The new Trump administrative has issued a flurry of executive orders.  One recent executive order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” applies directly to private employers.  This order criticizes various public and private sector entities for adopting and using “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility” (DEIA),’ in violation of the nation’s civil rights law. 

The order directs all federal agencies to enforce the country’s longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.

The order directs the heads of all federal agencies to take action to advance the policy of individual initiative, excellence, and hard work as identified in the order in the private sector. The order also directs the Attorney General within 120 days to submit a report containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.  

In this report, the Attorney General is expected to identify the most egregious and discriminatory DEI practitioners in each sector of concern.  Each agency is expected to release a plan of steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences.  

As part of this plan each federal agency is required to:

1. Identify up to nine (9) potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.
   
2. Identify litigation that would be potentially appropriate for federal lawsuits or intervention, and identify potential regulatory action and sub-regulatory guidance, and
   
3. Identify other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
   

This order’s emphasis on the private sector has caused concern among private employers. It is important to note that while the federal government has been tasked with identifying problematic DEI programs, no action against any private employers has yet been taken. 

Furthermore, while the new administrative has a broad emphasis on deconstructing DEI programs, such programs are not inherently unlawful.   While private companies are encouraged to discontinue “illegal” DEI programs, the order does not provide any guidance regarding what determines whether a DEI program is “illegal.”  The order does not impose any new obligations or requirements on private sector employers beyond existing federal anti-discrimination requirements.

At this juncture, employers should review their DEI programs to ensure that they do not discriminate against any employees or applicants.  As long as the employer’s policies do not create an illegal preference based on the employee’s or applicant’s protected characteristics (including but not limited to race or sex),  the DEI program will not run afoul of the current law.  It is also important to note that this order does not change an employer’s obligation to comply with the Civil Rights Act of 1964.

We will continue to monitor this, and other executive orders, as they may affect employer handbook policies. As developments occur, we will provide you with updates. 

Should you have any questions or need assistance regarding the amendment to the law, please contact Ali Law Group.

HRtelligence was created by the team at Ali Law Group, LLC.  Should you have any questions or need assistance, please contact Ali Law Group.

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