Among the flurry of Executive Orders issued by President Trump this week was one that may have direct implications for private employers — or at least attempts to.
The Order, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” is certainly unique in its nature.
It revokes an executive order that has been understood to be a core principle of our federal government since President Johnson — namely prohibiting discrimination by federal contractors and encouraging affirmative action.
While this is striking and unprecedented, the underlying laws and regulations prohibiting discrimination still remain in effect, though what role the Office of Federal Contract Compliance Programs will play still remains to be seen.
But the Executive Order also seems to go into uncharted territory in other ways. In one unique provision, it will require agencies that issue federal funding grants to seek from those companies a certification “that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
What does that mean exactly?
This is where lawyers need to tread carefully because the answer is we really don’t know yet. After all, employers have been using DEI programs for many years without issue. And there are not many DEI programs that “violate Federal anti-discrimination law” that you can really point to. What types of programs would now suddently violate the law? Implicit Bias training? Attending job fairs at HBCUs?
That remains to be seen, but this brings me back to the title of this post.
Companies have provided employees with anti-harassment training for several decades now, with some falling under the purview of DEI executives. These trainings are, in fact, mandated by several state laws. So would these trainings somehow violate Federal anti-discrimination laws?
That still seems unlikely. The U.S. Supreme Court has articulated that anti-harassment trainings should be part of an employers’ defense to sexual harassment claims with one case noting that making employer liability contingent “in part on an employer’s effort to create [antiharassment policies and effective grievance] procedures, … would effect Congress’ intention to promote conciliation rather than litigation in the Title VII context.”
But that may not be the end of the story. The EEOC has already telegraphed that it’s going to turn some of the enforcement of laws on their head by saying that one of its new priorities “will include rooting out unlawful DEI-motivated race and sex discrimination.”
It’s certainly possible (likely?) that the EEOC may choose to investigate and ultimately bring claims against some private sector companies to test the waters.
For now, there’s no reason that employers should stop any anti-harassment training. As I noted earlier, these type of trainings are required by various state laws and the trainings provide employers with a defense in case a lawsuit is brought against it.
As for various DEI initiatives, many companies such as Microsoft and Costco are already drawing lines in the sand indicating that they are not rolling over to threats.
The next battle lines are being drawn. Employers need to stay vigilant and stay on top of this rapidly developing area.