Diane Holland

On January 21, 2025, President Trump issued Executive Order (EO) 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The EO raises significant new considerations for private companies and institutions of higher education that operate in the United States regarding their diversity, equity, inclusion, and accessibility (DEI or DEIA) programs because it directs all federal agencies, including the U.S. Department of Education (DOE), to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” and “enforce [the country’s] longstanding civil rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” The EO does not define what constitutes an “illegal DEI preference or program,” which has led to uncertainty about its scope.

WHAT: The U.S. Court of Appeals panel has stayed a preliminary injunction that the U.S. District Court for the District of Maryland had issued covering parts of two Executive Orders: EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The Executive Orders (collectively, the DEI EOs) seek to discourage and eliminate Diversity, Equity, and Inclusion (DEI) concepts, policies, and practices across the federal government and “encourage” the private sector to terminate DEI programs that constitute illegal discrimination and preferences.

UPDATE as of March 5, 2025: Within days of our initial publication of this alert, additional lawsuits with identical or similar claims were filed challenging the DEI EOs. On February 20, the San Francisco AIDS Foundation filed a complaint in the District Court for the Northern District of California San Francisco Division asserting that the DEI EOs and EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” violate the First and Fifth Amendments and are ultra vires presidential action in excess of authority. A motion hearing for preliminary injunction is set for May 22, 2025. On February 26, the Chicago Women in Trades similarly filed suit for injunctive and declaratory relief in the District Court for the Northern District of Illinois Eastern Division asserting that the DEI EOs violate the First and Fifth Amendments and Article I § 8 (Spending Clause and Separation of Powers) of the U.S. Constitution, and targeting the same Termination, Certificate, and Enforcement Provisions as those enjoined by the Maryland court.

On October 23, the Federal Communications Commission (FCC or Commission) issued a Notice of Inquiry (NOI) focused on customer service across a wide array of communications companies, expressly singling out providers of voice, broadband, cable, and direct broadcast satellite (DBS) services. The NOI’s objective is to assess whether customers “have appropriate access to the customer service resources they require to interact with their service provider in a manner that allows them to efficiently resolve issues, avoid unnecessary charges, and make informed choices regarding the services they obtain from these service providers.” The NOI also explores possible regulatory approaches, including as related to service cancellation, service installations and outages, automatic service renewals, the use of artificial intelligence (AI), and customer service practices for individuals with disabilities and English as a second language customers, among other things. Throughout the NOI, the Commission asks detailed questions about current customer service practices and the impacts of potential new requirements, including potential privacy impacts. The Commission approved the NOI by a 3-2 party-line vote, with Commissioner Brendan Carr issuing a dissenting statement questioning the FCC’s authority to regulate customer service standards for the industry.

Recent Executive Orders concerning diversity, equity, and inclusion (DEI) have created uncertainty and potential risks for companies regarding their workplace policies, practices, and procedures. This webinar will explore the complex factors companies need to consider in making informed decisions about their DEI programs to ensure compliance and reduce legal risks.

While the FCC is well-known for broadcast and telecom regulation, the Commission regulates broadly, reaching communications networks, the marketing and sale of electronic devices, space-based services, diverse grant and subsidy programs, broadband labeling, and more. It also recently voted to grant itself broad authority over much of the internet.