Dive brief:
- The White House issued an executive order Tuesday ordering agency heads, in cooperation with the attorney general, to submit a report by May 21 with recommendations to “encourage the private sector to end discrimination and unlawful preferences, including DEI” .
- According to the order, the report should include key areas of concern within each agency’s jurisdiction; the “most egregious and discriminatory DEI professionals in each sector of concern”; steps or measures to deter DEI, including “up to nine potential civil compliance investigations”; potentially appropriate litigation approaches; and possible regulatory action or sub-regulatory guidance.
- The order also immediately revoked several executive orders from the Biden administration that apply to DEI across the government and among federal contractors and subcontractors.
Diving knowledge:
Trump’s executive order, titled “End Unlawful Discrimination and Restore Merit-Based Opportunity,” expands his initial focus on federal diversity initiatives to the private sector and more, signaling to the business community that DEI initiatives will be under close scrutiny by the new administration.
Lawyers and courts have been carefully considering the legality of DEI programs for several years, as these programs exploded in both size and scope after the 2020 racial reckoning. Generally speaking, DEI has not been found to violate the civil rights law, the focus of attention. of Trump’s executive order. An attorney told HR Dive in 2022 that diversity initiatives that does not involve employment decisionssuch as encouraging a wide range of applicants to apply, they do not create much potential for legal action, for example.
But other practices may be more questionable. In a December letter from the US Department of Labor’s Office of Federal Contract Enforcement Programs to the conservative advocacy group America First Legal Foundation about Southwest Airlines’ DEI practices, the OFCCP acknowledged that its regulations do not they allowed.”quotas, preferences or reservation”, for example. The agency did not say it found the airline violated those policies.
It remains to be seen whether and how the Trump administration may expand the interpretation of the legality regarding DEI practices. America First Legal has taken an aggressive approach to corporate DEI in recent years, and its founder Stephen Miller reports close to the administration — perhaps predicting an onslaught of investigative activity and legal action. Many AFL cases remain pending, while at least one was fired by a federal judge.
However, employers may want to review your DEI approach with an attorney to consider all potential claims and ensure compliance with existing civil rights laws, attorneys have previously recommended.
