DEI Task Force Update (March 21, 2025)

Diversity  |  March 21, 2025

Gibson Dunn’s Workplace DEI Task Force aims to help our clients navigate the evolving legal and policy landscape following recent Executive Branch actions and the Supreme Court’s decision in SFFA v. Harvard. Prior issues of our DEI Task Force Update can be found in our DEI Resource Center. Should you have questions about developments in this space or about your own DEI programs, please do not hesitate to reach out to any member of our DEI Task Force or the authors of this Update (listed below).

Key Developments:

On March 19, the Equal Employment Opportunity Commission (EEOC) issued guidance entitled “What You Should Know About DEI-Related Discrimination at Work,” which includes eleven questions and corresponding answers addressing the process for asserting a discrimination claim and the scope of protections under Title VII of the Civil Rights Act of 1964 (Title VII) as they relate to DEI programs. The EEOC and the Department of Justice (DOJ) also released a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work,” which provides examples of “DEI-related discrimination” under Title VII and directs employees who “suspect [they] have experienced DEI-related discrimination” to “contact the EEOC promptly.” As described in an EEOC press release, these documents are designed “[t]o help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as ‘DEI.’”

The guidance broadly defines potentially unlawful DEI initiatives as, among other things, programs that involve “[a]ccess to or exclusion from training (including training characterized as leadership development programs)”; “[a]ccess to mentoring, sponsorship, or workplace networking / networks”; “[i]nternships (including internships labeled as ‘fellowships’ or ‘summer associate’ programs)”; and “[s]election for interviews, including placement or exclusion from a candidate ‘slate’ or pool.” The guidance also addresses the unlawful “segregation” of employees, noting that employers may not “separate workers into groups based on” protected characteristics “when administering DEI or any trainings [or] workplace programming,” even if the separate groups “receive the same programming content or amount of employer resources.” The guidance further notes that “unlawful segregation can include limiting membership in workplace groups, such as Employee Resource Groups (ERG), Business Resource Groups (BRGs), or other employee affinity groups, to certain protected groups.” The guidance also provides that employers may not “justify taking an employment action based on race, sex, or another protected characteristic because the employer has a business necessity or interest in ‘diversity,’ including preferences or requests by the employer’s clients or customers.” Finally, the guidance suggests that DEI-related trainings “may” create a hostile work environment if there is evidence that the “training was discriminatory in content, application, or context.”

For more information about this guidance, please see our March 20 client alert, available here.

On March 19, the Trump Administration announced that it would suspend approximately $175 million in federal funding for the University of Pennsylvania. It made the announcement via a post on social media site X in which it embedded a Fox Business clip that was sourced to an unnamed White House official. In the post on X, the White House stated that the decision was based on Penn’s “policies forcing women to compete with men in sports.” The announcement came after the Education Department’s Office for Civil Rights opened an investigation into the University’s swimming program following President’s Trump’s executive order (EO) banning transgender athletes from women’s sports. A spokesperson from the University said the school had not received notification of this action.

On March 17, Acting EEOC Chair Andrea Lucas sent letters to 20 law firms requesting information about their DEI practices and programs. In the letters, Lucas cites publicly available information about the firms’ hiring practices and diversity initiatives and states that she is “concerned” that those “programs, policies, and practices” may be unlawful under Title VII of the Civil Rights Act. The letters make the same 37 requests for information from each target firm from 2019 to the present, including requests for information about their hiring and promotion processes, diversity goals, application and selection criteria for fellowship programs, and participation in diversity internship programs. Among other information, the requests also seek the name, sex, race, GPA, and contact information for all applicants for legal positions at the firm at any level, any lawyers selected for particular programs, and all lawyers considered for elevation to partner. The requests also ask firms to list the clients that have “diversity requirements,” and instances in which the firms provided demographic information to clients. In a press release issued the same day as the letters, Acting Chair Lucas states: “The EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms.”

On March 14, a panel of the U.S. Court of Appeals for the Fourth Circuit issued a unanimous ruling temporarily staying the preliminary injunction in Nat’l Ass’n of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 1:25-cv-00333-ABA (D. Md. 2025). The stay decision permits the implementation and enforcement of key aspects of two recent Executive Orders signed by President Trump: EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The preliminary injunction stayed by this decision had blocked enforcement of EO 14173’s requirement that federal contractors and grant recipients certify they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” and “agree that [their] compliance in all respects with all applicable federal anti-discrimination laws is material” for purposes of the False Claims Act. It had also enjoined the federal government from freezing or terminating existing “equity-related” contracts and grants under EO 14151.

