Looking Back at 2025 Federal Actions on Anti-Discrimination in Employment
2025 Federal Actions Impacting Non Discrimination Law and Enforcement
Immediately after President Trump began his second term, he issued two Executive Orders (“EOs”) that radically changed how the federal government treats workplace inclusion. The first, EO 14151, required agencies to eliminate “all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”
The second, EO 14173, went further, asserting that “major corporations, financial institutions, the medical industry, large commercial airlines … and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.” EO 14173 revoked (among other things) EO 11246, which had for nearly 60 years (since September 1965) required federal contractors and subcontractors to take affirmative action to prevent employment discrimination based on race, color, religion, and national origin (later expanded to include sex). President Trump’s EO 14173 further required that, moving forward, every Federal contract or grant award include “a term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” EO 14173 further directed the U.S. Department of Justice (DOJ) to identify “the most egregious and discriminatory DEI practitioners”, and to develop strategies to “deter DEI programs or principles” that could be framed as unlawful preferences.
To that end, in July 2025, the DOJ issued guidance which identified best practices “to help entities comply with federal antidiscrimination laws and avoid legal pitfalls.” The following were among the “key points” highlighted by the guidance:
“Compelling employees to share intimate spaces with the opposite sex … would typically be unlawful.”
“Facially neutral criteria (e.g., ‘cultural competence,’ ‘lived experience,’ geographic targeting) that function as proxies for protected characteristics violate federal law if designed or applied with the intention of advantaging or disadvantaging individuals based on protected characteristics.”
Regarding the first key point, the guidance states: “Federally funded institutions that allow males, including those self-identifying as ‘women,’ to access single-sex spaces designed for females—such as bathrooms, showers, locker rooms, or dormitories—undermine the privacy, safety, and equal opportunity of women and girls… These policies risk creating a hostile environment under Title VII [of the Civil Rights Act of 1964], particularly where they compromise women’s privacy safety, or professional standing.”
The second key point of the guidance states, among other things, that it would be unlawful for “a federally funded organization [to] implement recruitment strategies targeting specific geographic areas, institutions, or organizations chosen primarily because of their racial or ethnic composition rather than other legitimate factors.”
Although the DOJ’s guidance is geared toward Federal agencies and covered contractors, the reasoning laid out in the guidance reflects enforcement priorities and an evolving legal framework.
Indeed, in a similar fashion, in May 2025, the U.S. District Court for the Northern District of Texas (the “District Court”) found in Texas v. Equal Employment Opportunity Commission (EEOC) that certain aspects of the EEOC’s April 2024 Enforcement Guidance on Harassment in the Workplace (the “Enforcement Guidance” issued before President Trump’s second term) was inconsistent with Title VII and the court vacated those portions of the Enforcement Guidance. Specifically, the District Court vacated the Enforcement Guidance’s listing of the following types of conduct as constituting sex-based harassment (as well as some specific hypothetical examples of such conduct):
Epithets regarding sexual orientation or gender identity;
Physical assault due to sexual orientation or gender identity;
Outing (disclosure of an individual’s sexual orientation or gender identity without permission);
Harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex;
Repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or
The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
Given the appointment of Andrea Lucas as Chair of the EEOC by President Trump, and her and President Trump’s views on these issues, it is not surprising that the EEOC has not appealed the District Court’s decision. In point of fact, the EEOC submitted a request to the White House in December 2025 that it rescind the April 2024 Enforcement Guidance entirely.
Another notable action by President Trump was the issuance of EO 14173, which seeks “to eliminate the use of disparate-impact liability in all contexts to the maximum-degree possible.” As a reminder, under Title VII and some other anti-discrimination laws, employers can be held liable for facially neutral policies or practices that disproportionately harm employees of a protected class, unless the employer can show that they have a business necessity for the discriminating policy or practice. However, as result of this Executive Order, the EEOC has reportedly stopped investigating complaints based on disparate-impact theories of liability.
Impact of 2025 Federal Actions: Ceased Enforcement of Disparate Impact Discrimination But Continued Application of Title VII
Disparate-impact liability was first established in federal anti-discrimination employment law by the U.S. Supreme Court in its 1971 decision of Griggs v. Duke Power Co, 401 U.S. 424, a case involving Title VII. Since then, Congress has codified disparate-impact liability into Title VII, and courts have recognized that disparate impact theories of liability apply to the Americans with Disabilities Act and the Age Discrimination in Employment Act as well.
Executive Orders, regulations, or statements from the executive branch do not automatically reverse laws or judicial interpretations of the law. While the EEOC can decide, as it has, that it will not prosecute cases of disparate-impact discrimination itself, individuals will still have the right to file lawsuits, under relevant discrimination statutes, asserting such discrimination. Thus, employers should continue to ensure that facially neutral policies and practices do not disproportionately harm protected groups, unless there is a business necessity for the policy or practice.
Employer Takeaways:
The federal actions in 2025 described above are applicable to federal contractors and subcontractors, and do not directly affect the established law applicable to other employers.
Federal contractors and subcontractors should seek the guidance of federal procurement counsel for advice on compliance requirements of 2025 Executive Orders and DOJ guidance.
Bear in mind that many states and local jurisdictions have state and local laws which, to varying degrees, protect the same type of conduct discussed in this article.
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