Federal Contractors, DEI, and Employment: Executive Order Defining Illegal Actions; New Obligations; Compliance Issues

This CLE webinar will examine recently issued Executive Order 14398, "Addressing DEI Discrimination by Federal Contractors," targeting DEI initiatives by federal contractors, imposing additional obligations on covered entities, and potentially expanding the scope of enforcement action. The panel will discuss the new definition of actions constituting "racially discriminatory DEI activities," address what employer activities may be considered high risk, and offer best practices for compliance.

The Trump administration recently issued a second executive order (EO 14398 or the EO) targeting DEI initiatives by federal contractors, imposing additional obligations on covered entities, and potentially expanding the scope of enforcement action. EO 14398 newly defines "racially discriminatory DEI activities" (RD DEI), requires a mandatory clause in government contracts that bans the newly defined RD DEI by contractors and subcontractors, and makes compliance subject to False Claims Act (FCA) liability in addition to that which may be incurred under antidiscrimination laws.

EO 14398's definition of RD DEI includes actions in the employment context, particularly "disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity’s resources." The EO defines "program participation" as "membership or participation in, or access or admission to: training, mentoring, or leadership development programs; educational opportunities; clubs; associations; or similar opportunities that are sponsored or established by the contractor or subcontractor."

Given the broad scope of defined activities, covered employers and their counsel must understand the EO's requirements, how the EO expands on earlier EOs and guidance, and what they must do to minimize risk of enforcement action. Additionally, employment counsel should consider what these requirements may eventually mean for employers in the private sector as government agencies continue to heighten their scrutiny of DEI programs.

Listen as our authoritative panel examines EO 14398 and the resulting obligations on covered entities. The panel will discuss how the EO fits into the Trump administration's overall anti-DEI initiatives, address the impact on covered employers, and offer best practices for compliance.