Recent Court Decisions and Attorney General Guidance on DEI Programs and Initiatives

Executive Orders (EO) were issued in the first few days of the Trump administration affecting diversity, equity, inclusion, and accessibility programs and initiatives. Among the EOs issued were EO 14151 “Ending Radical and Wasteful Government DEI Programs and Preferencing”, and EO 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” 

The federal government is targeting what it deems to be “illegal DEI” although there is minimal guidance on what the administration considers “illegal” DEI activities. Of note recently, are a couple cases decided regarding DEI and guidance memo from several Attorneys General on DEI initiatives and programs in the workplace. 

Federal Judge Weighs in on DEI Training

In February, a federal judge issued a decision in Diemert v. City of Seattle, holding that an employer’s DEI training did not create a hostile work environment for a white employee. In this particular case, Diemart, a white man, alleged that his employer, the City of Seattle, discriminated against him because of his race. He argued that the City’s DEI program created a hostile work environment by “infusing race into all City functions.” Diemert claimed that he faced severe racial harassment through the DEI training materials and messaging and by comments from his co-workers outside of training.  

In reviewing Diemert’s claims, the court held that DEI and anti-discrimination trainings are not unlawful, and exposure to material that discusses race does not by itself create an unlawful hostile-work environment. In order to be illegal, the DEI training must be sufficiently “severe or pervasive” to alter the working conditions such that it creates an abusive environment. Discomfort over the agenda and content facilitated in a DEI program does not constitute discrimination. 

In rendering its decision, the court also recognized the tension that can exist during DEI training between individuals who oppose and who are proponents of DEI. Diemert equated “acknowledgement of institutionalized racism and implicit bias” with personal attacks. The court confirmed, however, that DEI discussions generally do not impact terms of employment which is the legal threshold for a hostile work environment claim.                      

Federal Judge Issues Nationwide Injunction Blocking Key Provisions of DEI Executive Orders

A federal district court for the District of Maryland has issued a nationwide injunction temporarily halting a few provisions of EO 14151 and EO 14173. In its decision in National Association of Diversity Officers in Higher Education, et al v. Donald J. Trump, et al, the court held that the two Executive Orders likely violated the First and Fifth Amendments of the United States Constitution impacting the plaintiff’s freedom of speech and due process rights. The court held the executive orders were unconstitutional because they are vague, abridge freedom of speech in the form of viewpoint discrimination, and condition the award of federal funding on those with viewpoints consistent with the Trump administration’s ideology. The court also held that the enforcement threat under the executive orders violated the Constitution because they raised First Amendment concerns given they impermissibly forced the plaintiffs to “either restrict their legal activities and expression that are arguably related to DEI or forgo federal funding altogether.”