Executive Orders Impact, EEOC Employer DEI Program Guidance

The following article first appeared in the News & Insights section of Carmody Torrance Sandak Hennessey’s website. It is reposted here with permission.

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Shortly after taking office, President Trump issued several executive orders that impact employer-sponsored diversity, equity, and inclusion programs.

The Equal Employment Opportunity Commission also stated that it is stepping up enforcement of illegal discrimination arising from DEI programs.

All employers should be aware of these developments and assess whether their DEI programs and initiatives could be deemed unlawful.

Background: President Trump has issued three executive orders that seek to end illegal DEI programs in the public and private sector.  

1. Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, mandates the termination of all DEI offices, positions, and related initiatives within federal agencies. It also mandates that preferred pronouns not be used on government email addresses. 
2. Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, defines “sex” as an individual’s immutable biological classification as either male or female. The order states that it is the policy of the U.S. to recognize two sexes, male and female, and directs agencies to remove policies promoting gender identity concepts and prohibits the use of federal funds for such purposes. It also seeks legislation to overturn the U.S. Supreme Court’s decision in Bostock v. Clayton County, which found that gender identity discrimination is prohibited under Title VII. 
3. Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, rescinds Executive Order 11246, which previously required federal contractors to implement affirmative action plans. It mandates that recipients of federal funding and federal contractors certify that they do not have any unlawful DEI programs. This order also instructs the U.S. Attorney General to identify and pursue enforcement actions against certain private-sector entities that the administration believes maintain discriminatory DEI practices. 

In addition to these executive orders, there have been significant developments at the EEOC.

President Trump fired two Democratic commissioners and installed Republican commissioner Andrea Lucas as the acting chair of the EEOC.

Lucas stated, “my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”

She also stated, “[f]ar too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination … In the words of Justice Clarence Thomas … ‘two discriminatory wrongs cannot make a right.’”

The EEOC and Department of Justice recently issued a joint guidance explaining what the agencies regard as unlawful DEI programs.

The guidance advises workers on how to recognize and report discriminatory DEI programs, and how to file a discrimination charge with the EEOC.

The guidance also explains that federal law protects all workers and not just individuals who are part of a “minority group.”

Implications for Employers: In light of these developments, employers should review and potentially revise DEI programs and initiatives to ensure compliance with the executive orders.

Employers should pay particular attention to any programs or policies that express a preference for individuals based on any protected category. Some examples of programs/policies that employers should review include: 

• Internships, fellowships, and mentoring programs that are exclusive to or targeted towards certain genders, races, or other protected characteristics;
• Employee resource/affinity groups that are only open to certain races, genders, or other protected characteristics;
• DEI training that may give rise to a colorable hostile work environment claim;
• DEI targets or goals based on race, gender, or other protected characteristics;
• Linking compensation or performance reviews to achieving certain DEI objectives;
• Diverse slate hiring or promotion practices;  
• Requiring a certain number of board members to be of a certain gender, race or other protected characteristic; and
• Diversity programs that use race, gender or other protected characteristics as a factor in selecting suppliers or vendors.

Employers making changes to DEI programs should be prepared to inform employees, clients, and other stakeholders about the reasons for the changes and the employer’s ongoing commitment to equal opportunity and non-discrimination. 

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About the authors: Vincent Farisello is a partner with Carmody Torrance co-chairs of the firm’s Labor & Employment Group. Nick Zaino is a partner with Carmody Torrance and a co-leader of the firm’s Business Services Group.