EXECUTIVE ACTION AND ANTI-DISCRIMINATION LAWS: AN EMPLOYMENT CONUNDRUM

Recent executive orders, Defending Women From Gender Ideology Extremism and Restoring the Biological Truth to the Federal Government and Ending Illegal Discrimination and Restoring Merit-Based Opportunity signed by President Donald Trump, on January 20th and 21st, have caused a multitude of questions regarding anti-discriminatory policies in the workplace and how employers are expected to properly comply.

Many of the questions raised are in relation to the fact that these executive orders (EOs) directly contradict federal anti-discrimination laws. How can employers comply with Title VII of the Civil Rights Act while also complying with executive orders prohibiting federal contractors from considering race, color, sex, sexual preference, religion, and national origin in ways that violate the nation’s civil rights laws? The verbiage of these recent executive orders has caused nationwide confusion. This confusion could land both private sector and federal employers in hot water if they utilize affirmative action or Diversity Equity Inclusion (DEI) Programs. As a result, countless employers across the nation are finding themselves with more questions than answers on how to properly comply. Royal Attorneys are here to help employers by providing guidance on what we know so far, what is still unanswered/ unclear how to proceed and action/policies to implement or revise for proper compliance in the meantime while we await clarification.

What We Know:

It is important to note that Executive Orders do not override legislation and anti-discrimination laws are still fully in effect. This means that the EOs did not affect the status of laws enacted by Congress which prohibits discrimination including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act, the Rehabilitation Act, Vietnam Era Veterans Readjustment Assistance Act, the Pregnancy Fairness Act, and the Americans with Disabilities Act. With these EOs, application and interpretations of these laws by many federal agencies may change. It is critical with these changes and shifts in agency interpretation that employers review handbooks and policies.

An example that displays this change in interpretation and application can be found within the Equal Employment Opportunity Commission (EEOC). The EEOC has taken down from its website compliance sections regarding Guidance on Sexual Orientation and Gender Identity Discrimination for A pending review. The EEOC’s previous guidance is no longer consistent with the EO Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which exclusively acknowledges and narrows definitions to two-sex binary definitions. In general, agencies have been directed to no longer use the word ‘gender’ in policy and instead use the word ‘sex’ in its place.

President Trump’s EO Ending Illegal Discrimination and Restoring Merit-Based Opportunity rescinded President Lyndon Johnson’s EO 11246, which he issued in September 1965. The former EO required federal contractors to take affirmative action regarding minorities and women. President Trump’s EO directs the Office of Federal Contract Compliance (OFFCP) to not allow or encourage federal agencies or contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion or national origin effective immediately. Additionally, federal contractors are prohibited from considering these categories in any way that may violate civil rights laws. Additionally, Order 03-2025 was issued which applies to federal contractors under jurisdiction of the OFCCP who must now cease and desist all investigations and enforcement in violation of the EO 11246, and to notify all parties by January 31, 2025 of this change.

What Employers Can Do:

This brings to the forefront the question, “How do employers comply with anti-discrimination laws without DEI initiatives?”. Not all organizations want to comply with this EO. Many are doubling down on their DEI commitments. There is no current guidance to navigate and implement these changes.

As we wait for guidance, there are a few things employers can do now.

• Handbook and policy reviews are vital
• Review DEI policies and practices in the workplace
• Assess whether to move forward with affirmative action plans and initiatives
• Assess applicant tracking systems and how information regarding women and minorities is utilized to determine discriminatory impact
• Assess how to best document employment decisions to show decision based on merit, rather than protected status
• Evaluate conflicts between applicable federal and state laws, including states laws which expressly protect gender identity and sexual orientation or require affirmative action

The EEO standard has gone back to “equal opportunity” based on merit with President Trump’s Executive Orders. As a result, don’t be surprised if you see an increase in litigation regarding reverse discrimination and tension between states and federal government regarding EEO matters.

Our Labor and Employment Attorneys are here for employers in drafting and revising employment policies and handbooks. 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.