount of discretion to essentially make up their minds on their own right that they don’t like something…These executive orders have to give fair notice as to what is being prohibited. And there has to be standards or criteria that people understand.”
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Zoom out. As the legal war wages on, several companies—including Target, Pepsi, Citi, and some government contractors—are already complying with the orders, drastically reducing their DEI language or programs without putting up much of a fight.
Lee said companies should instead reclaim the arguments for DEI that anti-civil rights activists have turned upside down by ignoring and denying the roots of inequality in the US.
“We are incredibly disappointed that so many corporations have been pressured into this regression, especially because so many of them were so vocal in 2020 about their commitment to racial justice,” Lee said, noting that these companies have now done a 180 on their policies because of pressure from “extremist activists.”
She said, for example, that companies should acknowledge the reality of ongoing inequalities in the workplace. “In order to go against that false narrative, it’s really helpful for people to think about, ‘why does this inequality exist,’ and to document that, and figure out ‘why is it that certain people…are not able to access resources and opportunities like everyone else,’” Lee said. “Another important thing to do is to not couch this in terms of a zero-sum game that, as if one person benefits and someone else doesn’t, which is not really how the world works.”