While the Fourth Circuit stay order itself is relatively short, all three judges on the panel—Chief Judge Diaz, Judge Harris, and Judge Rushing—wrote concurring opinions elaborating on their reasoning. Chief Judge Diaz wrote that “despite the vitriol being heaped on DEI,” those working on such efforts “deserve praise, not opprobrium,” for “when this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all.” Judge Harris explained that she understood the EOs to be “distinctly limited in scope” to address only “conduct that violates existing federal anti-discrimination laws,” and that any agency action beyond that scope may be unconstitutional. Her reasoning leaves open room for as-applied constitutional challenges to the EOs, which plaintiffs may seize on once enforcement of the EOs resumes. Judge Rushing wrote that the other judges’ “view on whether certain Executive action is good policy” is an “impermissible consideration” in fulfilling the court’s “duty to adjudicate cases and controversies according to the law.” Judge Rushing also raised questions about the plaintiffs’ standing and ripeness, noting that the plaintiffs have not challenged any specific agency action or decision.

On March 14, the U.S. Department of Education’s Office for Civil Rights (OCR) announced an investigation into 45 universities for potential violations of Title VI of the Civil Rights Act of 1964 over their partnership with “The Ph.D. Project,” a nonprofit organization that helps students with insight and networking opportunities related to pursuing a Ph.D. Additionally, OCR is also investigating six universities “for allegedly awarding impermissible race-based scholarships” and one university “for allegedly administering a program that segregates students on the basis of race.” The investigations followed a February 14 Dear Colleague Letter OCR sent nationwide reminding schools of their “obligations to end the use of racial preferences and stereotypes in education programs and activities.” The full list of universities under investigation is available here.

On March 14, Texas Attorney General Ken Paxton sent a letter in response to an inquiry from Colonel Freeman Martin, Director of the Texas Department of Public Safety, regarding the “[v]alidity of district court orders directing state agencies to amend a person’s biological ‘sex’ designation on state identification documents.” In the letter, Paxton writes that district courts in Texas lack jurisdiction to issue these orders, reasoning that the “‘judicial power’ endowed to district courts” does not justify “ex parte orders directing state agencies to amend a person’s biological sex” on birth certificates and driver’s licenses. On this basis, Paxton concludes that these district court orders are void and instructs that “prior ‘corrections’ should be reversed” immediately.

On March 6, President Trump issued an executive order titled “Addressing Risks from Perkins Coie LLP,” which, among other things, requires the Chair of the EEOC to “review the policies of representative large, influential, or industry leading law firms for consistency with Title VII of the Civil Rights Act of 1964, including whether large law firms: reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.” Additionally, the EO directs the Attorney General to work with the EEOC Chair and with State Attorneys General as appropriate to investigate practices of “large law firms . . . who do business with federal entities for compliance with race-based and sex-based non-discrimination laws and take any additional actions the Attorney General deems appropriate in light of the evidence uncovered.” The letters from the Acting Chair of the EEOC to 20 law firms appear to be in response to these directives. The first section of the EO stated that Perkins Coie “racially discriminates against its own attorneys and staff, and against applicants.” The EO mandates the suspension of security clearances for the firm’s employees, a review of government contracts involving the firm and government contractors that work with the firm, and restrictions on access to government buildings and communications with government officials by the firm.

In response, on March 11, Perkins Coie filed a lawsuit and a motion for a temporary restraining order (TRO) challenging certain provisions of the EO, arguing that the order was an unconstitutional attempt to punish the firm for its legal representation and support of diversity and inclusion initiatives. The case is Perkins Coie LLP v. U.S. Department of Justice et al., No. 1:25-cv-00716 (D.D.C. 2025). On March 12, 2025, the United States District Court for the District of Columbia granted the TRO halting the enforcement of certain provisions of the EO. The court described the EO as “viewpoint discrimination” and warned that it would have a “chilling harm of blizzard proportions” on the legal profession if allowed to stand. The motion for a TRO filed by Perkins Coie did not seek to block section 4 of the EO, which directs the EEOC to review the DEI practices of large law firms. Accordingly, the court’s ruling did not address that provision.

On March 14, the White House issued a similar executive order aimed at the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, which among other things said that the firm had “discriminate[d] against its own employees on the basis of race and other categories prohibited by civil rights law.” It noted that “Paul Weiss, along with nearly every other large, influential, or industry leading law firm, makes decisions around ‘targets’ based on race and sex.” On March 20, President Trump announced that he is withdrawing the EO after Paul Weiss “agree[d] that the bedrock principle of American Justice is that it must be fair and nonpartisan,” “affirm[ed] its commitment to merit-based hiring, promotion, and retention” and stated it “will not adopt, use, or pursue any DEI policies,” agreed to “conduct a comprehensive audit of all its employment practices,” and promised to “dedicate the equivalent of $40 million in pro bono legal services . . . to support the [Trump] Administration’s initiatives.”

On March 6, the Dean of the Georgetown University Law Center, William Treanor, wrote in response to a March 3 letter from Interim U.S. Attorney for the District of Columbia, Edward Martin. In his letter, Interim U.S. Attorney Martin asks Dean Treanor whether he has “eliminated all DEI from [the] school and its curriculum” and whether he would “move swiftly to remove it” if “DEI is found in your courses or teaching in [any way].” The letter additionally informs the law school that the United States Attorney’s Office for the District of Columbia will not consider any applicant from a school teaching and utilizing DEI for any employment, fellowship program, or internship.

