Month: September 2025

Since returning to office, President Donald Trump and his administration have waged a war on diversity, equity and inclusion efforts, including those of private businesses across the country.

Trump fired the first shot on Jan. 21, 2025 – his first full day back in office – when he signed an executive order that denounced DEI as “immoral” and “illegal discrimination.” The order claimed that, under such policies, “hardworking Americans” were being “shut out of opportunities because of their race or sex.”

A week later, Trump dismissed two Democratic commissioners of the Equal Employment Opportunity Commission, the federal agency that helps enforce workplace antidiscrimination laws. Because these officials were forced out years before their terms expired, their firing was arguably illegal. But it allowed Trump to dramatically shift the commission’s focus.

Andrea Lucas, named by Trump to be the agency’s acting chair, quickly announced a commitment to what she described as “rooting out unlawful DEI-motivated race and sex discrimination.”

Since then, there’s been a steady drumbeat of anti-DEI statements from the administration and its supporters. But these proclamations fail to explain what is illegal about so-called “illegal DEI.” As professors and workplace law experts, we recognize that companies may have trouble distinguishing political rhetoric from legal obligations. That’s why we recently co-founded The Legal DEI Project, a free resource providing clear information on DEI policies and practices and the law.

Chilling effect

The Trump administration’s statements about DEI are generally broad in scope and short on details, leading to an overall chilling effect on private businesses.

For example, one of Trump’s executive orders suggests, without evidence, that corporations and other large employers have replaced a commitment to “hard work” with an “unlawful, corrosive, and pernicious identity-based spoils system.” It then instructs federal agencies to compile lists of the businesses and other institutions they believe are the “most egregious and discriminatory DEI practitioners” and pursue compliance investigations against them.

Some employers have responded to this threat by aggressively slashing their programs and personnel dedicated to ensuring fairness at work. That reaction is understandable. But it is also deeply mistaken, as many tried-and-true practices that effectively reduce workplace discrimination are getting caught in a dragnet of anti-DEI fever.

Employers who act rashly by simply abandoning all efforts related to diversity and inclusion may actually increase rather than decrease their risk of being sued by workers who believe they have experienced discrimination – the overwhelming majority of whom are members of racial minority groups rather than white workers.

Employers could also miss out on the benefits that can flow from diverse workforces, such as higher profits, innovation and creativity.

DEI isn’t illegal, but discrimination is

DEI is a generic, umbrella term used to describe organizational efforts to treat all people fairly. While such initiatives have been around for decades, the DEI label became common only in the past decade as the Black Lives Matter and #MeToo movements highlighted pervasive discrimination and inequality in U.S. society.

The term, however, has no legal meaning. DEI is instead a collection of aspirational objectives used as corporate or institutional branding, which Trump has turned into a straw man by repeatedly condemning what he alleges is “illegal DEI.”

Workplaces are governed by antidiscrimination laws. Those laws prohibit employers from making hiring or other personnel decisions based on workers’ protected characteristics such as race, sex or religion, just as they did before DEI programs became popular.

This means that employers generally cannot implement preferences for, or limit opportunities to, employees based on these traits. If DEI programs include improper preferences, those preferences were illegal before Trump took office. They should be discontinued.

Importantly, U.S. employment law requires employers to do more than just punish individual employees who make biased decisions or harass co-workers. Employers must also, at a minimum, take proactive steps to prevent harassment and reasonably accommodate workers with qualifying disabilities, pregnancy-related limitations and religious needs.

Employers must also make sure that workplace policies, such as how duties are assigned and how pay is set, are fair and unbiased.

Congress, not the president, creates laws

Multiple laws enacted by Congress, from the 1964 Civil Rights Act to the 2022 Pregnant Workers Fairness Act, and decades of court decisions interpreting those laws, have established the rules that govern the workplace today. The Trump administration has no authority to single-handedly change these laws – or the regulations implementing them – just by issuing executive orders.

What those orders primarily do is set presidential agendas. Presidents use them to direct some actions of the federal government and its contractors, but executive orders do not directly apply to most private companies, nonprofits or other nongovernmental employers.

