Should Businesses Still Recognize Observance Months?

Observance months are likely lawful for companies—despite the U.S. Department of Defense (DoD) no longer recognizing them—as employers strive to comply with Title VII of the Civil Rights Act of 1964 and President Donald Trump’s diversity, equity, and inclusion (DEI) executive orders (EOs).

A Feb. 5 U.S. Department of Justice (DOJ) memo from Attorney General Pam Bondi on the DOJ’s response to the EOs said the memo “is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day [Jan. 27], or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”

EO Recognizes Black History Month

On Jan. 31, Trump proclaimed February 2025 National Black History Month, stating the following: “Today, I am very honored to recognize February 2025 as National Black History Month. Every year, National Black History Month is an occasion to celebrate the contributions of so many [B]lack American patriots who have indelibly shaped our [n]ation’s history.” 

He went on to state, “American heroes such as Frederick Douglass, Harriet Tubman, Thomas Sowell, Justice Clarence Thomas, and countless others represent what is best in America and her citizens. Their achievements, which have monumentally advanced the tradition of equality under the law in our great country, continue to serve as an inspiration for all Americans.”

Trump called upon “public officials, educators, librarians, and all the people of the United States to observe this month with appropriate programs, ceremonies, and activities.”

Identity Months ‘Dead at DoD’

Nonetheless, the DoD announced Jan. 31, in a release called “Identity Months Dead at DoD,” that it would no longer recognize several cultural awareness months to ensure unity and purpose. 

In the Jan. 31 release, the DoD said, “our unity and purpose are instrumental to meeting the department’s warfighting mission. Efforts to divide the force—to put one group ahead of another—erode camaraderie and threaten mission execution.”

The release stated that, going forward, the DoD would not host celebrations or events related to cultural awareness months, including:

• National African American/Black History Month (February).
• Women’s History Month (March).
• Asian American and Pacific Islander Heritage Month (May).
• Pride Month (June).
• National Hispanic Heritage Month (Sept. 15 to Oct. 15).
• National Disability Employment Awareness Month (October).
• National American Indian Heritage Month (November).

Service members and civilians may attend these events in an unofficial capacity outside of duty hours, the memo said.

“Installations, units, and offices are encouraged to celebrate the valor and success of military heroes of all races, genders, and backgrounds as we restore our warrior culture and ethos,” the guidance stated. “We are proud of our warriors and their history, but we will focus on the character of their service instead of their immutable characteristics.”

Observance Months Still Legal for Companies

It is still legal for companies to recognize heritage months, said Sarah Goodman at Offit Kurman in Philadelphia. 

“There is no law that prohibits or restricts employers from celebrating or acknowledging heritage months,” she said. “As long as these observances are done respectfully, inclusively, and in a way that avoids discrimination or [creating] a hostile work environment, they are generally permissible,” Goodman said.

Craig Leen, an attorney with K&L Gates in Washington, D.C., and director of the Office of Federal Contract Compliance Programs during Trump’s first term, agreed that companies can continue to promote heritage months. 

“It is helpful if these efforts are employee-led and -generated instead of employer-mandated,” he said. “As for inclusion efforts generally, these are typically lawful as long as they do not exclude any group or create a preference based on a protected basis.”

Goodman recommended that companies recognizing observance months:

• Focus on inclusive and voluntary activities. Employers should frame any diversity-related programs, including heritage month celebrations, as voluntary and inclusive events. Participation should not be mandated, as this could raise concerns under the EO or other applicable regulations.
• Promote education and awareness. Employers can emphasize educational efforts that focus on increasing awareness and understanding of diverse backgrounds. Heritage months can be used to highlight the cultural contributions of different groups without making it a requirement for employees to participate.
• Ensure compliance with regulations. Review any current DEI efforts and adjust them in line with the EOs. The key is to avoid using any training or programs that may be deemed as promoting discriminatory practices or divisive rhetoric in the workplace.

“Employers should seek legal counsel to review specific DEI initiatives, as compliance may vary depending on jurisdiction and the specifics of the executive order and any subsequent legal challenges or changes,” Goodman said.

Camille Olson, an attorney with Seyfarth in Chicago, San Francisco, and Los Angeles, said the new EOs on DEI programs “do not explicitly prohibit the recognition of heritage months or the celebration of cultural diversity. But employers should think through their initiatives to ensure they do not violate Title VII.”

Olson said employers should celebrate cultural diversity inclusively by inviting and encouraging all employees to participate, regardless of their background.

Practices to Avoid

As for practices companies should avoid, Goodman cautioned that companies should:

• Avoid mandatory DEI training focused on identity politics. Employers should be cautious about implementing mandatory DEI training that focuses on identity politics, stereotyping, or any form of racial or gender-related divisiveness that might violate the EO’s guidelines.
• Not use DEI efforts to promote political agendas. Employers should refrain from using workplace programs as a platform for political agendas that could be viewed as contrary to the guidance in the EO. It’s essential to focus on fostering inclusion and mutual respect.
• Not penalize employees who don’t participate. Heritage month celebrations should not lead to any negative consequences for employees who opt out.