Dean Treanor’s response asserts that Martin’s letter “challenges Georgetown’s ability to define its mission as an educational institution” in violation of the First Amendment, which “guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it.” Dean Treanor notes the current Administration has itself affirmed this “bedrock principle of constitutional law,” asserting that the Department of Education has confirmed “that it cannot restrict First Amendment rights and that it is statutorily prohibited from ‘exercising control over the content of school curricula.’” In closing, Dean Treanor asked the U.S. Attorney’s office to confirm that any Georgetown-affiliated candidates for employment with the office will receive full and fair consideration.

Media Coverage and Commentary:

Below is a selection of recent media coverage and commentary on these issues:

  • Reuters, “Exclusive: Proxy Adviser Glass Lewis Sticks with Diversity Guidance, Will Flag Risk” (March 4): Ross Kerber of Reuters reports that proxy adviser Glass Lewis will continue to consider boardroom diversity when making voting recommendations. Kerber reports, however, that now when recommending against a board candidate for a reason related to diversity, Glass Lewis will also note “information that could support an alternative vote by the client.” This change follows last month’s announcement by Institutional Shareholder Services that it would no longer consider diversity when making boardroom voting recommendations. Kerber writes that, in an email to clients seen by Reuters, Glass Lewis reaffirmed its 2025 benchmark guidelines for U.S. companies, which recommend that shareholders vote against certain directors at large U.S. companies when their boards lack gender, racial, or LGBTQ diversity.
  • New York Times, “Trans Workers Describe a ‘Betrayal’ by an Agency Meant to Protect Them” (March 5): The New York Times’ Jessica Silver-Greenberg reports on the recent actions by the EEOC to dismiss cases involving transgender and nonbinary workers. The article highlights the case of Asher Lucas, who was fired from the restaurant Culver’s after complaining about harassment due to his transgender identity. The EEOC initially sued Culver’s for unlawful employment practices but has since moved to dismiss the case, citing “President Trump’s executive order asserting that there are only two sexes, male and female.” Citing to the same EO, the EEOC has also moved to dismiss six other lawsuits against various companies, including a pizzeria at Chicago O’Hare International Airport and a hotel franchise in western New York, which were accused of creating hostile work environments for transgender and nonbinary employees and retaliating against them when they complained. According to the authors, the EEOC’s reversal marks a significant departure from its previous stance on protecting LGBTQ workers, as emphasized in its 2023 strategic plan, and is in tension with the Supreme Court’s decision in Bostock v. Clayton County that Title VII prohibits discrimination against gay and transgender employees.
  • Wall Street Journal, “Trump’s Employment Bias Fighter Has DEI in Her Crosshairs” (March 6): The Wall Street Journal’s Richard Vanderford reports that Andrea Lucas, the acting chair of the EEOC, intends to “take on the bias she sees in [DEI] programs.” Vanderford reports that Lucas stated in a recent interview that considering a worker’s race, ethnicity, or sex when offering opportunities is illegal, regardless of intent. He reports that Lucas also stated that employers should not assume “that they’re off the hook” for “discrimination in a past administration.” Vanderford writes that Lucas’s approach to DEI “could help accelerate a corporate flight from DEI already under way.” He notes, however, that Lucas said businesses need not move away from “merit-focused decision-making,” highlighting, for example, training or mentoring for first-generation college graduates done in a race-blind manner. Vanderford also reports that, under Lucas, the EEOC is “launching a crackdown on what it calls Anti-American bias in the workplace,” aiming to “protect American workers who might not be hired because of the perception that foreign-born workers have a better work ethic.”
  • Reuters, “US Retailers Publicly Scrap Some ‘DEI’ Initiatives While Quietly Supporting Others” (March 6): Nicholas P. Brown and Arriana McLymore from Reuters report that while many U.S. retailers have publicly discontinued DEI programs, several are maintaining certain DEI efforts. Brown and McLymore report on several companies that have informed advocacy groups that they will continue to support some LGBTQ+ and racial justice events, and to support resource groups for underrepresented employees. The article quotes Gibson Dunn’s Jason Schwartz, who says companies are “trying to thread the needle—stay true to corporate values, satisfy various stakeholders, but reduce legal risk.” Companies “are essentially picking their battles or trying to avoid battles altogether,” says Schwartz, who notes that the programs companies are most likely to retain are the ones tied to customer and employee relationships. Yet some stakeholders, the authors write, are not satisfied with these changes. Brown and McLymore report that Twin Cities Pride refused a sponsorship from Target “because the company would not specify how it would continue to support LGBTQ+ shoppers and employees.”
  • The Atlantic, “Colleges Have No Idea How to Comply With Trump’s Orders” (March 10): Rose Horowitch of The Atlantic reports that the Trump Administration’s guidance on DEI has sent universities into a state of “chaos.” She writes that schools’ “first challenge” is determining the meaning of “DEI,” and their second challenge is determining the scope of corrective action to take, if any. She notes that there has been a recent “flurry of nomenclature modifications,” with universities replacing “diversity, equity, and inclusion” and related terms on their websites with, for example, “equal access and equal opportunity” or “Inclusive Excellence,” in an effort to “try to get out of the target zone.” Indeed, Horowitch notes that the cost of getting caught in the administration’s crosshairs is high, citing the recent cancellation of $400 million in federal grants and contracts for Columbia University in connection with the school’s allegedly insufficient efforts to combat antisemitism. Additionally, Horowitch describes the situation faced by “public universities in red states,” which she notes have “little choice but to go beyond cosmetic changes” in response to local political pressure.
  • Newsweek, “Nearly Half of Companies Surveyed Say They Will Maintain DEI Effort in 2025” (March 14): Newsweek’s Aman Kidwai reports on a recent survey of corporate leaders, including general counsel, HR and diversity officers, by law firm Littler Mendelson P.C. that found that “49 percent of C-suite leaders are not considering new or further rollbacks of DEI programs after the Trump administration’s executive orders, and that only 8 percent are seriously considering changes.” Kidwai quotes a report on the study stating that “approximately three-quarters” of those surveyed said that “employee expectations for ongoing [DEI] commitments” played a role in their decision to continue their DEI initiatives, suggesting that DEI “remains an important talent retention and recruitment strategy for many employers even as the environment around those efforts becomes more hostile.” Kidwai also cites to a survey by Gravity Research, showing that while the percentage of Fortune 100 companies mentioning DEI in earnings calls dropped from 43% in 2023, to 31% in 2024, there was also a 59% rise in neutral, related terms such as “belonging” or “diverse perspectives,” indicating that these conversations may be continuing but in different terms.

