Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—N.D. Ill.: Women in trades group wins TRO against DOL in challenge to executive orders intended to end equity programs, (Apr 2, 2025)

By Ronald Miller, J.D.

The court concluded that CWIT has shown it is likely to succeed on the merits of its claim against the Termination Provision on First Amendment grounds.

A group dedicated to promoting diversity, equity and inclusion for women in skilled trades was granted a temporary restraining order (TRO), limited to the Department of Labor, against executive orders aimed at ending equity programs, ruled a federal district court in Illinois. The court first found that threats to terminate contracts were injuries imminent enough to constitute concrete injuries in fact that support standing to challenge the Termination and Certification Provisions of the Executive Orders. The court found that a TRO precluding any enforcement of the Certification Provision is warranted to ensure that CWIT is provided complete relief and to prevent broader impending violations against others who are similarly situated. The court reached a different conclusion, however, regarding the Termination Provision. The court limited its restraining order with regard to the Termination Provision to CWIT and any federal grantee through which CWIT holds a subcontract or is a subrecipient of federal funds (Chicago Women in Trades v. Trump, No. 25 C 2005 (N.D. Ill. Mar. 27, 2025)).

Chicago Women in Trades (CWIT) is a non-profit organization dedicated “to promoting diversity, equity, and inclusion within the skilled trades industry” through preparing women to enter and remain in high-wage skilled trades. Federal funding accounts for approximately 40 percent of CWIT's annual budget.

Executive orders. On January 20, 2025, President Trump signed Executive Order 14151 (J20 Order), titled “Ending Radical and Wasteful Government DEI Programs and Preferencing.” On January 21, the President signed Executive Order 14173 (J21 Order), titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

On January 21, 2025, the United States Office of Personnel Management (OPM) issued a memorandum to the “Heads and Acting Heads of Departments and Agencies” directing agency heads to, among other actions, “terminate any DEIA-related contractors” by January 22, 2025.

DEI activities terminated. On January 22, 2025, CWIT received an email from the grant administrator at the Department of Labor (DOL) Women’s Bureau, stating that, effective immediately, all recipients of federal financial assistance are directed to cease all activities related to ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) under their federal awards, consistent with the requirements of the Executive Orders.” That same day, CWIT received an identical email forwarded by the Illinois Department of Labor concerning a different grant. Also on January 22, CWIT received a notice from the DOL Acting Deputy Assistant Secretary stating that “[e]ffective immediately, all recipients of federal financial assistance awards are directed to cease all activities related to ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) under the federal awards, consistent with the requirements of the EOs.”

On January 23, 2025, CWIT received an email from an organization that it subcontracts with, regarding two grants. The email stated that the executive orders required the contractor “to pause immediately all activities directly tied to our federally funded work related to ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA).” The contractor asked CWIT to stop “any further work” on its subcontracted DEI projects. On March 26, 2025, the contractor terminated its contract with CWIT.

On February 26, 2025, CWIT filed suit against President Trump and the DOL, the Office of Management and Budget (OMB), and the Department of Justice, alleging that the executive orders violated its rights under the First and Fifth Amendments to the Constitution and also ran afoul of the Constitution's Spending Clause and the separation of powers. CWIT moved for a temporary restraining order (TRO) on March 18, 2025, arguing that it faced imminent, irreparable harm.

Standing. The court first addressed whether CWIT had standing to assert its claims. With respect to Section 2(b)(ii)(A) of the J20 Order and Section 3(c)(iii) of the J21 Order, the court determined that CWIT failed to establish the required injury in fact. Those provisions focus on internal government agency processes and programs and reporting to the President from his subordinates. CWIT is not an agency within the executive branch of government, and it has not alleged that it conducts any programming for the government. Thus, there was no showing that CWIT can be in imminent danger of injury based on those provisions.

On the other hand, Section 2(b)(i) of J20 Order (Termination Provision) requires each agency to “terminate, to the maximum extent allowed by law, all... ‘equity-related’ grants,” such that CWIT appeared to be squarely targeted by this provision. Although the government has not yet terminated CWIT’s grants, CWIT has shown a sufficiently imminent injury to allow a pre-enforcement challenge. CWIT has 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.”

