In the past four years, numerous Big Law forms launched practices and industry groups geared at advising clients on matters related to their diversity, equity and inclusion (DEI) programs—and mounting backlash from the political right against the concept of DEI itself.

With the upcoming Trump administration, employers are bracing for opposition coming from lawmakers and federal agencies in addition to legal activists. That means more work for lawyers who counsel employers on their DEI practices. While DEI lawyers believe that the expected scrutiny may prompt some companies to reduce or eliminate their DEI programming, they also said most clients are holding firm in their convictions so far.

In addition to heightened scrutiny of DEI, a lack of clarity regarding how federal agencies like the Equal Employment Opportunity Commission view current practices is adding to the need for outside counsel. “There’s so much uncertainty in the law around this; the only people who benefit from this are lawyers, which is unfortunate,” said Jason Schwartz, a Gibson, Dunn & Crutcher labor & employment practice co-chair who also leads the firm’s DEI Task Force. “You want people to understand what the law is so you can follow it.”

Schwartz cited the EEOC’s conflicting response to the U.S. Supreme Court’s decision to overturn race-based affirmative action in college admissions last year as proof of the confusing regulatory landscape. While Chairperson Charlotte Burrows issued a press release noting that SFFA v. Harvard did not impact private employers’ DEI efforts, fellow Commissioner Andrea Lucas told Reuters that the decision should prompt private employers to take a “hard look” at DEI programming.

Mitchell Silberberg & Knupp labor & employment partner Louise Truong said she’s seen a steady stream of legal challenges against corporate DEI initiatives in recent months. “While it is hard to predict the timing and magnitude of any additional changes, we certainly anticipate an increase in demand,” Truong said. “There is a lot of speculation about how much further we’ll see anti-DEI sentiment creep into workforce regulation.”

Where Challenges May Come

DEI attorneys look to the Heritage Foundation’s Project 2025 as a potential blueprint for action during the second Trump administration. The document includes suggestions to eliminate disparate impact liability, which currently allows members of a protected group to sue on the basis of a policy’s discriminatory impact on them. Page 615 of the document also outlines the elimination of race and ethnicity data collection by the EEOC and the elimination of the Office of Federal Contract Compliance Programs, which currently exists to ensure federal contractors abide by a 1965 executive order for federal contractors to commit to nondiscrimination.

While such objectives may not touch every private employer with a DEI program, other aspects of Project 2025 could have a more widespread impact. For instance, DEI professionals interpret the document’s goal of “pursuing equal protection for all Americans by vigorously enforcing applicable federal civil rights laws” as a plan to use civil rights laws to investigate reports of reverse discrimination.

The document even signaled that DEI measures could be investigated for anti-competitive practices alongside environmental, social and governance (ESG) measures. “Managers, particularly in publicly traded corporations, who use their power to advance sets of fashionable moral beliefs, such as ESG/DEI, introduce agency problems into the shareholder relationship and appropriate corporate wealth for their own benefit,” Project 2025 states.