Case Updates:

Below is a list of updates in new and pending cases:

1. Contracting claims under Section 1981, the U.S. Constitution, and other statutes:

  • American Alliance for Equal Rights v. Southwest Airlines Co., No. 24-cv-01209 (N.D. Tex. 2024): On May 20, 2024, American Alliance for Equal Rights (AAER) filed a complaint against Southwest Airlines, alleging that the company’s ¡Lánzate! Travel Award Program, which awards free flights to students who “identify direct or parental ties to a specific country” of Hispanic origin, unlawfully discriminates based on race. AAER seeks a declaratory judgment that the program violates Section 1981 and Title VI, a temporary restraining order barring Southwest from closing the next application period (set to open in March 2025), and a permanent injunction barring enforcement of the program’s ethnic eligibility criteria. On August 22, 2024, Southwest moved to dismiss, arguing that the case was moot because the company had signed a covenant with AAER that eliminated the challenged provisions from future program application cycles. On December 6, 2024, the court granted in part and denied in part Southwest’s motion to dismiss. The court concluded that Southwest’s covenant to eliminate the program rendered moot any claims for declaratory or injunctive relief. However, the court held that it had jurisdiction over the plaintiff’s claims for one cent in nominal damages and allowed those claims to proceed. The court rejected Southwest’s argument that Southwest mooted those claims through an “unsuccessful tender of one cent to [AAER].” On February 7, 2025, Southwest Airlines answered the complaint, denying allegations of discrimination.
    • Latest update: On March 3, 2025, AAER filed a motion for summary judgment, arguing that there was no genuine dispute of material fact on three relevant questions: (1) whether ¡Lánzate! involved contracts; (2) whether ¡Lánzate! intentionally discriminated against non-Hispanics; and (3) whether that ethnic discrimination harmed one of AAER’s members by preventing them from competing for ¡Lánzate! in 2024.

