Within the first two days of President Trump taking office on January 20, he issued numerous Executive Orders. One of them, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” is aimed at “terminat[ing] all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” currently in place in federal agencies. The order states that these “diversity, equity, and inclusion” (DEI) programs, “violate the text and spirit of our longstanding Federal civil rights laws.” The Order also states that DEI programs put worker’s safety at risk “by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society.”
The Order revokes a number of long-standing executive actions, including Executive Order 11246 issued on September 24, 1965, which mandates federal contractors to comply with equal employment opportunity (EEO) criteria. In addition, the Order requires the Office of Federal Contract Compliance Programs within the Department of Labor to cease promoting “diversity” and allowing federal contractors and subcontractors to take “affirmative action.” Parties to federal contracts and recipients of grant awards also must affirm that they do not operate any DEI programs.
Not surprisingly, the new Order targets private sector DEI programs, too. It requires 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.” The report must include a “strategic enforcement plan” that, among other things, requires identifying “the most egregious and discriminatory DEI practitioners,” and requires the federal government to consider initiating “potential civil compliance investigations” of specified entities, such as publicly traded corporations and foundations with $500 million or more in assets.
The Order does not cover lawful public and private sector employment and contracting preferences for veterans, and specifies that it does not infringe on public agencies’ and federally-funded educational institutions’ practice of free speech under the First Amendment. Nonetheless, we all expect a number of legal challenges to the Order.
In the meantime, employers with DEI programs should consult employment counsel to determine the risk of continuing with those initiatives. Of course, even in the absence of a formal DEI program, workplace decisions should be guided by legitimate business interests rather than stereotypes or biases. Simply put, employers can (and should) do the right thing without a DEI program that requires it.
You can read the Order here.