Listen to this post

As discussed in our blog here, President Trump’s series of executive orders aimed at eradicating “illegal” diversity, equity and inclusion policies and programs across the federal government and in the private sector did not define the term “illegal discrimination.” On March 19, the Equal Employment Opportunity Commission and the Department of Justice released guidance addressing this and outlining how DEI practices may be unlawful under Title VII of the Civil Rights Act of 1964 if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.

Together, the EEOC and DOJ issued a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work,” providing examples of “DEI-related discrimination” under Title VII and directing employees who “suspect [they] have experienced DEI-related discrimination” to “contact the EEOC promptly.” 

The EEOC simultaneously released more detailed guidance entitled “What You Should Know About DEI-Related Discrimination at Work,” which includes eleven questions and answers addressing the process for asserting a discrimination claim and the scope of protections under Title VII as they relate to DEI practices.

Continue Reading EEOC and DOJ Issue Joint Guidance on DEI-Related Discrimination
Listen to this post

On March 14, 2025, the Court of Appeals for the Fourth Circuit lifted the preliminary injunction blocking key provisions of President Trump’s executive orders related to diversity, equity, and inclusion (our summary of the DEI EOs is here). This decision temporarily reinstates the enforcement of Executive Orders 14151 and 14173, pending further appellate review.

Background

As discussed here, on February 21, a Maryland district court issued a nationwide preliminary injunction, citing concerns that the EOs were likely to violate the First and Fifth Amendments by chilling free speech and due process. The preliminary injunction had blocked the federal government from forcing contractors and grantees to certify that they aren’t promoting “illegal DEI.”

The government defendants immediately filed a notice of appeal with the Fourth Circuit, while also seeking a stay of the district court’s preliminary injunction. On March 3, the district court denied their request for a stay with Judge Abelson concluding that the potential harm of the orders outweighed the administration’s policy priorities.

The Fourth Circuit’s Panel Decision

The three-judge appellate panel unanimously stayed the injunction on March 14, with all three judges writing separate concurrences. There is an undercurrent in each opinion that the injunction came too early (for it’s unclear still what types of programs the government will try to eliminate) to determine if the government’s actions will implicate the First and Fifth Amendment concerns raised by plaintiffs. Also, the court takes the government defendant’s representations that the EOs are distinctly limited in scope and apply only to conduct that violates existing federal anti-discrimination law as true.

Continue Reading Fourth Circuit Allows Trump Administration to Enforce DEI EOs (For Now)
Listen to this post

Germany, the UK, and the US are all experiencing movement towards more restrictive immigration policies, driven by rising migrant numbers, geopolitical tensions and security concerns. In this Mobility Minute video chat, our Global Immigration and Mobility attorneys delve into this trend. We review changes following the recent election in Germany, the UK’s increased enforcement actions, and potential shifts in the US that could impact employers’ ability to hire and transfer foreign talent. Additionally, we explore what employers should anticipate in these key jurisdictions and provide valuable strategies to help them stay informed and proactive in their approach to immigration compliance and workforce planning.

Click here to listen to the Mobility Minute.

*Captions are automatically generated. We apologize for any typos or errors.

Listen to this post

[UPDATE RE THE OMNIUS PROPOSAL HERE]

The European Union’s Corporate Sustainability Reporting Directive is a regulation requiring covered companies to disclose information on what they see as the risks and opportunities arising from social and environmental issues, and on the impact of their activities on people and the environment.

The CSRD impacts not only EU-based companies, but also non-EU companies that have substantial activities or a physical presence in the EU. This means that many large US-based companies must comply with the CSRD’s extensive sustainability reporting requirements which cover some potentially very sensitive topics.

Ensuring compliance will be a cross-organization project involving significant
input from employment legal and HR professionals who will need to consider issues
such as gathering the relevant data in a legally compliant way, advising on
consultation obligations with workers’ representatives, the scope and content of
relevant disclosures and any remediation work identified as a result of data gathered

Determining a company’s compliance obligations can be viewed as a three-stage process, involving a number of areas of the business:

  • Phase 1 – assessing whether the CSRD applies to the organization and, if so, the date from which reporting starts.
  • Phase 2 – assessing which reporting obligations are triggered by the materiality requirements.
  • Phase 3 – reporting in practice. From an HR perspective the most relevant ESRS will be those set out in ESRS S1 (own workforce) and ESRS S2 (workers in the value chain) although there may be some overlap with other ESRS, for example
    those that apply in relation to governance or general business conduct.

