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The prosecutor Neil C. Schur is a litigation and shareholder at the Philadelphia office in Anderson Kill. He is a member of the firm’s working and work group. Opinions are typical of the author.
After President Donald Trump Executive orders on diversity, equity and inclusionConstruction companies must examine their Dei policies and practices to formulate an action plan. Options include considering a change in politics, reaffirming a commitment to Dei or simply making a waiting approach and seat.
Neil C. Schur
Courtesy of Anderson Kill
The construction industry is historically dominated by homogeneous work forces and has struggled for decades to improve the representation of women and color people in their ranks, as well as, more recently, those who identify as a transgender or non -binary, both in hiring and promotions.
The share of workers who were women, black and Asian in 2024 were all smaller in the construction industry than in the United States work as a whole The Office of Labor Statistics.
The direct measures and formal policies that seek to alter this makeup can now attract the execution activity.
A focus on “illegal” of
Trump on January 21 executive orderDegree “to finish illegal discrimination and restore the merit -based opportunity,” focuses on government agencies and contractors. He directs the Federal Contract Compliance Compliance Program (in the Department of Labor) to stop promoting diversity, to responsible for contractors for affirmative actions and to prohibit the so -called “ balance of work force ” based on race, color, sex, sexual preference, religion or national origin.
Because the balance of labor is no longer allowed, contractors who want to do business with the federal government may have to modify or eliminate existing DEI programs.
It is important to emphasize that the order also directs the federal agencies to examine the preferences, mandates, policies, programs and illegal activities of the DEI of the private sector. He instructs the Attorney General and the director of the Office of Management and Budget that take “appropriate measures to encourage the private sector to end discrimination and illegal preferences, including Dei”.
Order orders each agency to carry out research on the civil compliance with publicly contributed corporations, large corporations or non -profit associations, foundations with assets of $ 500 million or more, associations of local and state lawyers and higher education institutions with endowments over $ 1 billion.
The most relevant government agency for the application of the Federal Employment Law is the Equality Employment Opportunities Commission. The recently designated EEOC President Andrea Lucas said that his priorities include “rooting the illegal race of race and sexual discrimination”.
EEOC has eliminated language by promoting what current administration considers Inappropriate gender ideology (The opinion that humans are not defined by their biological sex, but because of their “internal gender” sense) on the website and the internal and external documents of the EEOC, including web pages, statements, social networking platforms, forms and formations.
What measures are considered illegal?
Order does not prohibit all DEI cases, only “illegal” or “illegal”. But what does it mean, exactly?
The answer will surely evolve. At present, we know that educational, cultural or historical observations, such as the month of black history, the International Day of Holocaust Remembrance, or similar events, which celebrate diversity, recognize historical contributions and promote consciousness without implying in exclusion or discrimination is unlikely to be considered by the Trump administration as illegal.
Order also suggests that the Trump administration wants contracting, dismissal, promotion and compensation programs based on merits that provide equal access to opportunities and skills and do not give special advantages to one person or group on another.
Although a President’s legal authority to order the private sector abandoning the DEI practices is questionable, the order indicates, aloud and clear, the interpretation of the Trump administration that some DEI practices are themselves discriminatory and illegal. According to the order, I would probably be illegal would include:
- Quotas. For example, a policy that says that 30% of new hires must be women.
- Set-asids. For example, reserve a vacant position for someone other than a white male.
- Preferences. Examples would include giving a “plus” to a female or color person for its protected feature, even if it is an advantage.
While order involves an initial approach to larger and larger and public companies, institutions and organizations, medium-sized and even smaller companies should not be considered immune and can become goals. The scope of the administration’s scrutiny can also be extended to any industry, including construction fields.
Given the order and statements of the EOO, companies that retain the policies and practices of DEI may expect possible claims of individual employees and/or class actions that allege reverse discrimination, as well as a possible Government investigation.
At the same time, companies that abolish Dei can also expect private litigation from employees (probably colored and/or women) who claim discrimination. Either way, wait for one side or the other to fight against any way you choose.
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What should a contractor do? In view of this quickly changing landscape, we recommend contractors:
- Evaluate your risk tolerance with your stakeholders.
- Work with your lawyers to make an audit or evaluation of your DEI risk, which will be protected by the privilege of lawyer-client. This includes the evaluation of all initiatives, programs and policies related to DEI to ensure compliance with the current law and policy. Determine the steps to minimize the risk or at least to risk -you with your eyes wide open.
- Note that fair discrimination and job policies, procedures and training programs are still essential to complying with the laws of state and federal non -discrimination.
- Whether you make changes or not, carefully formulate a communications strategy. Perception of your position and actions can be extremely important to your employees.
- Prepare for the push of internal or external groups, and do it now, when you have time to reflect and not in crisis. Be ready to defend and explain why you did what you did but assume that the administration will examine your explanation.
- Train your Human Resources Department and managers in the policies, procedures and practices of your company after your review and evaluation.
