Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—N.D. Ill.: CWIT wins partial preliminary injunction in challenge to Trump’s DEI executive orders, (Apr 16, 2025)

By Kathleen Kapusta, J.D.

Chicago Women in Trades challenged several provisions in two executive orders issued by the President during his first two days in office.

Granting in part a preliminary injunction requested by Chicago Women in Trades (CWIT)—a nonprofit organization dedicated to “promoting diversity, equity, and inclusion within the skilled trades industry”—against two of five challenged provisions in two executive orders issued by President Trump addressing DEI, a federal court in Illinois found CWIT established that an injunction was warranted against the DOL from requiring any grantee or contractor to make a specified certification pursuant to section 3(b)(iv) of Executive Order 14173—certifying among other things that that they do not operate DEI programs—and from applying section 2(b)(i) of Executive Order 14151 against it to prevent termination of its Women in Apprenticeship and Nontraditional Occupations grant. While the court found a nationwide injunction necessary as to the certification provision, it declined to extend an injunction beyond CWIT itself as to the termination provision (Chicago Women in Trades v. Trump, No. 25 C 2005 (N.D. Ill. Apr. 14, 2025)).

Federal funding. CWIT, which provides programs focused on "preparing women across the country to enter and remain in high-wage skilled trades, including carpentry, electrical work, welding, plumbing,” relies on federal funding for about 40 percent of its annual budget, including grants that originate from the Department of Labor.

Executive Orders. In his first two days in office, President Trump issued two Executive Orders addressing DEI. EO 14151, "Ending Radical and Wasteful Government DEI Programs and Preferencing," issued January 20 (J20 Order) focused on ending DEI programs within the federal government while EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity," issued on January 21 (J21 Order) focused on "enforcing civil rights laws" by "ending illegal preferences and discrimination" in both the federal government and the private sector.

OPM memo. On January 21, the Office of Personnel Management issued a memorandum to agency heads directing them to, among other things, terminate DEIA-related contractors by the following day. Over the next few days, CWIT received notifications from grant administrators directing recipients of federal financial assistance to cease all DEI or DEIA-related activities under their federal awards, consistent with the EOs. It also received notification that a contractor with which it subcontracted was required to cease all DEI-related activity and asking CWIT to stop any further work on its subcontracted DEI projects.

Challenged provisions. Filing suit against President Trump, the DOL, OMB, and DOJ, CWIT challenged the legality of termination provisions in both orders requiring the termination of DEI programs; a certification provision in the J21 Order mandating that agency heads include terms in every contract or grant award requiring parties to among other things agree to comply with federal anti-discrimination laws and certify that they do not operate DEI programs; and a section in the J21 Order directing the Attorney General to submit "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."

TRO. CWIT moved for a TRO, which the court granted in part on March 27, enjoining DOL from enforcing the termination provision in the J20 Order against CWIT and from enforcing the certification provision in the J21 Order against any grantee or contractor. It then moved for a preliminary injunction, arguing that the specified provisions of the two EOs violate its rights under the First and Fifth Amendment and run afoul of the Constitution’s Spending Clause and the separation of powers.

Standing. Addressing first the parties’ arguments regarding standing, the court incorporated its prior determination that CWIT only had standing to pursue its claims regarding the J20 termination provision and the J21 certification provision. As to the termination provision, which requires each agency to “terminate, to the maximum extent allowed by law, all... ‘equity-related’ grants,” the court noted that although the government has not yet terminated CWIT's grants, it has shown a sufficiently imminent injury to maintain a pre-enforcement challenge.

Its grants appeared to be squarely within the EO’s provision requiring the termination of equity-related grants and it alleges that it is a grantee that provides programming centered on equity. CWIT has also received several credible threats of enforcement, including from grant issuers, to "cease all activities related to [DEI] or [DEIA] under the federal awards, consistent with the requirements of the Executive Orders" and has been notified that one of its subcontracts will be terminated due to the EO.

