OPM Memorandum Provides First Glimpse of How Agencies will Enforce Trump’s DEI Directives
Diversity | February 12, 2025
Gibson Dunn’s DEI Task Force is available to help clients understand what these and other expected policy changes will mean for them and how to comply with new requirements.
On February 5, 2025, the United States Office of Personnel Management (OPM) issued a memo to the heads and acting heads of federal departments and agencies entitled Further Guidance Regarding Ending DEIA Offices, Programs and Initiatives. The memo provides additional guidance on how federal agencies should implement President Trump’s executive orders, including Executive Order 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”), Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), and Executive Order 14148 (“Initial Rescissions of Harmful Executive Orders and Actions”). While the memo is directed at implementation of the executive orders within the federal government, it provides insight into how the administration is likely to view certain types of DEI programs and how it will interpret similar programs in the private sector.
In alignment with the President’s executive orders, the OPM memo directs agencies to “terminate all illegal DEIA initiatives,” including by eliminating any DEIA “offices, policies, programs, and practices” that unlawfully discriminate in any employment action, including “recruiting, interviewing, hiring, training or other professional development, internships, fellowships, promotion, retention, discipline, and separation.” According to OPM, unlawful discrimination includes “taking action motivated, in whole or in part” by protected characteristics. The memo specifically identifies “diverse slate” policies—which it describes as “unlawful diversity requirements for the composition of hiring panels, as well as for the composition of candidate pools”—as an example of “[u]nlawful discrimination related to DEI.”
OPM does not require elimination of “personnel, offices, and procedures” that receive complaints of discrimination, counsel employees who have allegedly been subject to discrimination, collect demographic data, or process employee accommodation requests. To the extent these functions were previously handled by DEIA personnel, the memo instructs agencies to redistribute these functions among remaining agency personnel and offices. However, the memo warns that agencies must ensure that these functions are “strictly limited to the duties within [the agency’s] statutory authority[.]”
The memo also addresses Employee Resource Groups (ERGs), instructing agencies to prohibit ERGs that “promote unlawful DEIA initiatives.” Although the memo expressly states that agency heads “retain discretion” to “host affinity group lunches, engage in mentorship programs, and otherwise gather for social and cultural events,” it directs that these activities or programs must be consistent with President Trump’s executive orders and the “broader goal of creating a federal workplace focused on individual merit.” Specifically, the memo emphasizes that no affinity group or cultural or social gathering may be restricted, either “explicitly or functionally,” on the basis of a protected characteristic, and that agency heads may not “draw distinctions” based on protected characteristics. For example, OPM says that an agency may not permit the formation of ERGs for certain racial groups but not for others and may not limit attendance to an affinity group event to only members of that ethnic group.
The memo also addresses disability accessibility and accommodations, stating that the Biden Administration “conflated” DEI initiatives with legal obligations related to disability and accessibility. While the memo says that President Trump’s executive orders “require the elimination of discriminatory practices” and calls on agencies to rescind policies that are “contrary” to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, it states that agencies should not “terminate or prohibit accessibility or disability-related accommodations, assistance, or other programs that are required by” law.
OPM also says that agencies should eliminate Special Emphasis Programs that “promote DEIA based on protected characteristics in any employment action or other term, condition, or privilege of employment, including but not limited to recruiting, interviewing, hiring, training or other professional development, internships, fellowships, promotion, retention, discipline, and separation.” Special Emphasis Programs are employment-related programs in federal agencies that focus special attention on certain groups that are underrepresented in specific occupational categories or grade levels within the agency’s workforce. In lieu of these programs, the memo directs agencies to work to “restore merit-based equal employment opportunity” and “reward[] individual excellence.”
Finally, OPM states the President’s authority to promulgate these policies comes from the Constitution and, therefore, agencies should “adhere to the President’s orders” to “eliminate all unlawful discrimination in the federal workforce,” rather than heeding “non-binding opinions and guidance promoting DEIA” and similar policy efforts. The President’s authority over the federal workforce differs from the legal authority the Administration has over private sector employers and other non-federal workplaces. As noted, however, the OPM Memo is indicative of programs and practices the Administration may view as violating Title VII and other laws that apply outside the federal sector.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s DEI Task Force, Labor and Employment practice groups, or the following authors and practice leaders:
Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group,
Washington, D.C. (+1 202.955.8242, [email protected])
Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group,
Los Angeles (+1 213.229.7107, [email protected])
Stuart F. Delery – Partner & Co-Chair, Administrative Law & Regulatory Practice Group,
Washington, D.C. (+1 202.955.8515, [email protected])
Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group,
New York (+1 212.351.3850, [email protected])
Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer,
Washington, D.C. (+1 202.955.8503, [email protected])
Molly T. Senger – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.955.8571, [email protected])
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