Category: Diversity, Equity, and Inclusion (“DEI”)

ABA Section of Public Contract Law’s Roundtable on Impact of New Administration on Government Contracting

February 26, 2025
2:00–4:00 p.m.
McLean, Virginia

Jennifer A. Short headshot image

Blank Rome partner Jennifer Short will serve as a panelist at the American Bar Association (“ABA”) Section of Public Contract Law’s “Roundtable on Impact of New Administration on Government Contracting,” taking place in McLean, Virginia, on Wednesday, February 26, 2025, from 2:00 to 4:00 p.m., with a light reception to follow. A virtual participation option will be available.

ABOUT THE PROGRAM

The panel will discuss the impact of the new administration on government contracting, including the President’s Executive Orders regarding DEI and how to respond to them; stop works, terminations, and other contract actions and what contractors can be doing in light of them; and the legal issues surrounding a decision by the Executive Office not to spend appropriated funds.

Panelists:

  • Facilitator: Jeff Chiow, Greenberg Traurig LLP
  • Jayna Marie Rust, Thompson Coburn LLP
  • Jennifer Short, Blank Rome LLP

For more information, please visit the registration page.

Preliminary Injunction Granted Related to DEI-Related Executive Orders—Takeaways for Government Contractors

Dominique L. Casimir ●

In the four weeks since President Trump issued Executive Order (“EO”) 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), virtually all sectors of American society have been scrambling to understand their compliance obligations and seeking to reduce legal risk. Businesses have taken a range of approaches, from preparing to defend their diversity, equity, and inclusion (“DEI”) commitments to removing public-facing references to DEI. Some government contractors have received DEI-related certifications required by EO 14173, which implicate enforcement under the False Claims Act (“FCA”).

In a significant new development, on February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction against both EO 14151 and EO 14173. Here’s what federal contractors need to know.

Continue reading “Preliminary Injunction Granted Related to DEI-Related Executive Orders—Takeaways for Government Contractors”

What GSA Contractors Need to Know About the New FAR Deviation for Revoked Executive Order 11246, Equal Employment Opportunity

Dominique L. Casimir and Amanda C. DeLaPerriere ●

On February 18, 2025, the General Services Administration (“GSA”) announced that it issued GSA Class Deviation CD-2025-04 (“the GSA Class Deviation”) effective February 15, 2025, to implement Executive Order (“EO”) 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which, as Blank Rome has previously written about here and here, revoked the landmark 60-year-old EO 11246 titled “Equal Employment Opportunity.”

Continue reading “What GSA Contractors Need to Know About the New FAR Deviation for Revoked Executive Order 11246, Equal Employment Opportunity”

Webinar: Navigating the Impact of President Trump’s Executive Orders on DEI Initiatives

Blank Rome-Hosted Live Webinar
February 19, 2025
1:00–2:00 p.m. EST | 10:00–11:00 a.m. PST


Within days of the new administration taking office, there have been tectonic shifts in the employment law and government contracts landscape affecting all employers, large and small, across every industry and every sector of the economy.

The Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” has implications for any company that has adopted a formal diversity, equity, and inclusion (“DEI”) policy and puts companies on notice that the new administration considers DEI policies and programs to be “illegal” if they have the effect of reverse discrimination under federal anti-discrimination laws. The Executive Order requires the heads of all federal agencies to submit a plan outlining specific measures to deter illegal discrimination or preferences. Additionally, each agency must identify up to nine major corporations or institutions for compliance investigations on DEI violations and the Attorney General has been tasked with developing strategies to deter “illegal discrimination and preferences, including DEI,” in the broader private sector. This plan will be presented in 120 days.

The Executive Order also has drastic implications for federal contractors. It revokes Executive Order 11246, which for 60 years has required federal contractors adopt affirmative action plans. The Executive Order gives federal contractors until April 21, 2025, to end their compliance with Executive Order 11246. All federal contractors will now be expected to certify that they “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” in all contracts with federal agencies.