For more on this, read our alert here, or contact your Baker McKenzie employment lawyer.

Listen to this post
** UPDATE ** On March 3, 2025, the federal judge in the Maryland lawsuit denied the Trump administration’s request to stay the preliminary injunction discussed below.
The judge ruled that the administration failed to demonstrate a likelihood of success on the merits and that the injunction was necessary to prevent potential violations of free speech and due process rights.
Stay tuned for further updates as this case progresses through the courts and read on for more information about the injunction at issue.

On February 21, 2025, a federal district court in Maryland issued a preliminary nationwide injunction temporarily blocking significant provisions from two of President Trump’s executive orders targeting DEI programs. In a 63-page opinion, the judge concluded that the plaintiffs were likely to prevail in their challenges to these provisions on First and Fifth Amendment grounds.

While the district court’s order provides some temporary relief, it does not prevent the Trump administration from pursuing individual enforcement actions against companies that it believes operate “illegal” DEI programs (including enforcement actions by the DOJ and the Equal Employment Opportunity Commission), among other things.

On February 24, defendants in the case filed a notice of appeal with the Court of Appeals for the Fourth Circuit. While it remains to be seen how the appeal plays out, in the meantime, it’s important for employers to understand what the injunction did and did not do.

Background

The city of Baltimore and several academic and restaurant workers’ groups challenged one provision in EO 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and two provisions in EO 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) on constitutional grounds.

Plaintiffs sued Trump and these agencies: (1) the Department of Health and Human Services; (2) the Department of Education; (3) the Department of Labor; (4) the Department of the Interior; (5) the Department of Commerce; (6) the Department of Agriculture; (7) the Department of Energy; (8) the Department of Transportation; (9) the Department of Justice; (10) the National Science Foundation; and (11) the Office of Management and Budget. The EEOC is not a defendant.

By way of reminder, and as explained in our blog A Roadmap to Trump’s DEI Executive Orders for US Employers, executive orders are a powerful tool through which the President issues formal directions to the executive branch, agencies and officials on how to carry out the work of the federal government. Challenges to — and subsequent judicial review of — EOs are commonplace.

The NADOHE v. Trump decision and defendants’ appeal

This chart outlines the challenged provisions in the EOs, and the district court’s response:

Challenged Executive OrderChallenged ProvisionDistrict Court’s Ruling
EO 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing)The “Termination Provision” directing all executive agencies to terminate “equity-related” grants or contracts.The court enjoined the government defendants from freezing or terminating existing “equity-related” contracts and grants (under EO 14151).

The court held that the plaintiffs had shown a likelihood of success on their claim that the Termination Provision is unconstitutionally vague because it fails to provide clear guidance on what constitutes “equity-related” grants or contracts, which could lead to arbitrary and discriminatory enforcement.
EO 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity)The “Certification Provision” requiring federal contractors and grantees include in every contract or grant award a certification, enforceable through the False Claims Act, that it “does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.”The court enjoined the government defendants from:
– Requiring federal contractors and grant recipients to certify that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws;”  
– Requiring federal contractors and grant recipients “to agree that [their] compliance in all respects with all applicable Federal anti-discrimination laws is material” for purposes of the False Claims Act; and
– Bringing any enforcement action targeting “DEI programs or principles.”

The court held that the plaintiffs had shown a likelihood of success on their claim that the Certification Provision violates the First Amendment.
EO 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity)The “Enforcement Provision” directing the Attorney General to take measures to encourage the private sector to end illegal DEI, and to identify potential civil compliance investigations.The court enjoined the federal agency defendants from “bring[ing] any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.” 

The court held that the plaintiffs had shown a likelihood of success on their claims that the Enforcement Threat Provision violates the First Amendment and the Due Process Clause of the Fifth Amendment because there is no guidance regarding the DEI programs or practices that the administration considers illegal.

It did not “enjoin the Attorney General from … engaging in investigation” of DEI programs or to prohibit the Attorney General from preparing a report identifying investigation targets.

