Lest the forest got lost in the trees, we are wrapping up this series of articles on the Trump Executive Orders on affirmative action (AA) and diversity, equity, and inclusion (DEI) to highlight the key takeaways for employers.
- 1. Employment Law Protections Are Not Immediately Collapsing
As outlined in Part I of this series, affirmative action was largely built on a federal executive order, and a new executive order is taking it down. Diversity, equity, and inclusion programs in the federal government largely arose from the implementation of that executive order, as we discussed in Part II, and they are being taken down with it. Employment discrimination laws, on the other hand, have gone through all three branches of our federal system – they were adopted by Congress, signed into law by past presidents, and have been interpreted for decades all the way up to the Supreme Court. They remain in place and can be altered or repealed only by an act of Congress or a holding of illegality or unconstitutionality by the federal courts.
While the Trump Executive Orders are testing the limits of presidential authority and in some respects have created novel questions of legal interpretation (as discussed in Part V), it does not appear that this administration is seeking to overturn our federal employment laws prohibiting discrimination based on a limited category of protected characteristics. Language in the current executive orders indicates that those laws are not the target. The Purpose statement for the executive order ending affirmative action and related EEO reporting requirements for federal government contractors expressly states that the long-standing civil rights laws (specifically referencing the characteristics protected under Title VII) “serve as a bedrock supporting equality of opportunity for all Americans.”
The impact of the Trump Executive Orders differs significantly for organizations based on whether or not the organization receives federal funding. Federal funds can come by way of:
- being a federal government contractor, or a subcontractor being paid to do work toward a federal government contract;
- receiving federal grants directly to fund some portion of the work of the organization, or
- indirectly benefitting from federal funds, such as through federal student loans that are applied to fund academic programs.
Largely as a matter of contract law, those organizations are being required to adhere to the terms of the executive orders – these are the conditions being placed on federal dollars.
Most organizations in the private sector do not receive federal funding. Where federal dollars stop, the federal government’s power to direct internal organization practices greatly diminishes. If your organization can get by without the federal money, then it has more flexibility in how it proceeds.
Federal contractors and federal grant recipients are required to affirmatively acknowledge they understand that their compliance with federal anti-discrimination laws is a material condition of their receipt of federal funds, and they do not operate programs promoting DEI that violate any applicable federal anti-discrimination law. Plenty of organizations will check that box and sign, without further thought. DO NOT place your organization in that position. Stop and get advice.
In making that affirmative statement, federal contractors and grant recipients should be mindful of the current administration’s hostile perspective toward DEI, and particularly its strong stance against gender diversity, as we discussed in Part V of this series. Actions that employers have historically taken (and may even be required to take under state and local laws in some jurisdictions, such as recognizing an employee’s preferred pronouns, or making bathrooms available based on an individual’s gender identity irrespective of the person’s identified sex at birth) are now being recharacterized as “illegal” by the current administration.
Signing the statement without carefully reviewing the organization’s public and private pronouncements and activities related to DEI (and getting legal advice) may imperil the organization’s federal funding. Even more alarming, it exposes the organization to fines, penalties, or even stronger government sanctions (with civil and criminal actions being threatened).
Federal contractors continue to have affirmative action obligations with regard to covered veterans (for contracts of $100,000 or more) and individuals with disabilities (for contracts in excess of $10,000), as we discussed in Part III of this series. Affirmative action plans are no longer required of federal contractors with respect to women and minorities.
The Office of Federal Contract Compliance Programs (OFCCP) is currently sorting out how to apply the new executive orders to its programs. It would not be surprising if OFCCP removes goals and benchmarks or otherwise redefines what it means to take “affirmative action” in support of the hiring and promotion of veterans and disabled individuals. Keep checking their website.
Federal contractors who provided DEI training or training materials, or that otherwise supported DEI initiatives on behalf of any aspect of the federal government likely have already received notice that those contracts are revoked. Similarly, any organization or individual who received federal grant funds to apply toward DEI initiatives should assume those funds are discontinued. Federal agencies have been directed to provide lists of those who received federal contracts or grants for DEI work at any point in the last presidential administration (going back to January 20, 2021). It is unclear what the current administration intends to do with that information, particularly as to those engagements that have already been completed and funds that have already been paid and spent.
Finally, as discussed in Part VII of this series, even if you are committed to DEI work, do not ignore the current environment and reflexively continue doing what you have been doing. Pause. Reflect. Get legal advice. Confirm that your messaging and approach are aligned, and that they are consistent with the parameters of the antidiscrimination laws. Take guidance from the Supreme Court’s 2023 analysis of affirmative action programs in the context of college admissions, and as I wrote at that time, apply those principles to the workplace.
Business decisions that organizations made in the past, where the legality may have been questionable as I discussed in Part IV of this series, might be determined differently now. The Trump Executive Orders direct that up to nine large organizations be identified for potential civil compliance investigations based on their DEI programs, and as discussed in Part VI, the Equal Employment Opportunity Commission (EEOC) is particularly gearing up to construe employer actions that accommodate gender diversity as potentially rising to the level of sex discrimination in violation of Title VII. The EEOC is hampered in that effort by the lack of a quorum of commissioners, and its position presents real questions relative to the Supreme Court’s 2020 decision on the scope of Title VII’s protections, but organizations would do well to consider those varied factors in determining how to proceed at this time.
By Tracey I. Levy
