Over the past six weeks, Trump has issued a slew of executive orders (EOs) purporting to outlaw diversity, equity, and inclusion (DEI) programs of federal contractors, private companies, and colleges and universities. These EOs do not invalidate or affect existing workplace discrimination laws such as Title VII. However, all organizations with inclusion and diversity policies should review them to ensure they will withstand federal government scrutiny.
Nonetheless, the EOs represent a substantial shift in inclusion and diversity policies in the public and private sectors. For instance, federal contractors no longer have affirmative action requirements and are urged to adopt purely merit-based policies and practices. However, contractors still have some legal obligations, such as tracking the employment of veterans and people with disabilities.
Trump also directed the Attorney General to investigate private sector companies for what is termed “illegal” DEI. Attorney General Pam Bondi responded with the intention of beginning to evaluate options for enforcing this EO against private companies.
Furthermore, ongoing litigation concerning various aspects of these EOs has resulted in at least one federal district court blocking the implementation of some EO provisions. Not surprisingly, employers and companies are reporting confusion and concern about the existing inclusion and diversity policies and practices, whether changes are necessary, and whether enforcement action by the federal government could occur.
Title VII still outlaws employment discrimination based on race, color, religion, sex, or national origin. No EO does or can remove the protections of Title VII. Therefore, if a company has a lawful policy or program under Title VII, it continues to be lawful. However, the federal government's interpretation of that policy or program has changed to encompass a broader range of programs.
The EOs referencing “illegal” DEI provide no definition or example of those prohibited programs or policies. The likelihood is that illegal DEI encompasses programs or policies that provide specific employment-related benefits to one group over another. Therefore, companies must scrutinize their existing policies and any changes to those policies to ensure they avoid falling within the purview of “illegal” DEI.
For instance, DEI policies establish hiring goals based on protected characteristics, set aside grant funds for specific groups, give resources to affinity groups, or hold mandatory inclusion and diversity training. No program or policy should exclude any groups. Finally, it may be wise to remove equal employment opportunity language from websites and employee handbooks to avoid undue scrutiny by the government.
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