Although the EEOC may follow Trump’s directives, it cannot change or ignore federal laws. In fact, recent EEOC actions – such as spontaneously demanding information from law firms about their diversity initiatives – that arguably exceed its authority are being challenged in court.

Employees, not the government, file most complaints

When employers attempt to conform to the Trump administration’s political goals by removing any guardrails they’ve put in place to prevent discrimination, they put themselves at greater legal risk. That is because most discrimination lawsuits are brought by employees, not the federal government.

On average, individual employees file 60,000 to 90,000 EEOC charges annually and tens of thousands of lawsuits arising from those charges in federal and state court. By comparison, the EEOC has brought fewer than 150 cases annually in recent years.

While the EEOC’s attack on DEI programs may encourage more white workers to file discrimination claims, the data shows that most actionable discrimination continues to be experienced by women and members of racial minority groups, not by white people.

And that problem is likely to be exacerbated by employers dismantling their DEI programs.

Not a zero-sum game

Just as employing a diverse workforce is perfectly legal, so too is taking action to value diverse perspectives and leadership.

Adopting inclusive recruitment strategies, structuring decision-making practices to be more objective, and assessing job descriptions to focus on tasks and qualifications can all help reduce the influence of racial, gender, religious or other biases in hiring and promotion. Offering training and mentoring, providing support to meet the needs of all workers, and creating environments that promote excellence and belonging can ensure equal access to opportunities for all employees.

Adopting such human resource practices also makes good business sense. When properly executed, they reduce the risk of workplace discrimination lawsuits and liability by flagging any potential discrimination and allowing employers to proactively address it.

Antidiscrimination law has always required employers to judge all workers fairly and on the basis of their merit. Making changes that aim to reduce bias against some employees is not an act of discrimination against white men or others who do not belong to a group that has historically experienced discrimination.

Those changes instead help employers comply with antidiscrimination laws – the same laws that have governed U.S. workplaces for over 60 years and continue to do so today.

Deborah Widiss serves on advisory boards for the Indiana Community Action Poverty Institute.

Rachel Arnow Richman receives funding from the University of Florida for academic research purposes.

Stephanie Bornstein and Tristin Green do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

President Donald Trump’s penchant to act first, ask later was on full display recently when he became the first president in American history to fire a member of the Federal Reserve Board.

Trump’s axing of federal employees is nothing new – thousands have been terminated, including the heads of agencies that, like the Federal Reserve, are designed to be insulated from presidential control.

But in removing Lisa Cook, Trump has entered into a morass of legal questions and challenged long-standing beliefs about the power of the president to control the U.S. economy.

Trump’s action, if upheld by courts, would upend the Fed’s century-long practice of formulating the nation’s monetary policy free from political pressure. It also could affect the budget of every American household, with the cost of goods and services influenced by political ideology more than financial expertise.

As a scholar of the American courts, I believe that, depending upon how courts resolve the case, it could also mark a significant shift in the ability of the judicial branch to check executive power.

This agency is different

The dispute with Cook reached the public on Aug. 20, 2025, when Trump-appointed director of the Federal Finance Housing Agency Bill Pulte announced on social media that he had made a criminal referral to the Department of Justice about potential mortgage fraud by Cook. The DOJ subsequently opened an official investigation.

After Pulte’s announcement, Trump posted, “Cook must resign, now!!!” She refused and was officially fired by Trump five days later.

Cook then filed suit in federal court on Aug. 28, asking U.S. District Judge Jia Cobb to issue an emergency order blocking her removal. The litigation is ongoing.

Among the multitude of cases about Trump’s ability to fire employees of federal agencies, this one is different – because the agency is different.

Created by Congress in 1913 after a series of banking panics, the Federal Reserve is charged with managing the nation’s economy. It acts as the national bank, monitors the health of other financial institutions, and, most critically, develops monetary policy, which includes setting interest rates, the primary tool with which it manages inflation and ensures long-term economic growth and stability.

