Just under 2 months into President Trump’s new term, the employment law landscape seems to be shifting monumentally. During his first days and weeks in office, Trump’s orders have left employers feeling adrift as they try to understand and implement the changes to non-discrimination employment practices. Although the future is uncertain, we can bring you up to date on the current situation and provide a suggested course of actions.
Let’s dive into the two with the greatest impact for employers, “Ending Radical and Wasteful Government DEI Programs and Preferencing” (EO 14151) signed on January 20, 2025, and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (EO 14173) signed on January 21, 2025.
EO 14151 directed “the termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government.” This EO called for:
- “Federal employment practices, including Federal employee performance reviews” to “reward individual initiative, skills, performance, and hard work” while not considering “DEI or DEIA factors, goals, policies, mandates, or requirements”
- Termination of all DEI, DEIA offices and positions
- Termination of all equity action plans, initiatives, or programs
- Termination of all equity-related grants or contracts
- Termination of all DEI or DEIA performance requirements for employees, contractors, or grantees
EO 14173 calls for all executive departments and agencies to:
- terminate “all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements”
- orders “all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities”
While some might argue that these EO’s are inconsistent with Title VII of the Civil Rights Act, Trump believes that affirmative action plans created quotas and encouraged “race- and sex-based preferences that can violate the civil-rights laws of this Nation.” He felt DEI programs “violate the text and spirit of our longstanding Federal civil-rights laws” and that “hardworking Americans who deserve a shot at the American Dream should not be stigmatized, demeaned, or shut out of opportunities because of their race or sex.”
Impact for Government Contractors/Subcontractors
The Office of Federal Contract Compliance Programs (OFCCP) acknowledged in a bulletin the revocation of EO 11246, Equal Employment Opportunity, which called for affirmative action in hiring. The OFCCP is no longer allowed to promote ‘diversity’ or encourage contractors\subcontractors to engage in ‘workforce balancing’ based on race, color, sex, sexual preference, religion, or national origin.
Contractors and subcontractors may continue to comply by preparing Affirmative Action Plans under previous requirements for 90 days (through April 21, 2025). Employers may also continue displaying the “Know Your Rights” employment poster, however, are no longer required to display it. A revised poster is expected.
The bulletin confirmed that “requirements under Section 503 of the Rehabilitation Act, 29 U.S.C. 793, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212, both enforced by OFCCP, are statutory and remain in effect,” Hiring goals and reporting for veterans and employees with disabilities are still legal, for the time being.
OFCCP Office Operations
On January, 24, 2025, the Acting Secretary of Labor, Vincent N. Micone, III, issued a cease and desist order halting all investigations and enforcement activity under EO 11246 as part of Secretary’s Order 03-2025.
On February 25, 2025, Michael Schloss, Acting Director of the OFCCP, stated that the agency will reduce its operations from 55 offices nationally to 4 and decrease the number of employees from 479 to 50, a 90 percent reduction. Of the remaining workers, about 20 would be investigators conducting nondiscrimination audits of federal contractors. This means that the 2,000 planned AAP Audits will be significantly impacted and the sole focus will be on veteran and disability employment.
Legal Challenges
On February 21, 2025, the Federal court for the District of Maryland temporarily blocked President Donald Trump from enforcing a majority of the January 2025 EO’s seeking to eliminate DEI initiatives. According to the California Labor & Employment Law Blog, the case, National Association of Diversity Officers in Higher Ed. v. Trump, Case No. 1:25-cv-00333, was filed on February 3, 2025, and seeked to block EO’s 14151 and 14173. The plaintiffs argue the EO’s unconstitutionally violate Fifth Amendment due process for vagueness, the First Amendment’s free speech clause. and the separation of powers. The Trump Administration will likely challenge this ruling.
Suggestions for Employers
- Monitor the OFCCP website, Society for Human Resource Management, and other trusted sources to stay current on these topics
- Review organization policies and procedures and determine if new wording is needed
- Consider finding ways to align merit with hiring, performance evaluation, and other HR initiatives to ensure the most qualified candidates/employees are selected
- Offer training and development opportunities to all employees
Sources:
https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2025/01/Secretarys-Order-03-2025.pdf
https://www.eeoc.gov/history/executive-order-no-11246
https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964
https://content.govdelivery.com/accounts/USDOLOFCCP/bulletins/3ce7fa5
By Samantha Brinkley, MA
