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].

 

*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

OVERVIEW

Among the dozens of EOs President Donald Trump issued in his first few days in office were those targeting DEI and LGBTQ+ protections, specifically:

 

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

 

LEGAL INTERPRETATION

Federal Court Pauses Significant Portion of Trump’s Executive Orders

Ending Illegal Discrimination and Restoring Merit-Based Opportunity: Executive Order # 14173

 

On February 3, 2025, a coalition of plaintiffs featuring the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland (the Plaintiffs Coalition) brought a lawsuit in Maryland federal court challenging the constitutionality of Trump’s EOs.
 

On Friday, February 21, 2025, a Maryland federal judge granted a nationwide preliminary injunction blocking enforcement of three key provisions of the new administration’s executive orders, which directed: (1) all federal agencies to terminate "equity-related" grants or contracts; (2) federal agencies to require future grant award recipients and federal contractors to certify that they do not "operate any programs promoting DEI;" and (3) the Attorney General to take action to "deter" alleged “illegal DEI” against some of the nation’s largest companies and universities.

 

On March 3, 2025, a federal district court in Maryland denied the government’s request to permit the enjoined provisions of the EOs to go into effect pending its appeal of the injunction filed on February 24, 2025.  The government’s motion was denied for the same reasons that it granted the injunction in the first place due to constitutional deficiencies.

 

The judge reiterated that plaintiffs have shown a strong likelihood of success on the merits with respect to at least their claims that the EOs contain unconstitutionally vague language and explained that there are four factors relevant to the issuance of a stay pending appeal:

1. Whether the stay applicant has made a strong showing that he is likely to succeed on the merits
2. Whether the applicant will be irreparably injured absent a stay
3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding
4. Where the public interest lies

 

BRIDGE POV

Despite the intended chaos caused by the issuance of multiple executive orders, it is critical to remember some key facts when reviewing your DEI practices:

1. An EO is a directive for how the federal government must act under the law. In and of itself, it does not have the force of law; therefore, EOs can be overturned if they violate federal or constitutional law (as evidenced above).
2. The power the president holds over federal agencies is vastly different from the power he has over the private sector—which means the private sector should be cautious of capitulating to the politics of the moment and instead do what’s right for their business growth and innovation, both outcomes of a successful DEI practice.
3. The Civil Rights Act, and the legal protections it affords, remains unchanged and, therefore, essential for employers to continue to abide by these protections when evolving any part of their DEI practices.
4. Discrimination of LGBTQ+ employees remains prohibited under the Civil Rights Act, despite EO #14168’s assertion of identity erasure of this community.

 

Notwithstanding the above, we recognize the intentional effort to scare the private sector into abandoning their DEI initiatives is a reality companies are forced to weigh. These are complicated times, and often, each decision presents a potential action from both sides of this issue: those in favor of maintaining the practice and those looking to eradicate it. Our guidance is threefold:

1. Review your company values and be steadfast in allowing those to guide your commitments to the culture you build
2. Partner with your DEI and legal teams to mitigate risk
3. Understand the business opportunity and evolve your DEI practice to meet those objectives

 

ADDITIONAL RESOURCE FOR REVIEW: 
An executive order explainer: Why the courts will have the final say on Trump’s anti-DEI actions

SAN FRANCISCO AIDS FOUNDATION V. TRUMP

OVERVIEW

Multiple LGBTQ+ rights organizations, led by Lambda Legal Defense and Education Fund, have filed a lawsuit in San Francisco federal court challenging the same three EOs:

 

• Executive Order # 14151
• Executive Order # 14173
• Executive Order #14168

 

According to Lambda Legal these EOs seek to:

• “Erase transgender people from public life.”
• “Defund the organizations that provide them with life-saving services.”
• “Terminate equity-related grants essential to the health and lives of other underserved communities, including communities of color, and people living with HIV.”

 

LEGAL INTERPRETATION

The lawsuit alleges that the EOs are unlawful on many of the same grounds asserted in the lawsuit referenced above in Baltimore Federal Court against the DEI EO by a coalition of organizations led by the National Association of Diversity Officers in Higher Education. 

 

Specifically, the lawsuit argues the EOs violate the U.S. Constitution’s First Amendment by limiting the organizations’ free speech, the Fifth Amendment’s Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment, as well as the Administrative Procedures Act.  

 

An injunction is being sought in the San Francisco case, which could result in a similar temporary injunction that we have seen issued above. Additionally, in a separate but related case, a federal judge issued a preliminary injunction on Tuesday, March 4 blocking enforcement of the Trump administration’s EO#14187 which threatens federal funding for institutions that provide gender-affirming care for anyone under 19.

 

BRIDGE POV

These EOs represent an orchestrated effort to rollback inclusion, erasing hard-fought protections for transgender, nonbinary, and gender-expansive people. That said, discrimination against LGBTQ+ employees remains prohibited under the Civil Rights Act. This case could have significant implications for organizations offering inclusive healthcare benefits. Companies should:

• Reaffirm their commitment to equitable healthcare policies
• Prepare for possible legal shifts that may impact employer-sponsored health benefits
• Lean into the robust resources that GLAAD is providing to ensure accuracy in the media and tips for allies.

ANDREA LUCAS APPOINTED ACTING COMMISSIONER OF EEOC

OVERVIEW

Andrea Lucas has been named the Acting Commissioner of the Equal Employment Opportunity Commission. The EEOC is the federal agency charged with enforcement of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, sex, national origin, or religion.
 

