DEI Developments: DOJ Issues Memo, "Ending DEI And DEIA Discrimination And Preferences"

As we reported previously, President Trump's January 21 Executive Order (EO) 14173, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," terminated certain affirmative action requirements applicable to government contracts and federally-funded construction contracts. The EO also mandates that new provisions be included in all government contracts and all grants, certifying that counterparties do not have diversity, equity and inclusion (DEI) policies that violate federal anti-discrimination law. We noted that, in absence of additional government guidance, there was some challenge in identifying what DEI programs may be permissible going forward.

The EO requires a report from the Attorney General within 120 days to clarify the new administration's position on these issues. Some government contractors had concern that report might not come before expiration of the 90-day grace period from the date of the EO to comply with the regulatory scheme