2. Employment discrimination and related claims:

  • Winter v. Jones, No. 4:25-cv-00299 (E.D. Mo. 2025): On March 10, 2025, a class action complaint was filed in federal district court in Missouri against Defendants Edward D. Jones & Co., The Jones Financial Companies, and EDJ Holding Company. The lawsuit alleges that the defendants employ a racially discriminatory compensation policy, in which financial advisors are paid extra if they transfer assets to “women and/or diverse” advisors rather than to heterosexual, white male advisors, which in turn affects the performance ratings of the transferor advisors. The lawsuit further alleges the defendants employ racially discriminatory criteria in their hiring, firing, and promotion practices, in which non-white financial advisors are favored over white advisors. The complaint requests injunctive relief enjoining the defendants’ alleged race-based employment policies.
    • Latest update: The docket reflects that the defendants have waived service of process. Their Rule 12 motion or answer is due May 10, 2025.
  • Martin v. Sedgwick Claims Management Services, Inc., No. 2:25-cv-02275 (W.D. Tenn. 2025): On March 11, 2025, a former employee of Sedgwick Claims Management Services, Inc., filed a complaint against the company alleging race discrimination and sexual harassment, as well as retaliation for complaints made regarding such discrimination. The plaintiff’s compliant asserts that he was subjected to a hostile work environment and discriminatory practices because he is Caucasian and heterosexual. In part, he alleges that Sedgwick’s DEI training materials were offensive and discriminatory towards white, heterosexual males. The plaintiff claims that after he complained about the discriminatory DEI content and sexual harassment by his supervisor, he faced retaliation, including being falsely accused of recording conversations with management, which led to his termination on March 25, 2024. He asserts that Sedgwick failed to conduct a meaningful investigation into his complaints and that his discharge was pretextual.
    • Latest update: Sedgwick was served on March 13, 2025. Its answer is due on April 4, 2025.
  • EEOC v. Battleground Restaurants, No. 1:24-cv-00792 (M.D.N.C. 2024): On September 25, 2024, the EEOC filed a lawsuit against a sports bar chain, Battleground Restaurants, in federal district court in North Carolina. The lawsuit alleges that the chain refused to hire men for its front-of-house positions, such as server or bartender jobs, in violation of Title VII. On November 25, 2024, Battleground Restaurants moved to dismiss or strike an improperly named defendant. Battleground Restaurants argued that the EEOC’s pattern or practice claims are “insufficiently pled, conclusory, and not plausible on their face,” and that the EEOC failed to conduct a “reasonable investigation” or give “adequate notice” to Battleground Restaurants. On February 24, 2025, the court denied the defendant’s motion to dismiss, finding the EEOC complied with notice requirements, plausibly alleged a pattern or practice of disparate sex discrimination, and can properly include Battleground Restaurants as a defendant.
    • Latest update: On March 10, 2024, the defendants answered the complaint, denying the large majority of the plaintiff’s allegations, and asserted numerous defenses, including that the plaintiff failed to identify any male applicant who was not hired for a front-of house position due to their sex, and that the defendants hired the best applicants without regard to their sex.
  • De Piero v. Pennsylvania State University, No. 2:23-cv-02281-WB (E.D. Pa. 2023): A white male professor sued his employer, Penn State University, claiming that university-mandated DEI trainings, discussions with coworkers and supervisors about race and privilege in the classroom, and comments from coworkers about his “white privilege” created a hostile work environment that led him to quit his job. He claimed that after he reported this alleged harassment and published an opinion piece objecting to the impact of DEI concepts in the classroom, the university retaliated against him by investigating him for bullying and aggressive behavior towards his colleagues. The plaintiff alleged harassment, retaliation, and constructive discharge in violation of Title VI, Title VII, Section 1981, Section 1983, the First Amendment, and Pennsylvania civil rights laws. On October 21, 2024, the defendants moved for summary judgment on the plaintiff’s hostile work environment claims. The defendants argue the plaintiff cannot show that he experienced discrimination based on his race because he was not required to attend any of the meetings about which he complains. Defendants also argue that the plaintiff cannot show respondeat superior liability for Penn State, and that his claim for punitive damages fails as a matter of law. On November 27, 2024, the plaintiff filed a response to the defendant’s motion for summary judgment arguing that the university “maintain[ed] a hostile environment based on pervasive racial dogma and race essentialism.” The plaintiff described various incidents that he claimed met the standard for “severe and pervasive harassment,” and also denied his voluntary participation in the events and discussions at issue provided defendants with an affirmative defense.
    • Latest update: On March 6, 2025, the court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s hostile work environment claims. The court found the “severe or pervasive” elements of the hostile work environment claim dispositive. In particular, the court found that the behaviors complained of by the plaintiff, including “campus wide emails” pertaining to racial injustice, “being invited to review scholarly materials,” and “conversations about harassment levied by and against [the plaintiff],” could not reasonably be found to rise to the level of severe harassment. As to the “pervasive” conduct prong, the court explained that of the 12 incidents in the complaint, no “racist comment” was directed at the plaintiff and “only a few” involved actions that were directed at the plaintiff at all. The court concluded that this pattern of behavior could not reasonably be found to rise to the level of “pervasive.”
  • Gerber v. Ohio Northern Univ., No. 2023-1107-CVH (Ohio. Ct. Common Pleas Hardin Cty. 2024): On June 30, 2023, a law professor sued his former employer, Ohio Northern University, for terminating his employment after an internal investigation determined that he bullied and harassed other faculty members. On January 23, 2024, the plaintiff, now represented by America First Legal, filed an amended complaint. The plaintiff claims that his firing was actually in retaliation for his vocal and public opposition to the university’s stated DEI principles and race-conscious hiring, which he believed were illegal. The plaintiff alleged that the investigation and his termination breached his employment contract, violated Ohio civil rights statutes, and constituted various torts, including defamation, false light, conversion, infliction of emotional distress, and wrongful termination in violation of public policy. On February 20, 2024, the defendants filed a motion for partial dismissal, arguing that the plaintiff’s termination was not against public policy because he was not an at-will employee, that all claims against university employees in their individual capacities should be dismissed, and that the plaintiff did not allege facts sufficient to support claims of breach, defamation, false light, or intentional infliction of emotional distress.
    • Latest update: On February 14, 2025, the plaintiff filed a motion for leave to move for partial summary judgment. The plaintiff argued there was no genuine dispute of material fact as to whether the university had breached his employment contract. On February 27, 2025, the court denied the defendant’s motion, finding that the “factual allegations are not so clear that [the d]efendants are entitled to individual dismissals.” On February 28, 2025, the court also denied the plaintiff’s motion for leave to seek partial summary judgment, finding the defendants were entitled to demonstrate there was “adequate cause” for terminating plaintiff’s employment.
  • Grande v. Hartford Board of Education et al., 3:24-cv-00010-JAM (D. Ct. 2024): On January 3, 2024, John Grande, a white male physical education teacher in the Hartford school district, filed suit against the Hartford School Board after allegedly being forced to attend mandatory DEI trainings. He claimed that he objected to the content of a mandatory professional development session focused on race and privilege, stating that he felt “white-shamed” after expressing his political disagreement with the training’s purposes and goals, and that he was thereafter subjected to a retaliatory investigation and was wrongfully threatened with termination. He claimed the school’s actions constitute retaliation and compelled speech in violation of the First Amendment. On February 5, 2025, the defendants filed a motion for summary judgment, arguing that the plaintiff’s objections to the trainings were made in the course of his official duties as a District employee and therefore were not protected by the First Amendment. They further argued that the District’s interest in effectively administering its professional development sessions outweighed the plaintiff’s speech interests.
    • Latest update: On March 5, 2025, the plaintiff filed an opposition to the defendant’s motion for summary judgment. The plaintiff argued that summary judgment is improper because material facts, such as whether the plaintiff was speaking as a private citizen about a matter of public concern and the nature of plaintiff’s statements, are in dispute. The plaintiff also argued that he sufficiently pled a First Amendment retaliation claim against the defendants.