On Monday, February 24, defendants filed a Notice of Appeal with the Court of Appeals for the Fourth Circuit. We are closely monitoring what follows.

What didn’t the Maryland district court do?

  • The preliminary injunction does not change the requirement that federal contractors cease Affirmative Action Plans (other than for veterans and the disabled) by April 21, 2025.
  • The preliminary injunction does not prevent the Attorney General from preparing reports or pursuing investigations related to the DEI orders.
  • The preliminary injunction does not directly apply to the EEOC.

What’s next?

As expected, the Trump administration is appealing this decision to the Fourth Circuit.

A separate challenge to EO 14151 and EO 14173, as well as EO 14168 (“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”), is pending in the United States District Court for the District of Columbia (National Urban League et al. v. Trump).

Further challenges are likely, and it’s entirely plausible that the fate of the DEI Orders ultimately goes before the US Supreme Court.

Recommendations for employers

The Trump administration (and activists who are pressuring companies on the basis of their DEI initiatives with social media campaigns and the threat of legal action) likely will try to further their policy goals with respect to DEI in the private sector through any available means (e.g. the EEOC or other agencies not named in the lawsuit). As such the increased risk profile for certain DEI programs persists, and a DEI Health Check conducted under legal privilege remains a prudent and recommended action.

Our DEI EO Task Force is closely tracking challenges to Trump’s Executive Orders, industry shifts regarding DEI and related litigation activity. Contact your Baker McKenzie employment lawyer for more.

Listen to this post

Trump’s immigration Executive Orders address “enhanced vetting” of visa applicants, birthright citizenship and border security, among other things. Likely increasing ICE enforcement actions, including employer site visits and raids at workplaces, one of the EOs establishes a new “Homeland Security Task Force” enabling federal, state and local law cooperation in removing undocumented individuals.

As part of our Looking Ahead series, this special edition of the Mobility Minute features our attorneys with deep knowledge in immigration and mobility and government enforcement discussing: 

  • Immigration raids and worksite enforcement,
  • What immigration worksite enforcement entails,
  • Trends we are observing from Trump’s DHS regarding raids and other enforcement actions, and
  • How employers can prepare for a potential increase in worksite enforcement, including steps to take when government agents arrive at the door. 

Click here to listen to the Mobility Minute.

*Captions are automatically generated. We apologize for any typos or errors.

Listen to this post

Shortly after taking office, President Trump rescinded Biden’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence. Biden’s Executive Order sought to regulate the development, deployment, and governance of artificial intelligence within the US, identifying security, privacy and discrimination as particular areas of concern. Trump signed his own executive order titled “Removing Barriers to American Leadership in Artificial Intelligence,” directing his advisers to coordinate with the heads of federal agencies and departments, among others, to develop an “action plan” to “sustain and enhance America’s global AI dominance” within 180 days.

While we wait to see if and how the federal government intends to combat potential algorithmic discrimination and bias in artificial intelligence platforms and systems, a patchwork of state and local laws is emerging. Colorado’s AI Act will soon require developers and deployers of high-risk AI systems to protect against algorithmic discrimination. Similarly, New York City’s Local Law 144 imposes strict requirements on employers that use automated employment decision tools, and Illinois’ H.B. 3773 prohibits employers from using AI to engage in unlawful discrimination in recruitment and other employment decisions and requires employers to notify applicants and employees of the use of AI in employment decisions. While well-intentioned, these regulations come with substantial new, and sometimes vague, obligations for covered employers.

California is likely to add to the patchwork of AI regulation in 2025 in two significant ways. First, California Assemblymember Rebecca Bauer-Kahan, Chair of the Assembly Privacy and Consumer Protection Committee, plans to reintroduce a bill to protect against algorithmic discrimination by imposing extensive risk mitigation measures on covered entities. Second, the California Privacy Protection Agency’s ongoing rulemaking under the California Consumer Privacy Act will likely result in regulations restricting the use of automated decision-making technology by imposing requirements to mitigate algorithmic discrimination.

