On January 21, 2025, the day after beginning his second term, President Donald J. Trump issued an Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Ironically, the EO may embolden the very discrimination it seeks to end because it targets diversity, equity, and inclusion (“DEI”) programs, which serve the purpose of combating disparities in gender, race, color, sexual orientation, and sexual identity, among other things.
President Trump’s EO is also likely to affect individuals outside the federal government, from students to employees to professionals. That is because the EO encourages the private sector to end DEI, including by requiring all federal agencies to identify up to nine “potential civil compliance investigations” of large corporations, large associations, foundations, state and local bar associations, medical associations, and institutions of higher education, among others.
In an effort to adopt practices consistent with this EO and/or avoid investigations by agencies under President Trump’s administration, private entities may eliminate DEI initiatives and take other adverse action towards minority groups. Ironically, this may subject those private entities to civil liability.
Therefore, if you are the owner of a private entity that has become a DOJ target, you need experienced attorneys like Fishwick & Associates on your side. Our white-collar crime defense team is led by former U.S. Attorney John Fishwick. He has prosecuted and defended criminal cases in federal court. Fishwick is a nationally recognized legal expert who has been quoted in The New York Times and The Wall Street Journal and has appeared on CNN, MSNBC, and Fox Business. Our white-collar crime attorneys work with clients from all walks of life—business executives, small business owners, managers, accountants, doctors and other medical providers, to name a few—and we can help you navigate the difficult DEI waters in the storm created by Trump’s DEI Executive Order.
How Is the Private Sector Affected?
President Trump’s EO directs each federal agency to identify up to nine organizations for “civil compliance investigations.” This cap of nine appears arbitrary but could cause wide-ranging fear and uncertainty. Large corporations, private universities with significant endowments, professional associations, and charitable foundations are suddenly at risk of being labeled “discriminatory” if they maintain DEI programs.
The arbitrary cap of nine investigations raises the real potential for inequitable enforcement. Certain organizations might be spared because of political favor, while others could be thrust into the spotlight without clear rationale. As a result, private companies may feel compelled to eliminate or reduce DEI programs proactively, out of fear that they may end up on the government’s radar—or even in order to “curry favor” with the administration.
The EO’s scope is broad. It includes large corporations, professional associations, charitable foundations, and even prestigious universities. Many of these organizations either implement DEI programs for their employees, students, or members, or have received public recognition for championing diversity and inclusion initiatives. Even organizations that are not obviously reliant on federal funding or oversight can face serious implications if they have a large enough endowment or operational budget to attract the government’s attention.
Steps to Take If You Become a DOJ Target
Learning that your organization is under investigation by DOJ can be unsettling—especially when the inquiry involves contentious policy areas like DEI. The stakes are high: on one hand, your company may face scrutiny from federal agencies for allegedly discriminatory policies; on the other, you could expose yourself to lawsuits from minority groups if you eliminate or drastically curtail DEI initiatives. Below are some steps private entities should consider if they find themselves the focus of a DOJ investigation authorized under President Trump’s DEI Executive Order:
- Consult Experienced Counsel Immediately
Engaging skilled legal representation should be your first step. An attorney knowledgeable in federal investigations can protect your rights and help you navigate the complexities of compliance while minimizing exposure to further legal liabilities. At Fishwick & Associates, our team has decades of experience handling white-collar investigations and civil rights matters, positioning us to advise you on your risks and defense strategies, as well as help navigate you through the next steps. - Preserve All Relevant Records and Communications
Once you become aware of a DOJ investigation or the possibility of one, it is critical to preserve any documentation—electronic or otherwise—related to your DEI programs, hiring practices, training materials, and communications with employees or external partners. Destruction or alteration of records (even inadvertently) can lead to accusations of obstruction of justice, a serious federal offense. - Assess Potential Liability Under Federal and State Laws
Balancing the EO’s directives against existing anti-discrimination laws—such as Title VII of the Civil Rights Act—can be challenging. If your organization drastically cuts or eliminates DEI programs, you may inadvertently create a “disparate impact” on protected groups, which can lead to litigation. At Fishwick & Associates, our experienced attorneys can help you assess whether changes to your policies might trigger liability under federal and state civil rights statutes.
By acting swiftly and strategically, you can significantly reduce the legal and reputational risks associated with a DOJ investigation under President Trump’s DEI Executive Order. When facing these high-stakes issues, an experienced legal team like Fishwick & Associates is invaluable in guiding you through both federal inquiries and any subsequent litigation.
Targeted by DOJ for DEI? Contact Fishwick & Associates to Discuss Your Legal Options
If you are a private organization that is being targeted by DOJ pursuant to President Trump’s DEI Executive Order, you need to fully understand the risks and how to move forward. The experienced attorneys at Fishwick & Associates PLC can help you navigate this complex process. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.