Section 3(b)(iv) of the J21 Order (Certification Provision) 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 it is a grantee that provides programs promoting employment opportunities for women, so there is a strong basis to believe that its conduct might be considered by the government to fall within the scope of this provision. Again, the court found that CWIT has received credible threats of enforcement—as well as actual termination of a subcontract—from grantors. In addition, CWIT has alleged pressure to self-censor in response to the Orders. These injuries are imminent enough to constitute concrete injuries in fact that support standing to challenge the Termination and Certification Provisions. Moreover, the imminent injuries are also fairly traceable to the defendants.

Thus, the court was persuaded that CWIT had standing to pursue its challenges to section 2(b)(i) of the J20 Order and section 3(c)(iv) of the J21 Order. The court was also persuaded that CWIT's challenges to the Termination and Certification Provisions were ripe for review.

Temporary restraining order. To obtain injunctive relief, the movant “must establish that he [or she] is likely to succeed on the merits, that he [or she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his [or her] favor, and that an injunction is in the public interest.”

Termination Provision. CWIT brings a facial challenge regarding the Termination Provision of the J20 Order. It alleges that the provision violates its First Amendment right to engage in protected speech and expressive conduct—specifically, to use its grants to implement its mission, involving women-focused apprenticeship and training programs.

To succeed on a facial challenge under the First Amendment, CWIT must ultimately show that the law or regulation at issue “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.” To determine whether a challenged communication “is reasonably understood to be a coercive threat,” a court considers four factors under a totality-of-the-circumstances analysis. These factors include: “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and perhaps most importantly, (4) whether the speech refers to adverse consequences.”

The J20 Order is likely a coercive threat under this test. First, the word choice and tone of the J20 Order indicates that the government will terminate “illegal and immoral discrimination programs, going by the name ‘diversity, equity, and inclusion’ (DEI).” Second, because CWIT's grants are federally funded, the government has the ability to terminate them. Finally, there are explicit adverse consequences for noncompliance with the J20 Order. Thus, the totality of the circumstances reflect that the J20 Termination Provision may reasonably be understood as a coercive threat selectively targeting speech regarding DEI, DEIA, and equity-based programs.

The Termination Provision’s vagueness gives rise to additional First Amendment issues. Here, it is likely that a speaker would feel compelled to steer clear of a “forbidden area”: DEI. Therefore, the vagueness at issue in the Termination Provision goes squarely to the Court’s concerns in National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), even under a less stringent vagueness standard. Limiting termination to the maximum extent allowed by law offers no real protection, as the extent to which CWIT’s programs may violate the law remains unclear.

Certification Provision. CWIT argued that section 3(b)(iv) of the J21 Order unconstitutionally infringed on its First Amendment rights because the order effectively regulates CWIT’s conduct outside of the contours of the federal grants. The government conceded at oral argument that the Certification Provision attempts to regulate grantees’ speech outside of their federally-funded programs. However, it contended that the Certification Provision is permissible, as it simply requires certification that the grantee is not breaking the law.

Here, the court pointed out that the Order that contained the Certification Provision does not define the term “DEI” itself, and it does not refer to any other source indicating what the term means as used in the Order. CWIT (and other grantees) have received multiple communications from the DOL directing them to ensure compliance with the J20 and J21 Orders. As it relates to the Certification Provision, CWIT must either take steps to revise their programmatic activity so that none of it “promotes DEI,” decline to make a certification and thus lose their grants, or risk making a certification that will be deemed false and thus subject the grantee to liability under the False Claims Act. Accordingly, the court concluded that CWIT has shown that it is likely to succeed on the merits of its claim challenging the Certification Provision.

Irreparable harm. Moreover, the court determined that CWIT had made a sufficient showing of irreparable harm that would result from enforcement of these provisions. Additionally, “the balance of harms favored granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.”

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.

Companies: Chicago Women in Trades

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