3. Challenges to statutes, agency rules, and regulatory decisions:

  • Moe et al. v. Yost et al., No. 24AP-483 (Ohio App. Ct. Mar. 18, 2025): In March 2024, families of minor transgender adolescents in Ohio filed suit to challenge House Bill 68, which had banned gender-affirming pharmaceutical medical care for transgender adolescents. The state trial court found the law constitutional.
    • Latest update: On March 18, 2025, the Ohio Tenth District Court of Appeals reversed, holding that the ban on gender affirming care violated the “constitutional freedom to choose health care” under the state’s Health Care Freedom Amendment, and that the law violated the “fundamental right” of parents “to seek medical care for their children.”
  • Chicago Women in Trades v. President Donald J. Trump, et al., No. 1:25-cv-02005 (N.D. Ill. 2025): On February 26, 2025, Chicago Women in Trades (CWIT), a non-profit organization, sued President Trump, challenging EO 14151 and EO 14173. CWIT alleges that, because of the orders, its federal grant funding was frozen and although the funding was restored following a temporary restraining order issued in another proceeding, “CWIT’s grants remain under threat of termination.” CWIT claims that these EOs violate principles of separation of powers, the First and Fifth Amendments, and the Spending Clause of the U.S. Constitution.
    • Latest update: On March 5, 2025, CWIT filed a motion for preliminary injunction to enjoin the defendants from enforcing and carrying out EOs 14151 and 14173. CWIT argues that the EOs violate the First and Fifth Amendments, Separation of Powers, and the Spending Clause.
  • National Association of Diversity Officers in Higher Education, et al., v. Donald J. Trump, et al., 25-cv-333 (D. Md. 2025): On February 3, the Mayor and City Council of Baltimore, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and the Restaurant Opportunities Centers United filed a complaint in the District of Maryland challenging two recent DEI-related EOs. The complaint raises six constitutional claims, including claims alleging that the orders violate the First Amendment, Fourteenth Amendment, Spending Clause, and separation of powers. The complaint sought a declaratory judgment that EO 14151 and EO 14173 are unconstitutional, as well as a preliminary injunction enjoining enforcement of these executive orders. On February 13, the plaintiffs filed a motion for a temporary restraining order, or, in the alternative, a preliminary injunction. On February 21, the district court preliminarily enjoined enforcement of key aspects of the orders.
    • Latest update: On March 10, 2025, the district court clarified that the injunction applies to all federal agencies. On March 14, 2024, a panel of the U.S. Court of Appeals for the Fourth Circuit temporarily stayed the preliminary injunction. Please see the Key Development summary above for additional detail.
  • Young Americans for Freedom et al. v. U.S. Department of Education et al., No. 3:24-cv-00163-PDW-ARS (D.N.D. 2024): On August 27, 2024, the University of North Dakota Chapter of Young Americans for Freedom (YAF) sued the U.S. Department of Education (DOE) over its McNair Post-Baccalaureate Achievement Program, a research and graduate studies grant program that supports incoming graduate students who are either low-income, first-generation college students or “member[s] of a group that is underrepresented in graduate education.” YAF alleges that the McNair program violates the Equal Protection Clause by restricting admission based on race. YAF requests, among other things, a preliminary injunction enjoining the DOE from enforcing all race-based qualifications for the McNair program. On September 4, 2024, YAF filed a motion for preliminary injunction, requesting that the court prevent the DOE from enforcing the racial and ethnic qualifications of the McNair program, and requiring the DOE to notify all participating institutions of higher education that they cannot impose or rely upon such classifications. On December 31, 2024, the court denied the plaintiff’s preliminary injunction motion and dismissed the case without prejudice for lack of subject matter jurisdiction, ruling that there was no Article III standing because the McNair Program is not exclusively administered by the Department of Education. On January 24, 2025, the plaintiffs filed a motion to alter or amend the judgment arguing that the court should have allowed the plaintiffs to amend their complaint instead of dismissing the case outright.
    • Latest update: On March 10, 2025, the Department of Education filed an opposition to the plaintiffs’ motion for reconsideration, arguing that the plaintiffs’ motion should be denied because they failed to identify “manifest error of fact or law” in the court’s decision or demonstrate exceptional circumstances warranting relief.
