What the New DEI Executive Order Means for Washington State Employers

By Krista Slosburg | Related Practice: Employment

The rush of recent executive orders has left many employers wondering if they need to reevaluate their programs and policies, specifically those focused on diversity, equity, and inclusion (DEI). Below, we summarize the recent Executive Order and what Washington employers need to know.

Ending Illegal Discrimination and Restoring Merit-Based Opportunity

The Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” issued on January 21, 2025, specifically addresses DEI programs in the private sector.

Section 2 specifies that “it is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work.” It continues, “I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”

Section 4, entitled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” directs all agency heads, with the assistance of the Attorney General, to “take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order.” The Order directs the Attorney General, in consultation with the heads of relevant agencies and in coordination with the Director of the Office of Management and Budget, to submit a report with recommendations for enforcing federal civil-rights laws and “taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”

The report is to include a “strategic enforcement plan” that identifies the following:

• Key sectors of concern within each agency’s jurisdiction;
• The most egregious and discriminatory DEI practitioners in each sector of concern;
• A plan of specific steps or measures to deter DEI programs or principles that constitute illegal discrimination or preferences;
• Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all federal civil rights law;
• Litigation that would potentially be appropriate for federal lawsuits, intervention, or statements of interest; and
• Potential regulatory action and sub-regulatory guidance.

What This Means for Washington Employers

DEI can remain a priority. The Executive Order targets illegal DEI programs. If your business has programs or policies that promote diversity, equity, and inclusion, they can continue so long as they are not in violation of the law. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. Well-designed DEI programs and policies do not discriminate based on these protected classes; rather, they strive to do the opposite by ensuring that workplaces are welcoming to all and free from illegal discrimination.

Evaluate policies and practices. Now is a good time to review policies and practices for potentially unlawful provisions. Policies and practices that include hiring quotas or reserving vacancies based on protected class are unlawful, but there are plenty of ways to have compliant DEI initiatives. And significant departures from existing DEI programs and policies—or revoking them altogether—could likewise carry risks.

Listen to employees. Expect employees to be more attuned to these issues. Some may be very vocal about the need for DEI programs and policies to continue or be created if none already exist. Others might be more critical of DEI and could assert claims. Either way, it will be important for employers to be aware of these issues.

Remember, Washington State law still applies. While the Order’s focus is federal law, keep in mind that the Washington Law Against Discrimination (WLAD) is alive and well. Employers are obligated to comply with well-settled workplace laws in the state. That means not discriminating against employees on the basis of any protected class—including gender identity and sexual orientation. Employers must continue to do things like refer to employees using the appropriate pronouns and allow them to use restrooms consistent with their gender expression or gender identity.

What’s next? For now, this Order is seemingly focused on larger employers. It directs each agency 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 1 billion dollars. While the focus in the coming months will likely be on larger workforces, it would be prudent for smaller employers to ensure their policies are in compliance.

If you have questions about DEI programs or policies, please contact a member of our employment team.