Regarding the J21 Orders’ certification provision, which states that each agency "shall include in every... grant award" a certification, enforceable via the False Claims Act, that the grantee "does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws," CWIT alleges that because it is a grantee that provides programs promoting employment opportunities for women, there is a strong basis to believe that the government may consider its conduct to fall within the scope of this provision. It also alleges it faces pressure to self-censor in response to the orders but has not received guidance on how to comply with the new requirements.

For both provisions, the court found CWIT established injuries imminent enough to constitute concrete injuries in fact that support standing. The injuries are also fairly traceable to the defendants and the challenged provisions are in the EOs signed by the President and require implementation by DOL and other federal agencies. An injunction, said the court, preventing these provisions from being enforced would prevent the injury from taking place.

Ripeness. Rejecting next the government’s contention that CWIT’s challenges were not ripe because they were based on possible actions agencies might take under the EOs, the court pointed out that “every day that passes increases the risk of termination of its grants and, correspondingly, increases the pressure to self-censor its speech.”

Nor was the court persuaded by the government’s argument that CWIT’s claims under the termination provision are unripe in light of the Tucker Act because they are breach of contract claims that should be brought only after the grants are terminated and only in Court of Federal Appeals. Not only are they not in essence contract claims as they arise under the First and Fifth Amendments, the Spending Clause, and the separations of powers, but also CWIT exclusively seeks only injunctive relief, which the Court of Federal Claims could not provide.

Likelihood of success—certification provision. Turning to the preliminary injunction analysis, the court first found that CWIT was likely to succeed on the merits of its First Amendment claim challenging the certification provision. CWIT argued that 3(b)(iv) of the J21 Order unconstitutionally infringes on its First Amendment rights because the EO effectively regulates its conduct outside of the contours of the federal grants. Indeed, the court observed, the government conceded at oral argument that the certification provision attempts to regulate grantees' speech outside of their federally funded programs.

While the government claimed that the provision simply requires certification that the grantee is not breaking the law, the court pointed out that the EO does not define the term "DEI” or refer to any other source indicating what the term means as used in the EO, let alone what might make any given DEI program violate federal anti-discrimination laws. “And although the government emphasized, both in its briefing and at oral argument, that the Certification Provision implicates only illegal DEI programs, it has studiously declined to shed any light on what this means. The answer is anything but obvious.”

Moreover, the court observed, CWIT and other grantees have been directed by DOL to comply with the J20 and J21 Orders and the certification provision's application to grantees' activities that are not federally funded means that they must either take steps now to revise their programmatic activity so that none of it promotes “DEI," whatever that is, decline to make a certification and lose their grants, or risk making a certification that will be deemed false and will thus subject them to liability under the False Claims Act.

Noting further that the J21 Order's reference to "programs promoting DEI" is fairly read “as an express reference to First Amendment-protected speech and advocacy,” the court explained that even if the certification provision “is limited to promoting whatever the government may now contend is ‘illegal DEI,’ it is a bedrock First Amendment principle that advocating for violation of the law cannot be proscribed unless it rises to incitement.” Because CWIT demonstrated it is likely to succeed on the merits of its claim in challenging the certification provision, the court declined to address its arguments concerning this provision involving the Fifth Amendment, the separation of powers, and the Spending Clause.

Termination provision—First Amendment. The court found, however, that CWIT was not likely to succeed on the merits of its First Amendment claim relating to the termination provision. Here, the court concluded that, at least at this junction, the provision, which requires agencies to terminate all "equity-related" federal grants and does not prohibit equity-related activities outside of funded programs, concerns funding rather than an impermissible attempt to regulate. “The government,” the court explained, “has made a policy choice that it no longer wishes to support equity-related programs—a choice that it may make when funding.”

And because the provision involves the government engaging in funding, as opposed to regulating, “the vagueness concerns fall away as well,” said the court, noting that “Vague funding criteria certainly influences speech, but the consequence of grant termination or denial is significantly less severe than criminal or regulatory sanction, so it is likely that less speech will be stifled.”

