ABOUT PROJECT FORWARD

Led by BRIDGE, Project FORWARD is a cross-industry initiative, designed to chart our collective path forward and meet the current moment head-on. In partnership with top experts in academia, law and our board members, we are dedicated to equipping, educating, and empowering leaders in diversity, equity and inclusion (DEI), marketing, and business to continue to drive inclusive innovation and sustainable growth.

 

Every Friday, Project FORWARD provides critical updates on executive orders (EO) and legislative developments, featuring legal interpretations from Stacy Hawkins, Esq., Diversity & Employment Practices Consultant and Rutgers Professor of Law, and Jessica Golden Cortes, Partner, Labor + Employment Group, Davis+Gilbert LLP. We will also include the BRIDGE POV and tangible actions to consider.*

 

We encourage our community to remain informed and proactive. If you have questions or insights you’d like to share, please email [email protected].

 

FOR PAST ISSUES OF PROJECT FORWARD WEEKLY GUIDANCE PLEASE VISIT HERE.

 

*These Project FORWARD updates should not be construed as legal advice or counsel. They are for educational and instructive purposes only, to aid our understanding about how best to actively continue our mission in response to this moment. 

UPDATE ON PREVIOUSLY ISSUED EXECUTIVE ORDERS

For continued reference these are the EOs targeting DEI and LGBTQ+ protections that have been issued:

• Ending Radical and Wasteful Government DEI Programs and Preferencing: Executive Order # 14151
• Ending Illegal Discrimination and Restoring Merit-Based Opportunity: Executive Order # 14173
• Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government: Executive Order #14168
   

We will continue to monitor activities that relate to these EOs either directly or indirectly.

BERKSHIRE HATHAWAY, BRISTOL MYERS SQUIBB SHAREHOLDERS VOTE UNANIMOUSLY AGAINST ANTI-DEI PROPOSALS AND KROGER OUSTS PROPOSAL PRIOR TO VOTE

• DEI Emerges Triumphant

 

OVERVIEW
Amid growing political backlash, shareholders at some of America’s most influential companies are making their stance clear: inclusion is not up for debate.

 

Despite a coordinated campaign led by the National Center for Public Policy Research to dismantle DEI programs, investors have consistently and resoundingly rejected these proposals—sending a strong message that DEI remains a business and moral imperative.

BERKSHIRE HATHAWAY

At Berkshire Hathaway’s 2025 Annual Meeting on May 3, shareholders decisively rejected all seven shareholder proposals related to diversity, equity, and inclusion (DEI), artificial intelligence (AI), and environmental reporting. These proposals included calls for reports on risks from race-based initiatives, the impact of business practices on employees across various demographics, and the creation of oversight committees for diversity and AI.

 

The board, led by Warren Buffett, opposed these measures, emphasizing the company’s decentralized management style. Buffett, who controls about 30% of Berkshire’s voting power, and the board stated that such proposals were unnecessary and conflicted with Berkshire’s approach of allowing subsidiaries to manage their own employment policies, adhering to a straightforward philosophy of “follow the law and do the right thing.”

 

BRISTOL MYERS SQUIBB

At its Annual Meeting of Shareholders on May 6, 2025, Bristol Myers Squibb (BMS) faced two anti-DEI proposals by the NCPPR. In its proxy statement, BMS urged shareholders to reject both proposals asserting its position on DEI: “We value inclusion and prioritize building an inclusive workforce in compliance with applicable non-discrimination laws, as do our shareholders,” it wrote. “We believe our inclusion philosophy leads to greater financial and patient outcomes and generates shareholder value, because it helps drive our strategic goal to reach more patients with our transformative medicines.”

Shareholders overwhelmingly voted to reject both proposals, 98-1 percent (1 percent abstained), and 97-2 percent (1 percent abstained).

 

“We are taking bold, intentional action to do our part to ensure that healthcare works for everyone. I am proud of our progress in building a truly inclusive culture. Our diverse workforce reflects our communities and our global patient population and is enabling our company to deliver innovation and more equitable care.”

 

THE KROGER CO.

In early 2025, The Kroger Co. sought to exclude a shareholder proposal from its proxy materials that requested the company to issue a public report detailing the potential risks associated with omitting “viewpoint” and “ideology” from its written equal employment opportunity (EEO) policy. Kroger argued that the proposal pertained to the company’s ordinary business operations and thus qualified for exclusion under SEC Rule 14a-8(i)(7). On May 7, 2025, the SEC concurred with Kroger’s assessment, allowing the company to omit the proposal from its 2025 proxy materials. 

 

Kroger has consistently emphasized its commitment to diversity, equity, and inclusion (DEI). 