In addition to this Executive Order, other directives on gender and DEI efforts and civil and criminal enforcement across the private and public sector carry both direct and indirect implications for companies. This landscape is evolving rapidly, influenced by guidance from new agency heads—including the Department of Justice—as well as emerging state-level pressures. Special guest speaker Lisa R. Davis, Senior Managing Director and Co-Lead, DEI Advisory at Teneo, will join Dominique, Anthony, and Brooke to explore the intricate implications of these Executive Orders and offer actionable insights for navigating and communicating changes effectively.

Blank Rome partners Dominique L. Casimir, Anthony B. Haller, and Brooke T. Iley, along with Lisa R. Davis, Senior Managing Director and Co-Lead, DEI Advisory at global CEO consulting and advisory firm Teneo, will serve as speakers for the 60-minute, Blank Rome-hosted live webinar, “Navigating the Impact of President Trump’s Executive Orders on DEI Initiatives,” taking place on Wednesday, February 19, 2025, from 1:00 to 2:00 p.m. EST / 10:00 to 11:00 a.m. PST.

For more information and to register, please visit our website: Navigating the Impact of President Trump’s Executive Orders on DEI Initiatives.

What Contractors Facing Terminations, Stop-Work Orders, and Suspension of Work Orders Directed by the Trump Administration Need to Know

Stephanie M. Harden, Jennifer A. Short, Justin A. Chiarodo, Shane M. Hannon, and Amanda C. DeLaPerriere ●

The Trump administration’s directives to “pause” grant funding and to terminate certain grants and contracts sent shock waves through the government contracts and non-profit sectors. Although the “pause” in grant funding has been temporarily halted by a federal court (as of January 28), other terminations and suspensions have not been blocked. We summarize below the steps entities can take to preserve their rights as they navigate these emerging directives.

But First: What Happened? 

Immediately after his inauguration on January 20, President Trump began ordering federal agencies to pause funding for certain projects or initiatives. A January 20 Executive Order (“EO”) titled “Unleashing American Energy” encouraged energy exploration and production and eliminated electric vehicle mandates. It directed agencies to “immediately pause” all disbursements under the Inflation Reduction Act of 2022 and the Infrastructure Investment and Jobs Act.

Another EO titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” directed the Office of Management and Budget to terminate DEI programs (see our prior analysis of this EO here). Consequently, the new Department of Government Efficiency announced on January 24 that approximately $420 million in current or impending contracts, most of which related to DEI programs, were cancelled.

Consistent with these orders, the Office of Management and Budget (“OMB”) on January 27 directed federal agencies to pause, as of January 28 at 5:00 PM ET, all payments and obligations to disburse any federal financial assistance, including financial assistance for nongovernmental organizations. The two-page OMB policy memo stated that the paused programs will be assessed to determine whether they are consistent with the administration’s new policy objectives. This directive has led to widespread chaos, prompting the administration to issue additional guidance on January 28 regarding the scope and purpose of the January 27 funding freeze. The freeze on grant funding was then temporarily halted by a federal district court later in the day.

Federal contractors performing contracts or projects subject to these EOs or OMB instructions have or likely will soon receive stop work orders or, in some cases, notices that the government is terminating for convenience. A “suspension of work” or “stop-work” order pauses performance for a period of time, after which the government may decide either to resume performance or terminate the contract. A notice of termination for convenience, as its name suggests, is the mechanism by which the government unilaterally terminates the contract as of right.

Continue reading “What Contractors Facing Terminations, Stop-Work Orders, and Suspension of Work Orders Directed by the Trump Administration Need to Know”

Understanding President Trump’s Executive Orders on DEI: Implications for Federal Contractors

Dominique L. Casimir ●

On January 21, 2025, President Trump signed two Executive Orders (“EOs”) taking aim at diversity, equity, and inclusion (“DEI”) within federal agencies and the federal contractor workforce: Ending Illegal Discrimination And Restoring Merit-Based Opportunity and Ending Radical and Wasteful Government DEI Programs and Preferencing. Accordingly, federal contractors must now re-familiarize themselves with the Trump administration’s view on workplace DEI initiatives. These EOs represent a sharp contrast in the new administration’s expectations regarding workplace DEI compared to the Biden administration.