LEGAL INTERPRETATION

Lucas has publicly declared her intent to exercise the agency’s enforcement authority under Title VII “by rooting out” unlawful” DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex space; protecting workers from religious bias and harassment; and remedying other areas that have been historically under-enforced by the Agency." 

• In other words, while Title VII was enacted and has been historically enforced primarily on behalf of minorities and women, including gender minorities such as LGBTQ+ individuals, Lucas has expressed her intent to enforce Title VII primarily on behalf of white men and cis women. 

 

This enforcement strategy may result in charges of discrimination and/or harassment being filed on behalf of cis women or Christian employees, challenging workplace policies or practices that accommodate LGBTQ+ workers, such as gender-inclusive restrooms or the use of preferred names or pronouns for non-binary or transgender individuals.

 

BRIDGE POV

The most recent Supreme Court decision, Bostock v. Clayton County, held that Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sex, and that encompasses adverse employment actions on the basis of sexual orientation or gender identity. 

 

While the EEOC has recently pulled down a number of online resources on LGBTQ+ worker protections—among them several informational pages on Bostock— this does not mean the laws these documents discuss are any less enforceable. In fact, it is also always important to remember that the EEOC cannot reverse state and local anti-discrimination laws. While the EOs have not terminated existing protections for LGBTQ+ employees, the actions themselves and the dehumanizing language they employ are extremely harmful to employees in this protected group. We recommend employers:

1. Remain vigilant to ensure there is a zero tolerance workplace policy for harassment, including derogatory statements or insults, toward these employees
2. Be proactive and transparent in your communications to address questions and to reassure this population that the recent actions by the federal government do not override their protections under existing law or otherwise undermine the employer's commitment to support them
3. Remind employees to review your policy handbook which should always enforce protections as prescribed by the law

THE TRUE INTENTION OF TITLE VII AND THE ASSERTION OF REVERSE DISCRIMINATION

OVERVIEW

In the case of Diemert v. City of Seattle, Plaintiff Joshua Diemert, a white man, alleged that his employer, Defendant City of Seattle, discriminated against him because of his race, arguing that the City's Race and Social Justice Initiative ("RSJI")—the City's DEI program—created a hostile work environment.
 

The Seattle federal court’s dismissal of the case has been widely reported as endorsing an employer’s ability to engage in workplace diversity training and other DEI-related efforts without violating Title VII.
 

LEGAL INTERPRETATION

It’s important to note, however, this is just one of many cases that have been filed challenging workplace diversity training and other DEI-related efforts in the last several years. These cases have generated mixed results, with some courts similarly finding in favor of the employer, while other courts have indicated a willingness to rule in favor of these challenges.

 

Moreover, the legal landscape continues to shift as the Supreme Court continues to decide cases that have a bearing on the applicable legal standards in Title VII cases. 

• Last term the Supreme Court decided a case addressing the proper standard for establishing a claim of discrimination under Title VII, which made it easier to challenge employment actions even if they do not result in any “substantial harm” to an employee.
• This term, the Court will decide whether “reverse discrimination” claims filed under Title VII, i.e., those filed on behalf of white plaintiffs, men, or heterosexual/cisgender individuals, are subject to the same standard of proof as traditional discrimination claims filed on behalf of women or racial and sexual minorities, or if these claims should be subject to a higher standard. Currently, about half of federal courts apply a higher standard and about half apply the same standard.

 

Last week, the U.S. Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Services, an employment discrimination lawsuit that focused on a reverse discrimination claim under Title VII. Marlean Ames, a heterosexual female, asserts that she was not promoted due to her sexual orientation. These oral arguments suggest the Court is likely to require “reverse discrimination” claims to meet the same standard applied to traditional discrimination claims rather than apply any higher standard of proof to these cases.

 

BRIDGE POV

While the shifts and inconsistencies in rulings around discrimination and reverse discrimination cases are inevitable in this current environment, these cases underscore the importance of designing DEI programs as they were always intended - inclusive, equitable and legally sound. 

 

Additionally, the assertion that merit-based hiring is contrary to DEI practices is a false narrative. DEI practitioners have not advocated for hiring unqualified individuals—the role of DEI is to break the systemic structures that have historically excluded qualified talent and expand opportunities to those who have been arbitrarily denied access. Merit and DEI have never been mutually exclusive.

 

To safeguard against these complexities companies should:

1. As always, ensure that all programs and initiatives comply with existing law
2. Review your practices to ensure they do not include numerical quotas and targets
3. Clearly define a zero-tolerance policy for all forms of discrimination and ensure it is clearly communicated to your employees
4. Establish transparency in all practices including:
   1. talent acquisition, retention and management (promotions)
   2. evaluations and decision-making processes
   3. performance evaluation

 

Above all, partner with your DEI practitioners - skilled DEI leaders can help you review, mitigate risk and evolve your practices aligned with workplace inclusion and marketplace impact.

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, March 27th from 12-1p ET.

BRIDGE25: FORWARD, our annual 2 1/2 day retreat will convene close to 200 of the top DEI, Marketing & Business Leaders at the stunning Seabird Resort overlooking the beach in Oceanside, CA, May 4-6.

Our commitment is to deliver and experience that will be unapologetically indelible, determined and audacious!