  • Nat’l Urban League et al., v. President Donald J. Trump, et al., No. 1:25-cv-00471 (D.D.C. 2025): On February 19, 2025, the National Urban League, National Fair Housing Alliance, and AIDS Foundation of Chicago sued President Donald Trump challenging EO 14151, EO 14168, EO 14173, and related agency actions, as ultra vires and in violation of the First and Fifth Amendments and the Administrative Procedure Act. The plaintiffs allege that these orders penalize them for expressing viewpoints in support of diversity, equity, inclusion, and accessibility, and transgender people. They also claim that, because of these orders, they are at risk of losing federal funding. The complaint seeks a declaratory judgment holding that the EOs at issue are unconstitutional, as well as a preliminary injunction enjoining enforcement of these EOs. On February 28, the plaintiffs filed a motion for a preliminary injunction.
    • Latest update: On March 5, 2025, Do No Harm, a non-profit organization, filed a motion to intervene as defendant, arguing that the plaintiffs’ challenge to the EOs directly threatens their mission of “ensuring that medicine is driven by scientific evidence rather than ideology and that professional opportunities are allocated based on merit” and its ability to protect its members from discrimination and other harms. On March 10, the plaintiffs filed their opposition to Do No Harm’s motion to intervene, arguing that Do No Harm lacks a legally protected interest in the case, lacks Article III standing, and has failed to rebut the presumption that the defendants adequately represent its interests. On March 12, 2025, the court denied Do Not Harm’s motion to intervene without prejudice. The court found that Do Not Harm may not intervene as a matter of right, as it has not shown that the government will inadequately represent Do Not Harm’s interests. On March 17, 2025, the plaintiffs filed a reply in support of their motion for a preliminary injunction, arguing their claims meet standing requirements. The plaintiffs claim they are likely to succeed on the merits of their Fifth Amendment claim because the defendants have failed to explain numerous key terms that form the basis for plaintiffs’ vagueness challenge. The plaintiffs further claim they are likely to succeed on the merits of their First Amendment claim because the EOs allegedly have seven provisions that violate the First Amendment.
  • State of California et al. v. U.S. Department of Education et al., No. 1:25-cv-10548 (D. Mass. 2025): On March 6, 2025, the states of California, Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York, and Wisconsin (collectively, “the plaintiff states”) sued the U.S. Department of Education, alleging that it “arbitrarily” terminated previously awarded grants authorized by Congress under the Teacher Quality Partnership (TQP) and Supporting Effective Educator Development (SEED) programs. The plaintiff States argue that the termination of the grants violates the Administrative Procedure Act (APA) and seek declaratory and injunctive relief to vacate and set aside the termination of all previously awarded grants under the TQP and SEED programs.
    • Latest update: On March 6, the plaintiff States filed a motion for a temporary restraining order to enjoin the defendants from “implementing, giving effect to, maintaining, or reinstating under a different name the termination of any previously-awarded TQP and SEED grants.” The plaintiff States argued that the “abrupt and immediate” termination of the programs threatens “imminent and irreparable” harm. The motion highlighted the programs’ purpose to address a critical shortage of highly qualified and licensed K-12 teachers. The court granted the plaintiff States’ TRO request on March 10, 2025, finding that plaintiff States are likely to succeed on the merits of their claims that terminating the programs was arbitrary and capricious and adequately demonstrated that they would be irreparably harmed if temporary relief were not granted, and that the balance of the equities weighs heavily in favor of granting the TRO. The TRO requires the Department of Education to immediately restore the grants to the pre-existing status quo and enjoins it from implementing, maintaining, or reinstating the terminations. On March 17, 2025, the defendants filed a memorandum in opposition to the plaintiffs’ motion for a preliminary injunction, arguing that plaintiffs have not shown they are likely to succeed on the merits nor have they suffered any irreparable harm. The defendants claim they would be the ones suffering irreparable harm if the plaintiffs’ preliminary injunction is granted because government funds would be spent that cannot be recouped. The defendants also claim the court lacks jurisdiction to review the Department of Education’s decisions on how to allocate funds because the APA does not permit judicial review of “agency action” that “is committed to agency discretion by law.”