 

“Kroger’s internal Diversity, Equity & Inclusion (DEI) Advisory Council includes cross-functional leaders who are committed to advancing progress. The Council works closely with senior officers and business leaders to identify opportunities and specific actions for improvement.”  

 

BRIDGE POV 

The message from shareholders is clear: inclusion is not a political liability—it’s a business priority. When DEI is integrated into long-term strategy, performance metrics, and board-level governance, it earns the confidence of stakeholders—even in turbulent times.

 

This isn’t just a defense of DEI. It’s a confirmation that companies can lead with clarity, withstand ideological pressure, and win the support of the market.

 

1. Tie DEI to Long-Term Value Creation: Position DEI as core to sustainable growth—driving innovation, talent retention, consumer relevance, and risk mitigation. Use investor communications to show how inclusion fuels resilience and performance.
2. Equip the Board with a Confident Narrative: Boards must speak to DEI as a matter of business oversight, not social stance. Arm directors with clear data, scenarios, and language to frame DEI as part of fiduciary duty—not ideological debate.
3. Integrate DEI into Risk Governance: Attacks on DEI aren’t just PR issues—they’re enterprise risks. Build DEI into your ERM framework to make clear: dismantling inclusion exposes the company to reputational, legal, and operational harm.

SUMMARY JUDGMENT FOR PERKINS COIE IN LAWSUIT AGAINST TRUMP

• Addressing Risks from Perkins Coie LLP: Executive Order #14230
• Perkins Coie’s response to the unlawful Executive Order targeting the firm  
• Perkins Coie v. Department of Justice

 

OVERVIEW

As detailed in earlier issues of Project FORWARD (6 and 8), the administration issued an Executive Order targeting law firms seeking to settle scores with those representing political opponents—most notably Perkins Coie. The order revoked the firm’s federal security clearances and framed the action as part of an effort to “end discrimination under ‘diversity, equity, and inclusion policies and ensure that Federal benefits support the laws and policies of the United States, including those laws and policies promoting our national security and respecting the democratic process.”

 

In response, Perkins Coie filed suit in the U.S. District Court for the District of Columbia, challenging the Executive Order as an abuse of executive power. The legal community responded in force: by April hundreds of law firms, legal scholars, former judges, and advocacy organizations filed amicus briefs in support of the firm.

 

On May 2, the court issued a final ruling—permanently blocking the Executive Order and delivering a decisive rebuke to the administration’s attempt to use government authority to intimidate and punish its perceived opponents.

 

LEGAL INTERPRETATION

In its May 2 ruling, the District Court for the District of Columbia found that the Trump Administration’s revocation of Perkins Coie’s security clearances—based solely on the firm’s public support for diversity, equity, and inclusion—constituted a clear violation of the First Amendment.

 

The court wrote that “public statements supporting diversity, standing alone, . . . provide not even a scintilla of evidence of impropriety, let alone illegality.” It further affirmed that Perkins Coie’s stated intent to consider attorneys from diverse backgrounds did not amount to illegal quotas or discriminatory practices.

 

Notably, the court cited the Administration’s own concession during the injunction hearing: "Diversity, in and of itself, isn’t the problem. The problem is stereotyping based on [race or gender].” With no evidence of such conduct by the firm, the court concluded that the Executive Order was not grounded in law, but rather in viewpoint discrimination—an attempt to punish the firm for its values.

 

This decision reinforces the constitutionally protected right of private employers to express support for DEI principles and confirms that government retaliation on those grounds is both unlawful and unconstitutional. It provides a strong legal precedent for companies defending inclusive workplace practices against political interference.

 

BRIDGE POV 

​​This is not just a legal ruling. It’s a line in the sand.

 

The court’s decision in Perkins Coie v. Trump makes one thing unequivocally clear: supporting diversity, equity, and inclusion is not illegal, and it is not up for political reinterpretation. It is protected speech under the First Amendment. When a sitting administration uses the weight of federal power to punish a private employer for expressing inclusive values, it crosses a line—not just legally, but morally.

 

CEOs must understand the stakes. This ruling reinforces that companies have the constitutional right to express support for diversity, equity, and inclusion without fear of government retaliation. It affirms that setting aspirational goals, acknowledging systemic barriers, or investing in inclusive practices are not only lawful—they are expressions of a company’s values and business strategy. These actions do not constitute illegal discrimination, and courts are rejecting attempts to frame them as such.

 

What the Trump Administration attempted through executive action was not grounded in law—it was an effort to chill free expression and weaponize government authority to intimidate. The court rejected that abuse of power. And in doing so, it set a precedent that protects companies from being coerced into silence.

 

We cannot normalize political coercion. We cannot mistake government overreach for legal risk. And we cannot lead as though the First Amendment doesn’t apply inside the boardroom.