Continue Reading Passage of Reintroduced California AI Bill Would Result In Onerous New Compliance Obligations For Covered Employers
Listen to this post

This Baker Mckenzie Handbook covers key data and cyber laws in over 50 jurisdictions, and provides valuable insights into:

  • Key laws and regulations, including recent changes and expected developments over the next year
  • Foundational data privacy obligations including information and notification requirements, data subject rights, accountability and governance measures, and responsibilities of data controllers and processors
  • Data privacy requirements in the digital space, including the implications of artificial intelligence, profiling, and automated decision-making, and regulations on cookies, online tracking, and direct marketing
  • Cross-border data issues including international data transfer rules and data localization requirements
  • Data privacy requirements in key practical scenarios: data processing in the employment context, and the importance of data and cyber in transactional contexts
  • The rapidly evolving cyber regulatory landscape, including breach notification requirements
  • The roles of regulators, their enforcement priorities, and the penalties for non-compliance with laws and regulations.

In response to emerging trends, we have expanded the scope of the 2025 Handbook to include new content relating to AI, non-personal data, and trends in regulatory investigations and enforcement, ensuring that you are well-equipped to handle the evolving challenges in data and cybersecurity.

Click here to access the handbook.

Listen to this post

President Trump has taken quick action to ramp up immigration enforcement in his first days in office. While Trump’s early focus on deportations and border security is not new, the swift and aggressive enforcement approach represents a significant change as compared to prior administrations. These actions have led to arrests and heightened concerns among employers and employees alike.


What do employers need to know?

Since Trump’s inauguration, there has been a significant increase in targeted enforcement measures against individuals present in the United States who are not U.S. citizens who have a criminal record, and also recent arrivals to the United States who do not hold lawful immigration status. The vast majority of immigration enforcement since January 20 has occurred in private residences and public spaces, though there have been immigration enforcement actions at worksites. There have not been reports of wide-scale worksite raids yet, though the focus may shift to worksite inspections in the next wave of enforcement activities.

Worksite enforcement inspections can take a variety of shapes. In particular, employers should be prepared for the following:

  • Fraud audits in relation to employer-sponsored visa holders;
  • Administrative I-9 audits;
  • Arrests of targeted individuals; or
  • Raids based on suspicion of undocumented workers at worksite facility.
Continue Reading The Post-Inauguration Playbook: Spotlight on Immigration Enforcement and Raids
Listen to this post

In the first two days of his presidency, President Trump signed a series of executive orders aimed at dismantling diversity programs across the federal government, revoking longstanding DEI and affirmative action requirements for federal contractors, and directing public and private entities to end policies that constitute “illegal DEI discrimination.”

Suffice it to say the orders have left federal contractors, corporations, nonprofits, and other employers in the private sector grappling with what to do next. While the EOs reverberations will be felt for some time and the DEI journey for federal agencies and the private sector is likely to be a circuitous one as challenges are raised in the courts, before Congress and in the court of public opinion, employers do need to gain some traction and start the trip. In this article, we present a roadmap to consider as employers work through the impacts of the EOs on their organizations.

At the starting line: what the EOs do and don’t do

Executive orders are a powerful tool through which the President issues formal directions to the executive branch, agencies and officials on how to carry out the work of the federal government. Historically, EOs mostly addressed administrative matters, but some sought to drive substantial policy changes. While congressional approval is not required for an EO to be effective, judicial review is commonplace and also, EOs can be reversed by later administrations.

President Trump’s EOs addressing DEI do not change existing discrimination statutes, such as the bedrock prohibitions on discrimination in employment in Title VII of the Civil Rights Act of 1964. The orders do not ban or prohibit any or all private employer DEI programs. Rather, the orders direct federal agencies and deputized private citizens to root out (through investigations, enforcement actions, or False Claims Act litigation) “illegal discrimination and preferences” and, for government agencies, to take particular actions.

Similar to the situation following the US Supreme Court SFFA decision in June 2023, if your DEI programs were lawful before Trump’s inauguration – they still are. What is “illegal” under federal law today is the same as it was before Trump’s presidency. But what’s clearly different is the ferocity of the federal government’s intent and resources dedicated to scrutinizing alleged race- or sex-based preferences in the workplace, and the resulting level of scrutiny applied to DEI programs.

Continue Reading A Roadmap to Trump’s DEI Executive Orders for US Employers