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

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 Executive Order # 14173
• Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government: Executive Order #14168

 

LATE BREAKING NEWS: National Association of Diversity Officers in Higher Education, et al., v. Donald J. Trump, in his official capacity as President of the United States, et al.

 

PLAINTIFFS ASSERT FEDERAL GOVERNMENT OPENLY NONCOMPLIANT AND DEFIANT OF THE COURT ORDER ENJOINING PROVISIONS OF THE THREE EO’S
 

On March 13, the plaintiffs in the above-mentioned case requested an emergency status conference with the Court, “ideally on March 14 or at the Court’s next possible availability”, regarding reports of widespread violations of the Court’s preliminary injunction order (ECF Nos. 45, 67).

 

The motion alleges that although they have repeatedly informed the defendants of various instances of noncompliance with the terms of the Order, and requested clarification from the defendants concerning their efforts to comply with the Order, “it has become clear the federal government remains noncompliant.”

 

Additionally, public reporting indicates that “federal employees are openly discussing their intention to ignore the Order.”
 

ALLEGED EVIDENCE OF NON-COMPLIANCE

The motion goes on to say that the federal government appears to be violating the preliminary injunction in this case. In an article published yesterday in Rolling Stone, which Plaintiffs submitted to the court, it was reported—based on reviewing documents and conducting interviews with sources within and outside the government—that the “Trump administration officials have explicitly told staff and outside groups that they view the court order as irrelevant and that the ‘DEI’-crackdown contract language will remain.”

 

The allegations include that, despite the injunction:

1. “Certain parts of the administration, including the U.S. State Department, continued attempting to force this provision [the Certification Provision] on contractors and grant recipients, threatening their funding if they failed to sign it.”
2. “The administration hasn’t bothered to inform various nonprofits and grant recipients they do not currently have to comply with the president’s orders.”
3. “Recipients believe that officials in the US Government “are just pretending it didn’t happen.”

 

One source told Rolling Stone that a U.S. official stated “they knew about the

court injunction and what it meant, but that the senior ranks of the Trump administration had explicitly instructed staff to enforce Trump’s executive orders, to ignore the court’s injunction, and to pressure partner organizations if need be.”

 

Other allegations include that, in a direct violation of the Court’s February 21 preliminary injunction order, hundreds, if not thousands, of contractors and grantees around the country have received notices that require them to certify that they do not pursue DEIA principles in some form or else have their grants and contracts terminated on grounds that they are related to diversity, equity, inclusion, accessibility, or environmental justice. 

 

This all comes only a few days after the court's March 10, 2025 order in which the judge clarified that the preliminary injunction applies to ALL federal executive branch agencies, departments, and commissions (other than the president), not just those that were specifically named in the complaint.
 

As a reminder, on March 3, 2025, the same court 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.

 

BRIDGE POV

Nobody is above the law - this includes all agencies of the Federal Government as well as the President of the United States.  While there was a temporary shift in focus away from DEI to other issues as laid out in Project 2025, we will continue to follow this late breaking news closely and report updates.

 

As things continue to unfold, it is important to take advantage of this time to reflect on the facts, get uncomfortably comfortable with patterns of chaos, realign against your business priorities and KNOW YOUR RIGHTS.

 

SOME IMPORTANT FACTS

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. Just because the EOs use the term “illegal DEI practices” does not mean DEI practices are illegal - of course as long as they comply with existing law.
5. The removal of resources and documents from the government website that communicate the protection of rights for individuals do not make the laws any less enforceable.
    

TAKE ADVANTAGE OF THIS TIME TO

1. Ensure collaboration led by DEI in partnership with leaders from legal, marketing and revenue to review your DEI strategy, understand the opportunities it presents and mitigate any risk. If you don’t have a skilled DEI expert, now is the time to find one, and empower them to equip your entire leadership.
2. Review your current brand values and make sure all stakeholders have a clear understanding of these values and how they drive your priorities and action. When there is clear alignment against values, decisions are clearer and everyone knows what to expect. Costco is case in point.
3. Communication is critical. Now is not the time to remain silent - be proactive and transparent in your communications both internally and externally.

EMBOLDENED GOP-LED STATES FILE LAWSUITS

OVERVIEW

• State Board Of Administration Of Florida, V. Target Corporation
• State Of Missouri Ex Rel. Andrew Bailey, Attorney General Of Missouri V. Starbucks

 

Both the Florida and Missouri State Attorneys General have sued Target and Starbucks, respectively, alleging that their DEI practices are unlawful.

 

LEGAL INTERPRETATION

The Florida suit against Target, alleges breach of fiduciary duties to shareholders for failing to appreciate and manage the risks associated with DEI efforts. It asserts that Target "betrayed both Target's core customer base of working families and its investors by making false and misleading statements about Target's Environmental, Social and Governance (ESG) and Diversity, Equity, and Inclusion (DEI) mandates.” The suit also accuses Chief Executive Brian Cornell of downplaying the intensity of customer boycotts following the May 2023 Pride Month campaign, prolonging the decline in Target's share price.