4. Title VI Discrimination:

  • Do No Harm v. American Chemical Society, No. 1:25-cv-0638 (D.D.C. 2025): On March 5, 2025, Do No Harm filed a suit against The American Chemical Society (ACS) in the U.S. District Court for the District of Columbia. The complaint alleges that ACS operates a program for Black, Hispanic, and indigenous applicants (“the ACS Scholars Program”) that excludes white and Asian applicants, thereby violating federal anti-discrimination laws. Do No Harm argues that the program’s racial criteria are not narrowly tailored to serve a compelling interest and that the ACS, as a recipient of federal financial assistance, is subject to Title VI’s prohibition against racial discrimination. Do No Harm seeks declaratory and injunctive relief, as well as nominal damages.
    • Latest update: The docket does not yet reflect that the defendant has been served.

Legislative Updates:

On February 21, seven Republican members of the West Virginia House introduced House Bill 2795, which would withhold state funds from private entities that contravene “substantial public policies” of the state. The law would penalize a wide range of activities, including “[p]roviding any form of funds, financial aid, or benefits to an employee seeking to obtain an abortion” or gender-reassignment surgery; offering, requiring, hosting, or allowing trainings where any representative “states that there are more than two genders”; permitting “biological men to enter into any women’s restroom in a facility leased or owned by the private entity”; and, similarly, permitting “biological women to enter into any men’s restroom.” Related to DEI, the bill would withhold funds from private entities “[o]ffering, requiring, hosting, conducting, or allowing any [DEI] training session, class, program, seminar, speech, presentation, or similar meeting” or a training where a representative “makes a negative statement about a particular race, ethnicity, color, ancestry, or nationality”; considering race in employment decisions; requiring employees to engage in DEI programs; employing individuals “whose duties include” DEI programming; having policies designed to “influence the composition of its workforce” or any other policy implemented “on the basis of race, sex, ancestry, color, or national origin, except as required by federal law”; and from taking adverse actions based on an “employee’s political, social, or religious beliefs.” The law would withhold funds from any entity that promotes theories of “unconscious or implicit bias, cultural appropriation, allyship, transgenderism, microaggressions, microinvalidation, group marginalization, systemic oppression, structural racism or inequity, social justice, intersectionality, neopronouns, inclusive language, heteronormativity, gender identity or theory, privileged status based on race, color, ancestry, ethnicity, national origin, or sex.” The bill provides that the state Attorney General may enforce these limitations and directs the Attorney General to set up an anonymous whistleblower system. It also provides a private right of action to employees required to participate in any prohibited activity.

On February 20, Representative Don McLaughlin (R) of the Texas House of Representatives introduced House Bill 3075, which would withhold state funding from public and private entities engaged in “restricted ideological programs.” A “restricted ideological programs” is one that “supports, promotes, or is aligned with” any of the following: “initiatives, theories or policies that seek to alter social institutions through identity-based conflict”; advocacy related to “redistribution of resources based on perceived societal inequalities”; equity initiatives seeking “equal outcomes rather than equal opportunities based on demographic factors”; “nonbiological” definitions of gender and “policies supporting gender transition”; assertions that “gender identity is independent of biological sex”; theories assigning “privilege, oppression, or identity based primary on racial categorization”; and policies that prioritize “demographic representation over merit-based evaluation.” The bill provides for a civil penalty “not to exceed the amount of state money that the entity has received” if an entity “knowingly misrepresents” its activities to receive state funds. The bill also establishes a State Funding Integrity Review Division, which it directs to review all state-funded grants, contracts, and awards and to develop a “vetting process.” The bill does not apply retroactively to contracts entered into or renewed before the law’s effective date.

The following Gibson Dunn attorneys assisted in preparing this client update: Jason Schwartz, Mylan Denerstein, Zakiyyah Salim-Williams, Cynthia Chen McTernan, Zoë Klein, Cate McCaffrey, José Madrid, Jenna Voronov, Emma Eisendrath, Kristen Durkan, Simon Moskovitz, Teddy Okechukwu, Beshoy Shokralla, Heather Skrabak, Maryum Asenuga, Angelle Henderson, Janice Jiang, Kameron Mitchell, Lauren Meyer, Chelsea Clayton, Maya Jeyendran, Albert Le, Allonna Nordhavn, Felicia Reyes, Godard Solomon, Laura Wang, and Ashley Wilson.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following practice leaders and authors:

Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group
Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com)

Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group
Los Angeles (+1 213-229-7107, ksmith@gibsondunn.com)

Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group
New York (+1 212-351-3850, mdenerstein@gibsondunn.com)

Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer
Washington, D.C. (+1 202-955-8503, zswilliams@gibsondunn.com)

Molly T. Senger – Partner, Labor & Employment Group
Washington, D.C. (+1 202-955-8571, msenger@gibsondunn.com)

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