On Jan. 20, President Trump signed a multitude of executive orders, including executive order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing.” Since then, the administration has gone on to quickly issue further orders relating to diversity equity and inclusion (DEI) and various departments within the administration have begun to issue guidance regarding such directives. The speed at which these new changes are taking place is cause for heightened attention by companies across the board — whether public, private, nonprofit, for-profit or anywhere in between.
Sean LaPorta
Only the legislative branch of the U.S. government (and its individual states) can make laws. Accordingly, an executive order is not law, although it often has a similar impact on the day-to-day lives of Americans. Instead, an executive order is a directive from the President to the various federal agencies throughout the country, ordering the impacted agencies to act in accordance with the order, including enforcement of policies and laws in specific ways.
Executive order 14151 primarily ordered the director of the office of management and budget, alongside the attorney general and the director of the Office of Personnel Management to work together to dissolve DEI programs within the federal government. In doing so, the order required the review of all existing federal employment practices and the facilitation of recommendations as to what policies and practices to cut, in alignment with the order.
Signed the same day as President Trump’s inauguration, executive order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” formalized a binary approach to identifying sexes, limiting recognized sexes in the federal government to either male or female and eliminating policies promoting gender ideology.
On Jan. 21, executive order 14168, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” was issued. The order removed required affirmative action practices as part of government contracting by rescinding executive order 11246 (as well as a number of other similar orders). The order also encouraged private sector employers to end DEI policies and practices by tasking the attorney general to identify key sectors of the economy that have significant DEI policies and practices, so that the attorney general and other relevant agencies may enforce federal civil rights laws in accordance with the administration’s policies.
Significantly, the order required federal agencies to each identify nine private companies with assets of $500 million or more, or educational institutions with more than $1 billion in endowments, which the federal government will investigate for compliance with civil rights laws, in alignment with the administration’s policies.
In light of the forgoing orders, the acting chair of the Equal Employment Opportunity Commission (EEOC) announced that the EEOC is “returning to a mission of protecting women from sexual harassment and sex-based discrimination in the workplace.” In order to fulfill this stated mission, the EEOC indicated that it will be investigating business to ensure compliance with the new administration’s policies, and that it will follow up with litigation as needed. Accordingly, it is anticipated that there will be an uptick in disputes concerning DEI practices, including policies concerning sex/gender, such as single-sex spaces like bathrooms and locker rooms.
While the federal stance on DEI has shifted, individual state laws remain in effect, which may create a conflict between an individual’s rights under federal law as compared to rights under state law. However, such conflict may be short-lived in many locations, as states begin to put forth legislation in alignment with the executive orders.
Overall, while federal law regarding civil rights has not changed, the federal government’s approach to enforcement and ideology on interpreting those laws has shifted.
Accordingly, companies should begin to prepare for legal disputes surrounding current and past DEI practices. In doing so, companies should take a look at their existing policies and practices to determine vulnerabilities and paths forward that align with their mission and priorities. While the law is still unsettled, it is clear that the enforcement mechanisms engaged by the new administration have been effective in impacting DEI policies, causing companies like Target to dismantle longstanding DEI initiatives. What is also clear, is that such actions have impacted consumer bases, and in the case of Target, have resulted in consumer boycotts. Therefore, care, careful consideration and awareness are advised. Competent legal counsel can be an invaluable resource at this time, as companies seek to navigate these abrupt changes.
Sean LaPorta is a member of McLane Middleton’s Employment Law Group. He can be reached at sean.laporta@mclane.com.
