This year, White House Executive Orders, federal agency guidance, court decisions and other legal developments have had consequential business impacts in the area of employment discrimination law. With the end of 2025 quickly approaching, this alert summarizes some of these key issues and discusses what employers should consider while navigating associated legal risks.
Same-Sex Marriage
In November, the U.S. Supreme Court declined to consider overturning its 2015 decision in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry under the U.S. Constitution. Without comment, the Court declined the petition for review filed by a former Kentucky county clerk that asked the Court to reverse an order that she pay a sum of money to a couple denied a marriage license and overturn the same-sex marriage Obergefell ruling. Although same-sex marriage remains legal at the federal level, the Court’s consideration of the petition created concern for same-sex couples.
What This May Mean for Your Business
The Court’s decision to not revisit its Obergefell ruling means that employers should maintain benefits and policies that apply equally to all married couples, regardless of the employee’s sex or sexual orientation.
DEI Programs and Policies
Upon taking office in January 2025, President Trump signed several Executive Orders, including some targeting purportedly “illegal” employer diversity, equity and inclusion (“DEI”) programs and policies. These Orders included, among others:
- Executive Order 14151, “Ending Racial and Wasteful Government DEI Programs and Preferencing” — Directs the elimination of DEI-related offices, policies and initiatives tied to the federal government, and mandates that federal agencies terminate “equity-related grants or contracts” and DEI-related positions.
- Executive Order 14148, “Initial Rescissions of Harmful Executive Orders and Actions” — Rescinds prior administration Executive Orders that focus on including sexual orientation or gender identity protections in federal laws and contexts, such as Title IX and the ACA, LGBTQ+ individuals’ rights, eliminating racial barriers to equal access, and advancing racial and Tribal equity.
- Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” — Rescinds long-standing Executive Order 11246 related to federal contractors’ obligations for affirmative action in employment with respect to women and minorities, and further requires those contractors to certify they do not operate “illegal” DEI programs. This Order also directs federal agencies to identify targets among non-profit or for-profit entities for enforcement action related to “illegal” DEI activities that might constitute discrimination in favor of a traditionally marginalized group (such as women or people of color) and against traditional majority groups (such as white individuals or men).
- Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” — Defines “male” and “female” in relation to anatomy at birth, directs federal agencies to act in accordance with these sex/gender definitions, and focuses on keeping biological males out of women’s restrooms.
What This May Mean for Your Business
Lawsuits challenging some of the DEI-related Executive Orders have been filed, and litigation is ongoing. However, despite uncertainty for employers concerning the status of DEI programs and policies, there are several takeaways. The Executive Orders demonstrate the Trump administration’s position on, and its agenda related to, DEI policies and programming in all settings, including public and private employment. To minimize risk, employers should consider focusing on equal employment and non-discrimination policies and should consider a legally privileged self-audit to determine if they have any policies or practices posing risk in this new enforcement climate.
Additionally, although Executive Order 14173 rescinds affirmative action in employment requirements for federal contractors based on certain protected characteristics (e.g., women and minorities), such contractors’ affirmative action requirements remain not only under federal statutes regarding individuals with disabilities and protected veterans, but also under state or local laws as may be applicable.
“Reverse-Discrimination” Lawsuits
Earlier this year, the U.S. Supreme Court unanimously decided in Ames v. Ohio Department of Youth Services that Title VII of the Civil Rights Act of 1964 does not impose a heighted evidentiary burden for disparate treatment discrimination claims brought by plaintiffs who are members of a majority group (e.g., white, male, or heterosexual) claiming discrimination against them due to preference for a traditionally marginalized group.
The Court held that the “background circumstances” rule applied by the Sixth Circuit – which required majority group members to prove that “background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority” – does not comport with the plain language of Title VII or Supreme Court precedent. The Supreme Court affirmed in Ames that Title VII’s disparate treatment provision sets the same protections for every individual without regard to membership in a majority or minority group.
What This May Mean for Your Business
With the Supreme Court’s affirmation that majority and minority group plaintiffs have the same proof requirements to bring a Title VII disparate treatment claim, employers and legal scholars predict that there could be a rise in “reverse discrimination” lawsuits brought against employers. Reverse discrimination claims have already become more common in the last few years, and with the Ames decision removing evidentiary barriers for majority group members, that upward trend is likely to continue. It is important for employers to keep this decision in mind while making decisions impacting applicants and current employees.
Disparate Impact Theory of Discrimination
President Trump’s Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy,” directs federal agencies to shift away from the disparate impact theory of discrimination liability and move toward primarily enforcing intentional discrimination claims.
Disparate impact theory permits discrimination claims when a specific employment practice causes a statistically significant and unlawful disparate impact on a legally protected demographic group, even if the practice appears facially neutral.
This Executive Order endeavors to eliminate disparate impact liability for employers. However, as a product of statute, to remove disparate impact as a basis for Title VII liability, Congress must amend Title VII’s disparate impact provisions. In addition, even if the Trump administration’s enforcement focus has shifted, disparate impact claims may be pursued by state or local agencies or private litigants.
However, the federal government has begun implementing Executive Order 14281 in other contexts that may impact some employers. On December 10, 2025, the U.S. Department of Justice issued a Final Rule eliminating disparate impact theory discrimination claims under Title VI of the Civil Rights Act of 1964 by requiring proof of intent as the sole basis for Title VI discrimination claims. Title VI prohibits discrimination on the basis of race, color and national origin in programs and activities receiving federal financial assistance.
Considerations for Employers: Next Steps
Although the Equal Employment Opportunity Commission’s (EEOC) fiscal year has already ended, the EEOC has yet to release its 2025 enforcement and litigation statistics. While the specific numbers and types of claims brought in 2025 are not yet available, the trend of increasing employment discrimination charges, as seen in 2024, is expected to continue.
To ensure compliance with federal and state discrimination laws, employers should consider the following actions:
- Review and adhere to the federal, state and local employment discrimination laws of all locations in which they operate or have employees.
- Conform to established interview protocols and ask standard and non-discriminatory job-related questions of all applicants.
- Keep standardized documentation on all applicants and employees.
- Assess all employment decisions carefully before acting to confirm compliance with Title VII and applicable state and local laws.
- Ensure decision-making personnel are trained and all employment decisions are supported by legitimate business reasons that are non-discriminatory and non-retaliatory.
- Continue to focus on equal employment for all individuals regardless of race, color, sex, national origin, religion, age, disability or any other classification.
- Consider a legally privileged self-audit of employment policies and practices to assess any risk for potential enforcement action related to DEI.
Employers should continue to be aware of potential changes in discrimination claim frameworks and enforcement due to court decisions, executive guidance and other legal developments, and should work with legal counsel to best position themselves for any consequences.
Additionally, the EEOC, the U.S. Department of Labor’s Wage and Hour Division (WHD) and the Occupational Safety and Health Administration (OSHA) are offering a free four-part series in January about the current state of federal workplace discrimination laws.
If you have any questions about federal or state employment discrimination laws, please contact Rosalee McNamara, Natalie Kay, or your regular Lathrop GPM attorney.