 

What happened to Perkins Coie was not an anomaly—it was a test. And the court’s ruling is a call to every leader: You do not have to shrink your values to protect your business. You can stand your ground—and you have the Constitution on your side.

 

1. Assert Your First Amendment Protections: Ensure your DEI commitments are framed as values-based expressions of corporate purpose and business strategy—not as hiring mandates. Make clear that public support for inclusion is constitutionally protected and cannot be coerced or chilled by government action.
2. Build a Coalition Response Strategy: In the face of targeted political action, don’t stand alone. Join or build legal and business coalitions—much like the amicus support seen in this case—to demonstrate that inclusive values are not fringe positions, but shared commitments across industries.
3. Go on the Offense: Reaffirm Inclusion in Corporate Policy: Don’t just defend your DEI strategy—reaffirm it. Update your public policy statements, ESG reports, and investor communications to explicitly state that inclusion is a core business principle. Use this ruling as a legal foundation to reinforce—not retreat from—your values in writing and in action.

THE SUPREME COURT ALLOWED THE TRUMP BAN ON TRANSGENDER SERVICE MEMBERS IN THE MILITARY TO GO INTO EFFECT

• Prioritizing Military Excellence and Readiness: Executive Order #14183 
• United States, Et Al. V. Shilling, Commander, Et Al. 
• Talbott v USA

 

OVERVIEW

On January 27, 2025, President Trump issued an Executive Order titled “Prioritizing Military Excellence and Readiness,” directing the Department of Defense to prohibit military service by transgender individuals. One month later, on February 26, the Secretary of Defense issued a formal directive enacting the ban—effectively barring transgender people from enlisting or continuing their service.

 

In response, GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR) filed suit on January 28 on behalf of a group of transgender service members representing every branch of the armed forces. These plaintiffs include individuals currently serving with distinction, as well as others seeking to enlist and serve their country.

 

On March 18, the U.S. District Court for the Western District of Washington issued a nationwide preliminary injunction, finding the plaintiffs were likely to succeed on the merits of their constitutional claims. The Ninth Circuit upheld that injunction on March 26, denying the administration’s motion to dissolve it.

 

But on May 6, the U.S. Supreme Court intervened. In a 6–3 decision—over the dissent of all three liberal justices—the Court granted an emergency stay, allowing the ban to take immediate effect while litigation challenging the policy’s constitutionality continues. As a result, qualified transgender Americans are once again barred from military service.

LEGAL INTERPRETATION

The Supreme Court’s May 6 decision to stay the injunction was issued without a written opinion and was unsigned—though all three liberal justices dissented. As a result, the administration’s ban on transgender military service members remains in effect while the case proceeds through the Ninth Circuit, unless the Supreme Court later agrees to hear the case on the merits.

 

Importantly, the issuance of a stay does not signal how the Court—or any lower court—will ultimately rule on the underlying constitutional claims. A stay reflects only a procedural judgment about whether the policy can be enforced while litigation continues.

 

Notably, this is not the first legal battle over such a ban. GLAD Law and the NCLR successfully challenged a similar policy issued during Trump’s first term. In that case, multiple federal courts found the ban unconstitutional, and the policy was ultimately reversed by President Biden in 2021. That legal precedent remains part of the foundation for this renewed challenge.

 

BRIDGE POV 

This ruling is a setback—not just for transgender Americans, but for every leader who believes in integrity, merit, and equal service under law.

 

The Supreme Court’s decision to allow the ban to go into effect is not a ruling on the merits, rather it sends a message that qualified, capable Americans can be denied the opportunity to serve their country—not because they lack ability, but because of who they are. That should trouble every executive who claims to value leadership based on performance, not prejudice.

 

As the lead plaintiff, Second Lieutenant Nicolas Talbott, put it:

“When you put on the uniform, differences fall away and what matters is your ability to do the job. Every individual must meet the same objective and rigorous qualifications in order to serve. It has been my dream and my goal to serve my country for as long as I can remember. My being transgender has no bearing on my dedication to the mission, my commitment to my unit, or my ability to perform my duties in accordance with the high standards expected of me and every service member.”

 

This moment calls for resolve with the fundamental belief that identity should never be a barrier to service or leadership. When exclusion is sanctioned at the highest levels of government, silence from business leaders becomes complicity. 

 

1. Make Inclusion Explicit in Leadership Standards: Affirm that your definition of leadership is rooted in performance, not identity. Update internal leadership frameworks, job descriptions, and employee handbooks to clearly state that gender identity—including transgender status—has no bearing on one’s ability to lead, contribute, or serve.
2. Speak When It Matters—Not Just When It’s Safe: Moments like this require principled leadership. Use your platform—internal communications, public statements, ERG forums—to reaffirm your company’s support for transgender employees and their right to contribute fully and visibly. Silence in the face of exclusion sends a message. So does clarity.
3. Back Policy with Practice: Review your healthcare coverage, recruitment pipelines, and promotion practices to ensure transgender employees are fully supported and equitably represented. Go beyond non-discrimination language—invest in the systems that make inclusion real, measurable, and defensible.