 

In addition to the lawsuit, Target's recent change to its DEI policies have created a series of boycotts. 

 

Target has not yet issued a public response to the lawsuit or the boycotts.

 

The Missouri suit against Starbucks alleges liability under both federal and state anti-discrimination laws stating that Starbucks "ties compensation to racial and sex-based quotes, discriminates on the basis of race and sex in training and advancement opportunities, and discriminates on the basis of race and sex with respect to its board membership." 

 

Much like the blaming of DEI for the devastating LA fires and other disasters, the suit accuses that “Missouri’s consumers are required to pay higher prices and wait longer for goods and services that could be provided for less had Starbucks employed the most qualified workers.”

 

Starbucks has strongly denied the allegations: “We disagree with the attorney general, and these allegations are inaccurate. Our programs and benefits are open to everyone and lawful,” Starbucks said in a statement. “Our hiring practices are inclusive, fair and competitive and designed to ensure the strongest candidate for every job every time.”

 

These suits provide alternative theories of liability relating to DEI efforts and subject companies to potential enforcement under various bodies of state (anti-discrimination) and federal (shareholder liability and anti-discrimination) laws. Business Law Professor Carliss Chatman was quoted as saying the standard to assert a shareholder liability claim is “very, very high;” as a result, these suits are often unsuccessful. And while previous attempted conservative shareholder lawsuits challenging DEI practices have not succeeded, companies should consult with legal counsel to assess any threats under business fiduciary/shareholder liability and state anti-discrimination laws.

 

BRIDGE POV

Companies that have formally backed away from their diversity programs represent a tiny minority of corporate America. Even the Heritage Foundation recently conceded that 486 out of the Fortune 500 still have inclusion statements or commitments on their websites. Our experience is that seasoned executives understand its positive impact on business. As Costco stated DEI has fostered “creativity and innovation in the merchandise and services that we offer” and led to greater customer satisfaction.

Meritocracy is defined as a social system, society, or organization in which people attain success or power because of their abilities, not because of wealth or social position. Critics of DEI have asserted this definition repeatedly as an attack against DEI stating that women and Black and brown people are hired based on race and gender rather than their qualifications, pejoratively labeling them DEI hires.

 

1. In the same way that all business practices evolve, there should be no stigma attached to evolving DEI practices. Despite the collision with politics, the evolution of DEI practices should be subject to the same rigor as other business practices - figure out what’s working and what isn’t, strengthen its attachment to business impact and mitigate risk.
2. 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.
3. You cannot please everyone so committing to your company values vs capitulating to the politics of the moment is essential in maintaining trust in your brand. These values guide your mission, goals, culture, decision-making, behaviors, and relationships, serving as a foundation for how your company operates and interacts with employees, customers, and the broader community. 

STEPHEN MILLER ATTEMPTS TO BRING HIS DRACONIAN PHILOSOPHY TO THE DEPARTMENT OF LABOR

OVERVIEW

• America First Legal Urges Department Of Labor To Investigate Federal Contractors’ Dei Programs

 

America First Legal (operated by Stephen Miller, former Trump senior advisor and current deputy chief of staff for policy) known for sympathizing with extreme white nationalist ideologies filed a formal request with the OFCCP (The Office of Federal Contract Compliance Programs) to investigate a number of companies and universities with federal contracts for allegedly operating DEI programs in violation of federal anti-discrimination law.

 

LEGAL INTERPRETATION

OFCCP is an agency within the Department of Labor charged with enforcement of the obligations of federal contractors to ensure non-discrimination and equal opportunity in their workplaces consistent with Title VII. OFCCP formerly oversaw enforcement of federal contractors’ affirmative action obligations under Executive Order 11246, which was revoked by Trump’s DEI EO. Under the Trump DEI EO, federal contractors are now required to certify that they do not operate any DEI programs that violate federal anti-discrimination laws. 

 

Although as referenced above, a Baltimore federal court enjoined enforcement of this certification requirement pending litigation, this injunction arguably does not prevent the OFCCP from performing routine investigations of companies under its jurisdiction (which includes most federal contractors) to determine if they are in compliance with their non-discrimination and equal opportunity obligations under Title VII.

 

If this investigation uncovers wrongdoing, i.e., unlawful conduct, on the part of a federal contractor, OFCCP could initiate debarment proceedings against the federal contractor and/or refer the matter to the EEOC or Department of Justice for further enforcement, including litigation or settlement, however, there is no specific reference of DEI practices as grounds to apply debarment.

 

BRIDGE POV

DEI Practices have always had to operate within the law and abide by federal anti-discrimination laws. As referenced above, ALL agencies are subject to the preliminary injunction against the EOs, including the OFCCP. 
 

