Insights and Analysis

DEI executive order compliance checklist

19 March 2025

Since his inauguration in January, President Trump has signed multiple executive orders addressing diversity, equity, and inclusion (DEI) policies across the country. These actions have significant implications, including for government contractors, colleges and universities, and public companies across various industries. They also present potential increased risk of litigation and government investigations for U.S. and multinational businesses. Furthermore, companies and universities will be navigating these challenges with cross-currents from state laws and the demands of employees, students, investors, and consumers, both domestically and internationally.

To help clients assess potential risks, we have created a DEI executive order compliance checklist. This resource outlines key considerations across multiple areas to assist legal and compliance teams in managing DEI-related enforcement risks and adapting to ongoing regulatory changes.

Employment

Conduct a privileged audit of diversity related employment policies and programs to ensure compliance with anti-discrimination laws, including hiring, promotion, training, mentoring, and compensation/bonus programs.
Determine whether and how to make changes to existing policies and programs in light of anti-discrimination laws and statements from the government.
Monitor future government pronouncements regarding what the government believes is “illegal DEI.”
Investigate promptly, under privilege, complaints of discrimination on the basis of any protected characteristic.
Coordinate with other relevant leaders in the organization such as contracting departments, communications specialists, and corporate disclosure counsel.

Authored by Mike DeLarco, George Ingham, and Michelle Roberts Gonzales.

Civil litigation

Perform a thoughtful legal assessment of existing policies and programs.
Review external communications concerning DEI for accuracy and potential litigation risk.
Stay abreast of the relevant legal developments and enforcement trends.
Consider training key employees on how to promote compliance and minimize risk.
Encourage employees to seek legal advice early and often if questions or concerns emerge.

Authored by David Foster, Carrie DeLone, and Jo-Ann Sagar.

Added considerations for federal grantees/educational institutions

Review admissions policies, financial aid criteria, and other programs and activities for compliance with federal non-discrimination laws, including Title VI, Title IX, and the Constitution, as applicable, and general risk assessment.
Assess faculty hiring and promotion criteria for elements that may be challenged.
Assess risks under the False Claims Act related to compliance representations made in connection with participation in federal financial assistance and grant programs.
Examine training programs to determine whether any initiatives could be scrutinized under recent executive orders.
Monitor litigation and enforcement risks related to challenges against DEI initiatives.

Authored by Stephanie Gold, Joel Buckman, and Madelyn Wessel.

Public Company Disclosures and Governance Policies

Review recent public statements and disclosures on DEI commitments for compliance with SEC regulations.
Assess the risk that existing DEI disclosures and governance policies could give rise to administrative or legal action under executive orders or subject the company to stockholder lawsuits.
Monitor SEC guidance and enforcement actions related to DEI and ESG disclosures.
Ensure board and executive leadership understand the heightened scrutiny around DEI disclosures and governance policies in the current environment.
Engage with investor relations teams to proactively address potential concerns.

Authored by John Beckman, William Intner, Brian O’Fahey, and Nick Hoover.

ESG considerations

Be mindful that ESG reports and statements are increasingly a source of litigation risk.
Beware that ESG reports may be drafted with varied and potentially inconsistent aims in mind.
Take particular care with international ESG reporting, which may contribute to risk.
A disciplined, coordinated review process is key to managing risk.
A thoughtful approach to legal review and privilege is also important.

Authored by David Foster, Rita Hunter, Carrie DeLone, Jo-Ann Sagar, Jason Downs, and Karl Racine.

Added considerations for government contractors

Review existing EO 11246 compliance policies and practices in light of revocation of the EO 11246-based requirement to establish race- and sex-based affirmative action programs.
Update internal federal contract-related policies and procedures as needed based on results of review, including wind-down of EO race- and sex-based affirmative action programs.
Review federal subcontracts and related templates to assess whether subcontractor “flowdowns” concerning compliance with EO 11246 and related FAR clauses require modification.
Closely monitor solicitations, active proposals, and potential modifications to ongoing government contracts for EO-related certifications and take steps to update “SAM” registrations.
Evaluate federal subcontractor small business/diversity programs in light of anti-discrimination laws and statements from the government.

Authored by Joy Sturm, Allison Pugsley, William Ferreira, and Michael Mason.

Government investigations

Monitor enforcement trends and pronouncements from U.S. enforcement authorities and regulators related to DEI programs.
Review DEI policies and statements, under privilege and at the direction of legal counsel, to assess compliance with applicable law and to implement updates as necessary to mitigate risk.
Ensure compliance with whistleblower protections and internal investigations processes if employees or others raise concerns about DEI-related practices.
Consult with experienced counsel regarding response to any government investigations or regulatory inquiries related to DEI programs.

Authored by Stephanie Yonekura, Mitchell Lazris, Matthew Sullivan, and Michele Sartori.

State Law and State Attorney General considerations

Track state AG investigations and enforcement trends related to DEI.
Ensure compliance with conflicting state and federal DEI obligations, particularly in regulated industries.
Monitor potential state-level litigation risks arising from complaints, settlements, or judgments surrounding DEI commitments.
Evaluate political and reputational risks of DEI-related policies, or the lack thereof, given state-level scrutiny.
Prepare for potential subpoenas or document requests from state AG offices.

Authored by Jason Downs and Karl Racine.

Contacts

Michael E. DeLarco

Partner

location New York