UPDATE ON EXECUTIVE ORDER REGARDING DISPARATE IMPACT LIABILITY

• Restoring Equality of Opportunity and Meritocracy: Executive Order #14281
• President Trump's Executive Order on Disparate Impact Analysis Is Legally Incorrect and Will Undermine Meritocracy and Equal Employment Opportunity

 

OVERVIEW

As detailed in recent issues of Project FORWARD (10 and 11) on April 23, 2025, Trump signed Executive Order 14281, titled “Restoring Equality of Opportunity and Meritocracy.” This order aims to eliminate the use of disparate impact liability in federal anti-discrimination enforcement to the maximum extent permitted by law.  

 

Disparate impact liability allows for claims of discrimination based on policies or practices that, while neutral on their face, disproportionately affect members of protected classes. The executive order contends that this legal doctrine undermines equal opportunity by creating a presumption of discrimination based solely on statistical disparities, thereby compelling employers and institutions to consider race or other protected characteristics to avoid liability.  

 

On May 14, 2025, the same coalition of former officials from the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Labor, who previously criticized EEOC Acting Chair Andrea Lucas’s guidance on diversity, equity, and inclusion (DEI), publicly opposed Trump’s Executive Order 14281. They emphasized that Title VII of the Civil Rights Act of 1964 explicitly prohibits employment practices that result in unjustified disparate impacts, regardless of intent, and that the U.S. Supreme Court has consistently upheld this principle.  

 

The former officials warned employers not to mistake the Executive Order for legal immunity. It does not override existing civil rights law, and both private litigators and state and local agencies are expected to continue pursuing legitimate disparate impact claims. Their message to employers was clear: continue monitoring workplace policies, assess disparate outcomes, and take corrective action where necessary to avoid liability and remain compliant with federal law.

 

LEGAL INTERPRETATION

The open letter from former EEOC and Department of Labor officials makes clear that disparate impact liability is embedded in the statutory text of Title VII of the Civil Rights Act—and cannot be undone by Executive Order. The ability to challenge employment practices that result in unjustified disparate outcomes is a matter of federal law, not administrative preference.

 

While Executive Order 14281 may shift the enforcement priorities of federal agencies like the EEOC, it has no authority to eliminate or redefine the legal basis for disparate impact claims under Title VII.

 

The signatories sharply criticized the Order as being “based on faulty practical and legal assumptions about disparate impact liability,” and warned that it may backfire—“prompting a redoubling of efforts on the part of the private bar, as well as state and local governments, to bring legitimate disparate impact claims.”

 

BRIDGE POV 

The attempt to erase disparate impact liability through executive action is not just a legal overreach—it’s a distortion of civil rights law.

 

Title VII remains clear: policies that result in unjustified disparate outcomes are subject to scrutiny, regardless of intent. The Administration’s Executive Order may shift federal enforcement priorities, but it does not rewrite the law. And it certainly doesn’t shield employers from legal or reputational exposure.

 

For business leaders, the message from former EEOC and DOL officials is clear: do not misread this moment. Disparate impact remains a valid—and actively litigated—theory of liability. Abandoning internal review or compliance efforts based on false immunity is not only risky, it invites scrutiny from private litigators and state enforcement bodies alike.

 

This is a time for clarity, not retreat. The companies that will weather this political cycle with integrity are those that continue to lead with transparency, data, and accountability.

 

1. Reaffirm Compliance with Title VII—Including Disparate Impact: Ensure your legal and HR teams are not misled by federal rhetoric. Conduct a compliance review to confirm that all employment practices are regularly evaluated for adverse impact. This includes hiring, promotion, compensation, and reduction-in-force procedures.
2. Don’t Pause—Pressure Test Your Data: Now is not the time to ease up on internal audits. Double down on data analysis to proactively identify where disparities may exist and whether they can be justified by business necessity. This allows you to act early and with legal defensibility.
3. Communicate the Law Internally: Educate executive teams and business unit leaders: disparate impact remains enforceable. Consider issuing internal guidance clarifying that Executive Order 14281 does not override Title VII or the risk of litigation. Misinterpretation at the top is a liability waiting to happen.

COMMUNITY EVENTS

BRIDGE invites everyone to join for our monthly Community Calls which take place on the last Thursday of every month, gathering DEI marketing, and business leaders committed to driving systemic change within our organizations and the industry at large.

 

Our next call is Thursday, May 29th from 12-1p ET.