Additionally, governed by the Federal Acquisition Regulation (FAR) rules, the purpose of debarment or suspension is to protect the federal government from fraud, waste and abuse from the companies with which it contracts for business. There is no current mention of DEI practices per se as a cause for debarment or suspension.

 

In fact, according to the US General Services Administration, the general causes of suspension and/or debarment are: "Commission of fraud, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal laws, receiving stolen property, an unfair trade practice; violation of antitrust statutes; willful, or a history of, failure to perform; violation of the Drug-Free Workplace Act; delinquent Federal taxes (more than $3,000); knowing failure to disclose violation of criminal law; any other cause that affects present responsibility."

 

1. Despite the magnitude of federal government contracting, less than 5% of private businesses in the U.S. contract with the federal government. As always, ensure that all programs and initiatives comply with existing law.
2. While the antagonism towards DEI will continue, the Supreme Court has consistently said that DEI efforts are not only permissible, but in its most recent case involving Harvard University, the Court called diversity a “commendable” goal
3. We cannot stop lawsuits from being filed, but understanding the intricacies and nuances of what governs practices is empowering and critical in responding to and challenging these allegations 

EDWARD BLUM FILES SUIT AGAINST NON-PROFIT ILLINOIS LAW THAT ENCOURAGES BOARD DIVERSITY

OVERVIEW

• AMERICAN ALLIANCE FOR EQUAL RIGHTS, Plaintiff, v. KWAME RAOUL, in his official capacity as Attorney General of the State of Illinois; JAMES BENNETT, in his official capacity as Director of the Illinois Department of Human Rights; and ALEXI GIANNOULIAS, in his official capacity as Secretary of State of the State of Illinois

 

The DOJ has intervened in support of a suit filed by the American Alliance for Equal Rights (a group operated by Edward Blum, who was  behind Students for Fair Admission and the overturning of Affirmative Action) to challenge an Illinois law that requires non-profit organizations to publicly disclose data about the demographic composition of their officers and board members. 

 

The law was enacted to promote diversity among the officers and boards of non-profit organizations. The lawsuit alleges that the law, among other things, violates the constitutional guarantee of equal protection by discriminating on the basis of race. 

 

LEGAL INTERPRETATION

The Supreme Court has not decided any case on the issue of corporate board diversity. 

 

However, the SEC had approved a board diversity rule adopted by NASDAQ in 2021 requiring that all companies listed on the exchange have at least one woman and one underrepresented minority or LGBTQ+ person on the board of directors. 

 

A suit was filed challenging this rule, and in December of 2024, the Fifth Circuit invalidated the SEC approval of the rule, but not on the basis that the rule constituted unlawful discrimination. Instead, the Court held that the SEC had exceeded its regulatory authority in approving the rule. 

 

The Illinois law would not be subject to similar arguments about the limits on its legislative authority. So any reviewing court would likely reach the substantive question of whether the Illinois law violates the prohibition on race discrimination. The Illinois law is different from the NASDAQ rule in important respects, the Illinois law is merely a reporting law. 

 

Whereas the NASDAQ rule arguably required the consideration of race and/or gender in the selection of Directors. The Illinois law, by contrast, does not require entities to select persons on the basis of their race or gender. Instead, it allows entities to select persons on whatever grounds they deem appropriate and only requires those entities to publicly report the results of those decisions. 

 

The mere fact that this law was enacted to encourage greater diversity does not thereby turn the law into an “illegal preference.” Moreover, numerous federal courts, including the Supreme Court, have endorsed diversity as a legitimate goal that may be pursued so long as that pursuit does not entail race-based decision-making.

 

BRIDGE POV

Illinois is the first state to mandate the reporting of nonprofit board makeup, requiring certain Illinois not-for-profit corporations to post aggregated demographic data about their directors and officers on their websites if a publicly available site exists.

 

Other states have implemented diversity mandates or policies for corporate boards, but not specifically for nonprofit organizations. For example, California has laws mandating the number of women, minority, and LGBTQ+ board members for corporations headquartered in the state, but these requirements do not apply to nonprofit organizations. Therefore, as of now, Illinois stands alone in requiring this level of disclosure for nonprofit boards.

 

1. At this time, there is nothing illegal about reporting on the makeup of boards or companies, even with the stated goal of encouraging diversity - it is not the same as requiring race-based decision making.
2. While this is a discreet case to a specific state and a specific company status, it is critical that all companies review their DEI practices to ensure they comply with current anti-discrimination laws and do not include numerical quotas and targets
3. The power of understanding all these cases gives companies insight into the motivation behind the rabid attack against DEI practices. It is important though to recognize as Cisco CEO Chuck Robbins said: "DEI is being discussed like it's a single-issue discussion, and you either believe it or you don't. And in reality, it's made up of 150 different things, and maybe seven of them got a little out of hand. I think those six or seven things are going to get solved and then the core reasons you have a (DEI strategy) are still there from a business perspective."

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!