Though much is still unclear about the precise impact of recent executive orders, statements from the EEOC and guidance issued by sixteen state attorneys general provide a sense of how states and federal agencies are interpreting them.

Executive Order Encouraging Private Employers to End DEI Programs

On January 21, President Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Among other things, the order requires all federal agencies to encourage private-sector employers to terminate DEI programs. It directs the heads of all federal agencies, with the assistance of the U.S. Attorney General, to submit reports that recommend “measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” In its own words, the order requires the report to identify:

• key sectors of concern within each agency’s jurisdiction;
• the most egregious and discriminatory DEI practitioners in each sector;
• a plan for specific steps or measures to deter DEI programs or principles (whether specifically ‎denominated “DEI” or otherwise) that constitute illegal discrimination or preferences—as a part ‎of this plan, each agency shall identify up to nine potential civil compliance investigations of ‎publicly traded corporations, large nonprofit corporations or associations, foundations with ‎assets of $500 million or more, state and local bar and medical associations, and ‎institutions of higher education with endowments over $1 billion;
• other strategies to encourage the private sector to end illegal DEI discrimination and ‎preferences, and comply with all federal civil-rights laws;
• litigation that would be potentially appropriate for federal lawsuits, intervention, or ‎statements of interest; and
• potential regulatory action and sub-regulatory guidance.‎

The order requires federal agencies to identify entities with DEI programs as potential targets for enforcement of civil rights laws. It is unknown whether the executive order will lead to targeted enforcement of employers with DEI programs, but the order indicates the new administration believes at least some DEI programs violate civil rights laws. Employers should review their DEI programs or policies to ensure they do not present a target for enforcement.

EEOC Statement on Recent Executive Order Regarding Gender and Sex-Based Discrimination

President Trump also issued an executive order regarding gender, and recent statements from the EEOC indicate the order will shape enforcement priorities. It requires the federal government to “recognize two sexes, male and female,” only. The order goes on to state “[f]ederal funds shall not be used to promote gender ideology,” and it directs agency heads to submit updates to the President regarding, among other things, “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of this order.” It is possible federal contractors or organizations who receive federal grants might lose federal funding if they “promote gender ideology.” At this point, it is unclear how the phrase “promoting gender ideology” will be interpreted.

We do know the EEOC is adjusting its enforcement priorities in response to this executive order. In a recent press release, the commission indicated it will prioritize compliance, investigations, and litigation in an effort “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.” If your organization is concerned about the effect of this executive order, consult with an employment attorney to review your policies and practices.

DEI Program Guidance From Sixteen State Attorneys General

On February 16, attorneys general from sixteen states, including Oregon and California, issued guidance concerning DEI programs in light of recent executive orders. The guidance argues that well-designed DEI policies are not “affirmative action” but instead focus on ensuring that all candidates have an equal opportunity.

The guidance sets forth several “best practices” for private employers. They are:

Recruitment and Hiring

• Prioritizing widescale recruitment efforts to attract a larger pool of applicants from a variety of backgrounds
• Using panel interviews to ensure multiple people are involved in a hiring or promotion recommendation, help to eliminate bias in the hiring process, and to ensure fair and objective decisions
• Setting standardized criteria for evaluating candidates and employees, focused on skills and experience to ensure that hiring is based on merit rather than subjective and biased judgments that can lead to discriminatory outcomes
• Applying accessible recruitment and hiring practices and protocols, including reasonable accommodations as appropriate

Professional Development and Retention

• Ensuring equal access to all facets of professional development, training, and mentorship programs that provide clear pathways for career growth; such programs not only minimize turnover rates, but also expand pipelines, and strengthen the overall organizational culture
• Setting up Employee Resource Groups (ERGs) to create an inclusive and supportive space where employees of particular backgrounds or common experiences feel valued and heard
• Conducting training on topics such as unconscious bias, inclusive leadership, and disability awareness to improve employee confidence and create a shared understanding around cultural norms
• Providing equal access to all aspects of employment, such as through reasonable workplace accommodations

Assessment and Integration

• Monitoring the success of policies and practices in attracting and retaining qualified talent, to establish an inclusive, accessible, and collaborative environment, and meet other related goals
• Creating clear protocols for reporting discrimination or harassment, and more general communication and feedback loops for employees to provide information about their experiences in the workplace
• Designating work groups that research, collaborate, pilot, and actively participate in crafting strategies that support more inclusive behaviors and practices
• Integrating principles and practices that promote belonging and unity into an organization’s everyday methods of doing business

Although the guidance sets forth the views of the attorneys general who signed on, it does not have the force of law. Therefore, employers should continue to evaluate their DEI programs according to state and federal laws and, if they are federal contractors, their contractual obligations to the federal government. The new administration has directed that federal contractors cannot, as a condition of their contract, have affirmative action plans other than those for disabled people or veterans. However, the guidance is a helpful reminder that the new administration’s executive orders cannot change federal or state law, and that federal and state laws do permit employers to take actions to ensure they have the best pool of qualified candidates.

We expect to see legal challenges to many recent executive orders, and will continue to monitor the ramifications of these and future executive orders, and their potential impact on employers.

Recent Executive Orders also have major impacts on federal contractors. See “Potential Impacts of Trump’s DEI Executive Order of SBAs, Alaska Native Corporations, and Tribes,” for our analysis of recent executive orders’ implications for federal contractors.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.