DEI AND EEO COMPLIANCE TRUMP ISSUES FAR-REACHING DEI EXECUTIVE ORDER The administration’s actions on diversity, equity, and inclusion (DEI) programs started right away, as President Trump issued a series of executive orders directing federal agencies to eliminate federal government DEI initiatives and “combat illegal private-sector DEI preferences.” Read more about the executive order here.
NEW LEADERSHIP AT EEOC The president grabbed control at the EEOC by installing Andrea Lucas as Acting Chair on January 21 and firing two Democrat Commissioners on January 28 in an unprecedented move. The two Commissioners are challenging their terminations in court but face an uphill battle. Read more about developments at the EEOC here. NEW EXECUTIVE ORDER TAKES ON DISPARATE IMPACT The president is aiming “to eliminate the use of disparate impact liability in all contexts to the maximum degree possible.”
EEOC ISSUES GUIDANCE ON UNLAWFUL DEI PROGRAMS To the extent that the executive order raised questions for employers, the Equal Employment Opportunity Commission (EEOC) issued guidance on March 19 on what constitutes “unlawful discrimination” related to workplace DEI. Key points included reminders about the broad scope of Title VII protections and the fact that there is no such thing as “reverse” discrimination. Read more about the guidance here. TRUMP TAKES ON GENDER POLICIES WITH EXECUTIVE ORDER In another early action, the president issued a January 20 executive order announcing that the federal government would recognize only two sexes while rolling back Biden-era EEO workplace guidance on transgender, gender identity, and LGBTQ+ discrimination. Read more about the executive order here.
Predictions for Next 100 Days... and Beyond
• In late June, the Supreme Court will rule that “majority-group” plaintiffs need only meet the same pre-trial evidentiary burden applicable to minority-group plaintiffs in Title VII claims. This will further fuel a rise in discrimination lawsuits filed by men, White employees, and other majority-group workers. • Given the potential conflict between Supreme Court precedent confirming that Title VII covers workers based on gender identity and transgender status and the Trump administration’s new position, we expect litigation to ramp up — especially related to hostile environment claims, bathroom access policies, and religious accommodation requests. • After courts uphold the terminations of EEOC Commissioners, the agency will start rescinding Pregnant Workers Fairness Act (PWFA) regulations that require employers to accommodate those who need time off or other workplace modifications for an abortion procedure.
EXPECT EEO-1 REPORTING – WITH NO OPTION FOR NON-BINARY Click here for what to expect according to recent administrative documents filed by the EEOC.
Sheila M. Abron Partner and Co-Chair, Affirmative Action and Federal Contract Compliance Practice Group Columbia sabron@fisherphillips.com
Regina A. Petty Partner and Chief Diversity Officer
Los Angeles / San Diego rpetty@fisherphillips.com
Ray Perez Of Counsel and Co-Chair, Workplace
Read more about this April 23 development here.
Jennifer B. Sandberg Regional Managing Partner Fort Lauderdale / Atlanta jsandberg@fisherphillips.com
Investigations Practice Group Columbus / Washington, D.C. rwperez@fisherphillips.com
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