The Trump administration regards DEI initiatives as suspect based on the belief that these initiatives involve lowering applicable professional standards and discrimination against those viewed as capable of advancing based on merit. As the president articulated in the EO titled “Ending Illegal Discrimination and Restoring Merit Based Opportunity,” DEI is “a pernicious identity-based spoils system.” President Trump stated in his inaugural address that he intends to “forge a society that is colorblind and merit-based.” In furtherance of this objective, the president revoked EO 11246, which for more than six decades has prohibited federal contractors from making employment decisions on the basis of race, color, religion, sex, or national origin. While racial discrimination in hiring remains illegal under the Title VII of the Civil Rights Act of 1964, the Trump administration also ordered the Civil Rights Division of the Department of Justice to immediately freeze much of its activity, including not pursuing any new discrimination cases.

What Do Contractors Need to Know About President Trump’s EO “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”?

In this second presidential term, the Trump administration demonstrates greater awareness and sophistication in leveraging existing legal frameworks to enforce its view of DEI initiatives and principles. Accordingly, contractors should expect heightened government scrutiny and legal challenges as the Trump administration seeks to demonstrate its ability to force contractors to align with its viewpoint that explicit efforts to achieve workplace diversity constitute unacceptable racial discrimination.    

  1. Agreement Regarding to Materiality Under the False Claims Act: One of the biggest takeaways for federal contractors is that this EO requires the head of each agency to include a contract term in which the contractor agrees that its “compliance in all respects with all applicable Federal anti-discrimination laws” is material to the government’s payment decisions for purposes of the False Claims Act (“FCA”) (section 3729(b)(4) of title 31).
  2. Certification:  The EO also requires an award recipient to certify that it does not operate any programs “promoting DEI that violate any applicable Federal anti-discrimination laws.” This certification, if viewed as false by the Trump administration’s Justice Department, could become the basis for an allegation of an FCA violation.
  3. Expected Government Investigations: The EO directs the Attorney General to identify “up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over one billion dollars.” This demonstrates the Trump administration’s willingness to invest government resources into challenging the DEI programs of large organizations.
  4. Expected Litigation: The EO directs the Attorney General to report on ways in which the private sector can be encouraged “to end illegal DEI discrimination and preferences and comply with all federal civil-rights laws” and to identify opportunities for the Trump administration to engage in lawsuits.

What Do Contractors Need to Know About President Trump’s EO “Ending Radical and Wasteful Government DEI Programs and Preferencing”?

While this executive order is directed to federal agencies, it demonstrates the sweeping nature of the Trump administration’s efforts to eradicate DEI principles from the workplace.

  1. Termination of DEI Programs: The EO mandates the termination of all DEI programs within federal agencies. This includes any initiatives, training, or policies that are specifically designed to promote DEI within the federal workforce, which the EO describes as “radical and wasteful.” Relatedly, the Trump administration issued a memo directing all federal agencies to place any DEI professionals within their ranks on paid leave as of January 22, 2025. The Trump administration also provided agency heads with a directive warning of “adverse consequences” for anyone who fails to report any of their colleagues (to a specified email address created for this this purpose) who try to circumvent orders to immediately cease DEI-related activities.   
  2. Prohibition of Preferences Based on Identity: Consistent with EO 11246 (which the president revoked), the new Trump EO explicitly prohibits federal agencies from giving preferential treatment to individuals based on race, color, religion, sex, or national origin in hiring, promotion, or any other employment decisions.
  3. Review and Rescission of Existing Policies: Federal agencies are required to conduct a comprehensive review of their existing policies, programs, and practices to identify any that are inconsistent with the new directive. Any policies or programs that are found to be in violation of the order must be rescinded or modified to comply with the new guidelines. This includes reviewing training materials, hiring practices, and any other initiatives that may have been implemented to promote DEI within the agency.

What Should Contractors Do to Comply with the New EOs?

  1. Contractors should conduct a privileged review of their existing DEI programs to identify any potentially problematic features such as race- or gender-based quotas, or to consider adding a mission statement to clarify that the contractor’s diversity efforts seek to identify and cultivate all existing talent and do not have the effect of lowering any applicable standards or commitment to excellence.
  2. Contractors should also consider a privileged review of their documented merit-based criteria for hiring, promotions, and other employment actions. This may involve updating job descriptions, performance evaluation processes, and training programs to focus on skills, experience, and performance.
  3. Contractors should consider developing consistent guidance for employees, as they may have questions about the organization’s continued commitment to diversity and inclusion, and whether such a commitment is lawful, or where to go if they have concerns.

