One of President Trump’s first actions in office was to issue executive orders:

banning hiring discrimination, which was deemed to include many then-extant DEI programs, and to terminate all DEI and environmental justice programs, for contractors or grantees of federal funds; and

requiring all Federal contractors and grant recipients to certify that they do not operate any programs promoting DEI that violate Federal anti-discrimination law.

Almost immediately a Federal judge issued a preliminary injunction preventing, in effect, enforcement of the key provisions of the Executive Orders.  DEI was under attack, but the risk of incurring treble damages and penalties for violation did not exist during the injunctive period.

Last Friday, the Fourth Circuit Court of Appeals struck down the injunction, thus making active and effective the provisions banning DEI programs and requiring certification that no DEI programs were in force.

The Federal Government  has a fraud initiative to assess damages and penalties against any recipient of Federal funds that violates federal civil right laws, which now bar an unclear range of DEI programs but surely prohibit racially based programs.  This suggests that holders of government contracts or grants need to audit their DEI practices.  But further, the Executive Orders ban such DEI programs generally, in the marketplace.  It is quite likely that the sheer existence of such programs will result in suit by the US Attorney General even in contracts not involving the government.

And as noted in my firm’s Alert on this subject there is lack of clarity as to what is in fact permissible in a hiring policy; see http://www.duanemorris.com and click Alerts.  It is likely now a good time to offer the self-serving suggestion that legal counsel may be helpful in navigating this dangerous area.