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Trump\u2019s executive order \u2014 titled \u201cEnding illegal discrimination and restoring merit-based opportunity\u201d \u2014 expands his <\/span><\/span><\/span><\/span><\/span><\/span>initial focus on federal diversity initiatives<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/a> to the private sector and more, signaling to the business community that DEI initiatives will be under close examination by the new administration.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n Attorneys and courts have been carefully considering the legality of DEI programs for several years, as such programs exploded in both size and scope following the racial reckoning of 2020. Generally speaking, DEI has not been found to run afoul of civil rights law, the focus of Trump\u2019s executive order. One lawyer told HR Dive in 2022 that diversity initiatives that <\/span><\/span><\/span><\/span><\/span><\/span>don\u2019t involve employment decisions<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/a>, such as encouraging a wide range of applicants to apply, don\u2019t create much potential for legal action, for example.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n But other practices may be more questionable. In a December letter from the U.S. Department of Labor\u2019s Office of Federal Contract Compliance Programs to conservative advocacy group America First Legal Foundation regarding Southwest Airlines\u2019 DEI practices, the OFCCP acknowledged its regulations did not permit \u201c<\/span><\/span><\/span><\/span><\/span><\/span>quotas, preferences, or set asides<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/a>,\u201d for example. The agency did not say it found the airline to be in violation of these policies.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n Whether and how the Trump administration may widen the interpretation of legality with respect to DEI practices remains to be seen. America First Legal has taken an aggressive approach to corporate DEI in the past years \u2014 and its founder Stephen Miller is reportedly <\/span><\/span><\/span><\/span><\/span><\/span>close to the administration<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/a> \u2014 perhaps forecasting an onslaught of investigative activity and legal action. Many AFL cases remain pending, while <\/span><\/span><\/span><\/span><\/span><\/span>at least one was dismissed<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/a> by a federal judge.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n Still, employers may want to <\/span><\/span><\/span><\/span><\/span><\/span>review their DEI approach with a lawyer<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/a> to consider all potential claims and ensure compliance with existing civil rights laws, attorneys have previously recommended.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n<\/p><\/div>\n