Precisely because of the Fed’s power, presidents have often tried to influence it. Sharp criticism of its members is nothing new. Trump has an ongoing and very public fight with the chair of the Fed board, Jerome Powell, about interest rates.

But a president actually firing a board member is something else entirely.

Supreme Court warning

The Fed is just one of dozens of what are termed “independent agencies.” These are part of the executive branch but designed by Congress to operate insulated from the president’s preferences and pressure. Over time, precisely because it is so powerful, the Fed’s ability to act free from the president has become particularly sacrosanct.

The primary mechanisms through which Congress ensures agency independence are “removal provisions,” statutory directives that define when and why the president can fire agency leadership. The Federal Reserve Act, the law that creates the Fed and sets out its structure and mission, provides that members of the board, called “Governors,” serve 14-year terms, “unless sooner removed for cause by the President.”

“For cause” may sound familiar because its appearance in a different law also recently triggered litigation. That happened when Trump removed the heads of two other independent agencies, Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board. The Supreme Court decided in April that the restriction on the president’s ability to fire those two independent agency heads violated Article 2 of the Constitution.

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Read more:
Supreme Court ignores precedent instead of overruling it in allowing president to fire officials whom Congress tried to make independent

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In that same opinion, however, the court took pains to specify that its ruling did not apply to the Federal Reserve Board. Calling the Fed a “uniquely structured, quasi-private agency” with a “distinct historical tradition,” the majority signaled to Trump that booting members off the Federal Reserve Board was a no-go.

When he fired Cook, Trump flouted this directive. A legal battle was inevitable.

What’s behind the case

The case is complex and involves questions about whether Cook’s termination violates a congressional statute and the due process clause of the U.S. Constitution.

Notably, the parties are not arguing about the constitutionality of the removal provision itself, as they were in the Wilcox case. Instead, the dispute centers primarily around the meaning of “for cause” – that is, what reasons can legally justify firing a board governor. Unlike other statutes, which use additional terms such as “inefficiency, neglect or malfeasance of duty while in office,” the Federal Reserve Act provides no further guidance.

Trump argues that the – alleged – mortgage fraud is sufficient “cause” to remove Cook, particularly from an agency charged with managing the nation’s finances. Cook claims that mere allegations about private conduct before she was appointed to the board cannot justify her termination, particularly when those allegations appear to be a pretext for a political disagreement.

But lurking in the background of this seemingly picayune fight over a single word in a 111-year-old statute are fundamental questions about separation of powers, checks and balances, and which branch of government determines the law.

‘Say what the law is’

Trump’s fuller argument is actually quite bold.

As he is doing in other lawsuits, the president is asserting that he – and he alone – gets to determine the meaning of “cause.” The term, his lawyers write, is “capacious” and its meaning is entirely vested by Congress in the president. No court can second-guess his judgment.

The claim is striking and seems to fly in the face of the country’s system of checks and balances. In addition, if the branch of government charged with carrying out the law – the executive branch – also gets to define it, separation of powers also appears to be left by the wayside.

Cook counters that judicial review of termination decisions is critical.

If courts abandon their responsibility here, she argues, they will obliterate the independence of the Federal Reserve and subject the national economy to the short-term whims of a president rather than the long-term vision of economic experts.

And given the clear and continued acquiescence of Congress to this president’s broad assertions of power, they would also remove what, at least until the next presidential election, may be the last remaining check on executive power.

The case will likely reach the Supreme Court this fall, and the outcome is hard to predict. Trump has benefited from a string of victories there issued by a conservative majority that believes strongly in executive power and judicial deference to the president.

At the same time, it will be difficult to ignore the sentiments about the independence of the Fed that those same conservative justices expressed in the Wilcox case and the potential economic consequences a ruling for Trump might generate.

The court’s ultimate decision may actually depend upon what role it wants to play in the country’s fraying democratic system. The legendary Chief Justice John Marshall famously wrote in 1803 that it is “emphatically the province and duty of the judiciary department to say what the law is,” a sentiment inscribed on the marble wall of the Supreme Court building in D.C.

This case provides the opportunity to see whether the maxim still holds true.

Claire B. Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation