Royal

After the DEI Executive Order

February 14, 2025

What Are the Compliance Requirements for Private Employers?

In January 2025, President Trump issued the “Ending Illegal Discrimination and Restoring Merit-based Opportunity” executive order, which significantly impacts private employers, particularly those that implement diversity, equity, and inclusion (DEI) programs. This order aims to curtail employment practices that provide preferential treatment based on race, sex, or other protected characteristics, reinforcing a strict adherence to merit-based hiring and advancement.


For private employers, especially federal contractors and organizations with established DEI initiatives, understanding the legal implications of this order is essential to ensure compliance while mitigating potential liabilities.

 

Key Legal Implications for Private Employers

  • Revocation of affirmative-action mandates for federal contractors. The order revokes prior mandates, including Executive Order 11246, which required federal contractors to adopt affirmative-action programs to address historical disparities in hiring. The revocation effectively eliminates federal obligations for contractors to develop workforce diversity plans or set hiring goals based on demographic representation.
  • Regulatory scrutiny of employment practices. Federal agencies, particularly the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), have been directed to investigate employment policies that could be deemed discriminatory under the new legal framework. Employers must ensure that any DEI initiatives remain neutral and do not grant or deny opportunities based on race, gender, or other protected classifications.
  • Merit-based employment enforcement. The executive order underscores the importance of meritocracy, requiring employers to justify employment decisions strictly based on qualifications, experience, and performance. Organizations implementing hiring quotas, targeted recruitment efforts, or employee resource groups may need to re-evaluate these programs to avoid potential litigation risks.
  • Compliance audits and investigations. The attorney general is tasked with formulating an enforcement plan that includes identifying employers whose DEI initiatives may conflict with federal non-discrimination laws. Employers should anticipate increased oversight, potential audits, and legal challenges if their policies include race- or gender-conscious hiring, promotions, or training programs.

 

Compliance Strategies for Employers

Given the legal uncertainties surrounding this order, private employers must take proactive steps to avoid violations and potential legal repercussions.

  • Conduct an internal policy review. Employers should undertake a comprehensive audit of all DEI programs, training materials, hiring practices, and workplace policies. Any language or initiatives that suggest preferential treatment based on race, gender, or ethnicity should be reassessed to ensure alignment with the updated legal framework.
  • Emphasize equal opportunity and non-discrimination. To remain compliant, companies should reaffirm their commitment to equal opportunity without the use of race- or gender-based preferences. Employee training programs should be reviewed to ensure they focus on compliance with federal anti-discrimination laws rather than implicit bias or identity-based initiatives.
  • Monitor federal guidance and legal challenges. Since the implementation of this order may lead to litigation and policy revisions, employers should stay informed of further legal developments from the DOJ, EEOC, and other regulatory bodies. It is advisable to consult employment-law attorneys to navigate these changes effectively.
  • Prepare for increased scrutiny and potential investigations. Employers, particularly those with government contracts, should be prepared for potential audits and legal reviews. Documentation demonstrating that hiring and promotion decisions are based solely on qualifications and performance will be crucial in defending against any claims of discriminatory practices.

 

Conclusion

The repeal of affirmative-action mandates and the increased focus on merit-based employment and advancement signal a substantial shift in workplace compliance requirements for private employers. Organizations that have historically engaged in DEI initiatives must carefully reassess their programs to ensure they do not run afoul of federal regulations. While diversity efforts are not outright prohibited, any policies that confer advantages or disadvantages based on protected characteristics may expose employers to legal liability.


To mitigate risks, employers should prioritize objective hiring and promotion criteria, eliminate race- or gender-based preferences, and stay informed on regulatory updates. Consulting legal experts and conducting internal audits will be critical steps in ensuring compliance with this evolving legal landscape.


Krupa Kotecha is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


Krupa Kotecha wrote this article which was featured in Businesswest. Click here to visit their website.

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

ALERT: EEOC ISSUES GUIDANCE FOR WEARABLE TECHNOLOGY

February 14, 2025
On February 12, 2025, the Equal Opportunity Employment Commission (“EEOC”) issued guidance to remind employers that employment discrimination laws apply to the collection and use of information from wearable technology, which includes smart watches and rings, environmental or proximity sensors, smart helmets or glasses, exoskeletons, GPS devices or any other device worn on the body embedded with sensors to track bodily movements, collect biometric information and/or track an employee’s location. Regarding the Americans with Disabilities Act (“ADA”), the EEOC reminds employers that information collected from wearable technology can constitute a prohibited medical examination or disability-related inquiry. These examinations and inquiries are prohibited under the ADA unless they are job-related and consistent with business necessity. For example, employers may be conducting a medical examination if information is collected about an employee’s physical or mental condition from the wearable technology. Further, employers may be engaging prohibited disability-related inquiry if they are to direct employees to provide information in connection with the use of wearable technology. If this data is collected by employers, the EEOC reminds employers that this data must be maintained in separate medical files and treated as confidential medical information. The EEOC also notes that employers may need to make exceptions or provide alternatives to wearable technology policies as a reasonable accommodation under Title VII (as a religious accommodation), the ADA (disability) or the Pregnant Workers Fairness Act (pregnancy, childbirth and related medical conditions), even if the employer complies with the ADA’s limitations. Further, the EEOC informs employers that the improper use of information collected from wearable technology could result in unlawful discrimination. For example, an employer cannot use information collected from wearable technology to infer that an employee is pregnant and terminate the employee and/or place the employee on unpaid leave. As way of further example, tracking an employee who takes a parent to a dialysis center and then inquiring as to the purpose of the visit would be a discriminatory practice that elicits genetic information about the employee’s family medical history. Employers should be aware of the limitations of the collection of data with wearable technology in light of the EEOC’s guidance and must review policies on wearable technologies to ensure compliance with the ADA and other anti-discrimination laws. If an employer has a concern or question related to the use or collection of data in relation to wearable devices, employers should seek counsel to avoid running afoul of the EEOC’s update guidance. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.
Share by: