President Donald Trump issued Executive Order No. 14151, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and Executive Order No. 14173, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” (collectively, the “Orders”), shortly after taking office. However, a District Court in Maryland enjoined certain aspects of these Orders. The Trump administration appealed the District Court’s decision, and on March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit granted the administration’s request for a stay (i.e., a pause) of the injunction, pending the outcome of the appeal. As a result, during the appeal, the Orders remain in full force and effect.
Many articles emphasize the importance of employers evaluating whether their actions, policies, and procedures may be in violation of these Orders.
Given the fluctuating decisions surrounding the Orders, some employers may wonder whether an employee is protected from retaliation if they report believing their employer is violating one of the Orders, but that Order is later struck down. Employers might be surprised to learn that if an employee reasonably believes their employer’s actions violate a legal provision (in this case, the Orders), they may be protected, even if the Orders are eventually revoked or overturned.
Whistleblower Protections and Potential Activity Related to the DEI Executive Orders
What constitutes protected activity in relation to these Orders? Potential whistleblowing activities might include:
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An employee reports that their employer is continuing DEI programs, trainings, or initiatives they believe violate the Orders, which prohibit race- or gender-based preferences.
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An employee reports that their employer or someone within the organization is prioritizing hiring, promotions, or contract decisions based on race, gender, or other DEI-related criteria.
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An employee reports that they are being required to participate in DEI training, which they claim promotes race- or gender-based biases in violation of the Orders.
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Employees working for federal contractors may report that their employer is not complying with the DEI restrictions outlined in government-funded projects or is inaccurately certifying compliance with DEI-related contract terms.
How Should Employers Respond to Whistleblowing?
When an employee reports a concern or engages in whistleblowing activities, employers should carefully assess and respond to the allegations. Steps an employer should consider include:
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Evaluating the complexity and seriousness of the employee’s complaint and, if appropriate, conducting an investigation under attorney-client privilege or with an external investigator alongside human resources.
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Documenting findings and the actions taken.
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Maintaining open communication with the employee throughout the process.
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Informing the employee when the investigation concludes and sharing appropriate information, while considering the privacy of other employees and privilege concerns.
A well-handled response not only addresses and potentially resolves immediate concerns but also demonstrates the company’s commitment to compliance and transparency, which can help reduce legal exposure.
Given the current rapidly changing circumstances, now may be an opportune time for employers to review their complaint reporting procedures. An effective internal reporting system should be accessible, confidential, and supported by a clear policy outlining the process for handling reports and the protections available to employees.
How Should Employers Treat Whistleblowers?
Employers should avoid attempting to identify who made a report of an alleged violation of the law to a governmental agency, especially if that agency is investigating the employer. This information is typically unnecessary to address the report and could introduce additional risk for the employer.
If an employer is aware of who made a complaint, they should treat that employee with the same level of care as any other employee. Specifically, the complaining employee should not be held to higher performance or behavior standards.
That said, filing a complaint does not mean that an employee is exempt from performance and behavior standards, nor does it prevent an employer from separating an employee for lawful reasons. However, employers should exercise caution and consult counsel before taking adverse action against an employee who has recently filed a complaint about a legal violation. Many courts have ruled that close timing between a complaint and adverse action can be enough to suggest a retaliatory motive. Therefore, employers must ensure they have a legitimate, non-retaliatory reason for separating an employee who has filed a complaint (regardless of whether the complaint is valid), particularly if the separation occurs shortly after the complaint.
Next Steps for Employers
Employers should regularly review their policies and procedures to ensure ongoing compliance with relevant laws. Reviewing policies and procedures with legal counsel can help identify potential risks and recommend necessary changes. By taking a proactive approach to compliance and employee relations, employers can foster a positive work environment that aligns with both legal obligations and business goals.
Lastly, employers especially affected by recent legal changes should consider meeting with our knowledgeable DC Employment attorneys who can explain these new laws and how they may impact their operations.