We will continue to closely monitor the implementation of these executive orders and will report on any new developments.

Conflicting State and Federal Requirements for Government Contractors . . . Again

Merle M. DeLancey, Jr. ●

In 2021, federal government prime contractors and subcontractors found themselves in a difficult situation with respect to COVID vaccination requirements. More than a dozen states enacted laws prohibiting companies from requiring their employees to be COVID-19 vaccinated or even show proof of COVID-19 vaccination as a condition of employment. At the same time, federal government contracts were subject to mandatory employee vaccination requirements in the FAR and DFARS. (i.e., FAR 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (DEVIATION) and DFARS 252.223-7999 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009) (OCT 2021). Luckily, the potential conflict was resolved, on May 9, 2023, when President Biden signed Executive Order (“EO”) 14099, Moving Beyond COVID–19 Vaccination Requirements for Federal Workers, which revoked EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. EO 14099 directed agencies to rescind any policies that were adopted to implement EO 14042. Thus, the potential conflict between inconsistent federal and state laws concerning COVID-19 vaccinations was mooted.

A new conflict between state and federal procurement requirements may be brewing for federal prime contractors and subcontractors concerning race-based employment preferences and diversity policies after the Supreme Court decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC.

Continue reading “Conflicting State and Federal Requirements for Government Contractors . . . Again”

Blank Rome’s Black History Month D.C. Easel Project—and a Surprising Connection between the Defense Industry and the 1963 March on Washington

Justin A. Chiarodo and Robyn N. Burrows ●

In honor of Black History Month, we wanted to highlight one of the most impactful traditions in our Washington, D.C., office: the Black History Month D.C. Easel Project, in which Blank Rome attorneys, staff, and clients work together to create easels depicting notable historic events and figures from D.C.’s rich African American history. Thanks to the leadership and innovation of our partner Saminaz Akhter, the Easel Project has deepened our awareness and appreciation of the significant contributions Black people have made in our Nation’s Capital (you can learn more about the program in this video).

The theme for last year’s easels was civil demonstrations and protests, including the 1919 Red Summer riot, the 1939 Marian Anderson concert at the Lincoln Memorial, the 1958/59 Youth March for Integrated Schools, the 2020 George Floyd protests, and the 1963 March on Washington for Jobs and Freedom. Our research on the origins of the 1963 March on Washington revealed a surprising connection to the defense industry that we wanted to spotlight for our “Sustained Action” readership.

The seeds for the March on Washington were sown decades earlier, when A. Phillip Randolph (head of the Brotherhood of Sleeping Car Porters and an early leader of the civil rights movement) proposed a mass march on Washington, D.C., to highlight segregation and discrimination in the U.S. Armed Forces and the defense industry.

Continue reading “Blank Rome’s Black History Month D.C. Easel Project—and a Surprising Connection between the Defense Industry and the 1963 March on Washington”

Amplifying Our Clarion Call

Justin A. Chiarodo, Dominique L. Casimir, and Krystal Studavent Ramsey  ●

We are thrilled to kick off our new Government Contracts Navigator blog series, “Sustained Action: DEI in Government Contracting,” which shines a light on diversity, equity, and inclusion initiatives and progress in the government contracts industry and at Blank Rome. As we wrote back in 2020, working to promote diversity, equity, and inclusion is not a one-time exercise but a practice—one to which we are committed for the long run.

We approach this effort fully embracing that we bring our own backgrounds, journeys, and perspectives to a complicated area, and that fostering an environment of mutual respect and the free exchange of ideas is critical to promoting the understanding of different viewpoints and implementing solutions that make a difference.

“Sustained Action” is our next step in this journey. This post focuses on our recent participation in the American Bar Association Public Contract Law Section’s (“ABA PCL”) 10 Day Tune Up, and other initiatives we are driving at Blank Rome in 2023. The 10 Day Tune Up was a follow-up program to the successful 2020 program that we wrote about previously, the 21-Day Racial Equity Habit-Building Challenge© (“21-Day Challenge”).

Continue reading “Amplifying Our Clarion Call”
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