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

 

As expected, things change by the minute with EOs, lawsuits and rulings. Last week we issued late breaking news around the National Association of Diversity Officers in Higher Education, et al., v. Trump where the plaintiffs asserted the federal government was openly non-compliant and defiant of the court order enjoining provisions of the three EOs. The following day brought a new ruling from the 4th US Circuit Court of Appeals. 

 

LEGAL INTERPRETATION

On March 15, in response to an emergency stay of the injunction filed by the government, the 4th US Circuit Court of Appeals panel reinstated portions of Trump’s executive orders targeting diversity, equity and inclusion (DEI) programs and suspended the injunction issued by the lower court.
 

While the decision from the three-judge panel signals that the administration is likely to succeed in its February appeal, the two judges appointed by former Democratic president Obama made clear a challenge to the orders could still prevail in the future. 
 

Notably, they all appeared to accept the government’s characterization of the EOs as narrow in scope. U.S. Circuit Judge Pamela Harris, an Obama appointee, explained why the challenged provisions do not, on their face, violate the Constitution: "As the government explains, the challenged Executive Orders, on their face, are of distinctly limited scope. The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity, and inclusion, and they should not be so understood. Instead, the so-called 'Certification' and 'Enforcement Threat' provisions apply only to conduct that violates existing federal anti-discrimination law."
 

Additionally, the judges also appeared to be in agreement that there are still constitutional concerns that need to be addressed, and made the point that the constitutionality of the EOs themselves is separate from the constitutionality of how the EOs are carried out.
 

“My vote to grant the stay comes with a caveat,” added Judge Harris. “What the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns.” 
 

U.S. Circuit Judge Albert Diaz, another Obama appointee, said he agreed and raised concerns about the recent attacks on DEI, saying "Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. For when this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?"
 

The third judge on the panel, U.S. Circuit Judge Allison Jones Rushing, a Trump appointee, chastised her colleague for praising DEI.

 

BRIDGE POV

As the courts review the constitutionality of the EOs, issue rulings and consider the 100s of lawsuits being filed across the gamut, the private sector knows the work needs to continue while navigating this chaotic environment. Key to this is that DEI practices that are lawful under Title VII remain lawful under the EOs. In other words, what was legal prior to the inauguration is still legal.

 

1. Continue to review your DEI Practices to ensure that they are compliant with Title VII, for example: internships are open to all applicants, mentorships open to all employees, allies are invited to attend ERGs etc.
2. There is a concern, as evidenced by the administration’s alleged non-compliance and defiance of previously issued court orders, that this pattern of bullying and alleged disregard for the law will likely continue
3. The EOs are narrow in scope without a clear definition of DEI practices - despite the attempt to reduce DEI to a single issue of race and gender, the true nature of DEI is a framework of practices that extend across the organization - think about your organizational practices as laying the foundation for marketplace impact.

 

ADDITIONAL RESOURCES

Appeals court reinstates portions of Trump’s DEI orders

EEOC ISSUES LETTERS AND DEI “GUIDANCE”

OVERVIEW

• What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission 
• What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission 
• Letter to Acting Chair Lucas March 18 2025 

 

As a reminder Andrea Lucas was 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.

 

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. 

 

LEGAL INTERPRETATION

On March 17, Lucas issued letters to 20 law firms requesting detailed information of their diversity, equity and inclusion programs asserting concerns of potential Title VII violations. 

 

On March 18, in response, seven former EEOC Chairs and Commissioners issued a two-page letter to Acting Chair Lucas expressing “grave concerns” that this order exceeds the agency’s enforcement duties under law.

 

In the letter, the former officials state that:

1. The EEOC does not have authority under Title VII of the Civil Rights Act (Title VII) to request information from employers without a Commissioner charge that has been signed under oath.
2. Even in the case that a Commissioner charge had been filed, Title VII law would require these charges be kept confidential so the EEOC could pursue "cooperative compliance" and be prevented from "intimidating employers through public pressure before any finding of discrimination."
3. And, “more broadly, no single member of the Commission, including the (acting) Chair, has the authority to unilaterally change the EEOC’s longstanding position on employers’ diversity, equity, and inclusion efforts.”

 

Furthermore, the signatories remind Lucas that “Nor does Title VII require these firms to respond to your letter or permit EEOC to impose penalties on firms for declining to respond.”

 

Separately, on March 19, the U.S. Equal Employment Opportunity Commission (EEOC) and The Department of Justice (DOJ), jointly issued “technical assistance documents” focused on “educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.”

 

The first document, issued jointly by the DOJ and EEOC, entitled "What To Do If You Experience Discrimination Related to DEI at Work" encourages individuals to file charges of discrimination with the EEOC if they believe they have experienced DEI-related discrimination. The second document, issued solely by the EEOC and titled “What You Should Know About DEI-Related Discrimination at Work” is an FAQ-style document that generally explains how Title VII of the Civil Rights Act of 1964 (Title VII) applies to DEI-related discrimination according to the EEOC.

 

Unsurprisingly, these documents align closely with the EOs on diversity, equity and inclusion as well as the public comments made by the acting Chair of the EEOC’s stated intent.

 

Despite the outward hostility against DEI practices, both documents acknowledge:

1. The term DEI is a broad term and not defined in Title VII 
2. Many forms of DEI remain lawful

 

These documents, while not enforceable by law, begin to reveal how the administration is interpreting DEI, specifically as it relates to workplace practices outlining potential DEI-related discrimination claims as follows:

• Exclusion from mentorship, fellowship, or internship programs based on protected traits.
• Limiting who can join employee resource or affinity groups based on protected traits.
• Segregated presentation of trainings, even where the offerings or benefits provided to all participant groups are the same.
• DEI trainings that create a hostile work environment based on content, design, or execution of the training.
• Retaliating against workers who oppose DEI programs or trainings.
• Selection for interviews, including placement or exclusion from a candidate slate or pool based on protected traits (e.g., the “Rooney Rule”)
   

"DEI policies, programs, or practices MAY be unlawful IF they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee's race, sex, or another protected characteristic."

The documents also detail how to file a charge of discrimination with the EEOC, who may file a charge, and the entities that charges may be potentially filed against.

 

BRIDGE POV

These technical assistance documents are the first glimpse into the narrow view of how DEI is being defined by the administration, with a sole focus on workplace practices. They also provide ways that both the private sector and federal employees can mitigate risk by evolving their practices. Notwithstanding. that what has been outlined would likely have already been considered by skilled DEI practitioners, it allows for nuances to be clarified and adjusted.
 

It is also critical to understand that, like EOs, these documents do NOT create new legal standards and cannot be enforced as rule of law. 
 

1. As stated many times, review your business practices to ensure they comply with federal law - take into account nuances to mitigate risk
2. Comprehensive diversity, equity and inclusion practices extend beyond a workplace only focus and can create significant marketplace impact. In fact, inclusion as a business practice presents a proven, tangible and transformational opportunity for companies to accelerate their growth and future proof their business.
   • Inclusive organizational practices lay the foundation for building inclusive brands and companies
   • Placing inclusion at the center of how you develop and adapt products allows you to serve growth communities
   • Inclusion influences the way your brand shows up in the market -  from customer experience to media and creative
3. When evaluating your training programs you need to remain mindful of complying with individual state (and city) training requirements around the country, including in locations such as New York, New York City, Illinois and California. These locations mandate annual trainings on topics such as sexual harassment, discrimination and bystander intervention.

 

ADDITIONAL RESOURCES

The country’s biggest law firms are largely sticking with DEI, despite the president’s attacks

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!