Fifth Amendment. CWIT next argued that the termination provision runs afoul of the void-for-vagueness doctrine because the J20 Order does not contain any "statutory definitions, narrowing context, or settled legal meanings" regarding what constitutes "illegal DEI." In its supplemental preliminary injunction brief, however, the government clarified that the provision's direction to federal agencies to "terminate, to the maximum extent allowed by law... all... 'equity-related' grants or contracts" pertains to "the government's legal authority to terminate a contract or grant, which does not depend on whether the equity-related activity is 'legal' or 'illegal.'"

Noting that this is a limit solely on the government’s authority, the court found that any “concerns of vagueness regarding exactly what authority an agency may have to terminate a grant are internal considerations for the agency itself; this is not an outward-facing provision.” Thus, the grantees face no notice concerns arising from arguably vague directions by the President to his subordinates. Accordingly, the court found that CWIT was not likely to succeed on the merits of its Fifth Amendment claim.

Spending clause and separation of powers. Nor was CWIT likely to succeed on the merits of its facial separation of powers challenge to the termination provision, said the court, noting that to show the provision’s requirement to terminate equity-related grants violates the separation of powers in all applications, CWIT would need to show that the provision conflicts with every statute that appropriates funds for grants, a showing it did not attempt to make.

WANTO grant. Regarding CWIT’s challenge to the termination provision as applied to its five grants in particular, the court found only the termination of the Women in Apprenticeship and Nontraditional Occupations (WANTO) grant runs afoul of the Spending Clause. Noting that the WANTO Act requires that the DOL "shall make grants to community-based organizations to provide technical assistance to employers and labor unions," and that every example of "technical assistance" that the Act lists involves supporting women, in particular, who hold nontraditional occupations, the court was “unable to conceive of any grant issued under the WANTO Act that would not be an ‘equity-related’ grant.”

Because the WANTO Act requires DOL to issue equity-related grants, there is more than a "mere possibility" that DOL, following the requirements imposed by the EO, will violate the WANTO Act's prescriptions, the court explained, finding that CWIT has demonstrated a likelihood of success on its claim that the termination provision violates the separation of powers when applied to its WANTO grant.

Irreparable harm. Given its finding that CWIT established a likelihood of success on its claim that the certification provision violates its First Amendment rights, the court found CWIT made a sufficient showing of irreparable harm that would result from enforcement of this provision. CWIT is likely to suffer irreparable harm if the termination provision is enforced against the WANTO Act grants, said the court, as this would violate the separation of powers.

Balance of harm and public interest. As to the remaining factors, the court pointed out that injunctions protecting First Amendment freedoms and the separation of powers are always in the public interest. Further, "the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional." And because both EOs contain a severability clause, the unchallenged provisions, said the court, will remain in effect despite a preliminary injunction.

Scope. Addressing the scope of the preliminary injunction, the court found that granting a preliminary injunction barring DOL from enforcing the certification provision against any grantee or contractor was necessary to ensure that CWIT is provided complete relief and to prevent infringement of the First Amendment rights of other grantees and contractors. “The far-reaching impact of the Certification Provision combined with its encroachment on grantees' and contractors' First Amendment rights create the type of ‘exceptional circumstances’ in which ‘the proper scope’ of the injunctive relief is nationwide,” the court concluded.

As to a preliminary injunction precluding DOL from terminating CWIT's WANTO grant funds, the court did not see an appropriate basis for extending an injunction beyond CWIT itself. Thus, it limited the reach of the injunction as to the termination provision to enjoining DOL from terminating CWIT's WANTO grant.

The case is No. 25 C 2005.

Judge: Kennelly, M.

Attorneys: Adrienne Dervartanian (National Women's Law Center) for Chicago Women in Trades. Pardis Gheibi, U.S. Department of Justice, for Donald J. Trump.

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