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Like many other things, equal employment opportunity (EEO) law seems to have changed dramatically since Inauguration Day. The key word here is “seems.”
Vianei Braun
Clearly there has been a shift. But upon closer inspection, the shift is not seismic.
What Changed?
Immediately after his inauguration, President Trump issued a series of Executive Orders affecting EEO law. The series included EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.
This caused a collective gasp among employment law practitioners because it rescinded a previous order which had governed anti-discrimination law for federal employees and contractors since 1965.
The new EO contains strong language regarding diversity, equity, and inclusion (DEI) policies, describing them as “an unlawful, corrosive, and pernicious identity-based spoils system.”
The EO’s mandates are aimed at federal contractors, most of whom promptly reviewed and revised their DEI policies.
The EO also has a section entitled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences.” There is uncertainty regarding how private employers should react to such “encouragement.”
What Stayed the Same?
The nation’s EEO laws, enshrined in federal statutes duly passed by Congress, remain untouched. The new EO acknowledges such, stating in its first sentence: “Longstanding federal civil-rights laws protect individual Americans from discrimination.”
Thus, the major anti-discrimination laws — Title VII, the ADEA and the ADA — continue to protect individuals from discrimination based on race, color, national origin, sex, religion, age and disability. Likewise, the work of the federal Equal Employment Opportunity Commission (EEOC) continues as usual, although the EEOC currently lacks a quorum and cannot issue new regulations.
What Should Employers Do Now?
For employers who are not federal contractors, the whirlwind of EOs and political chatter are more of a molehill than a mountain.
After all, anti-discrimination laws have been on the books for well over half a century. For better or worse, employers are used to having employment decisions scrutinized. Employers know their employment decisions must be based on merit, not on protected characteristics.
Nonetheless, there is a palpable shift and employers should take notice. The EEOC has a new information page on its website: “What You Should Know About DEI-Related Discrimination at Work.” There is a renewed focus on everyone being treated equally and based on merit alone.
Savvy employers should review their practices with this shift in mind. Suggested steps:
1. Review policies, website language, and social media posts regarding DEI
“DEI” has become a divisive term, and the practical solution is to use other terms. The term “diversity” carries far less baggage. In their book Making Differences Work, prominent authors Paul Sarvadi and Dr. Eli Jones suggest the terms “commonality, equality, and cohesion.” There is no need to use a divisive term in order to celebrate your workplace culture of diversity and belonging.
2. Review training programs
The new EEOC guidance states “Depending on the facts, an employee may be able to plausibly allege or prove that a diversity or other DEI-related training created a hostile work environment.” The content of workplace training programs should be scrutinized accordingly. Also, eligibility for training programs should not be based on a protected characteristic.
3. Review practices that segregate employees
Some companies have Employee Resource Groups (ERGs) based on protected characteristics. The EEOC’s recent guidance states that limiting membership in ERGs is unlawful. If a company has, for example, an ERG dedicated to Black employees, membership must be open to non-Black employees as well. Any practice that tends to segregate employees by a protected characteristic should be carefully scrutinized.
Vianei Lopez Braun is a shareholder in Decker Jones P.C. She represents employers in a wide variety of business sectors and provides litigation and administrative agency defense, compliance assistance, and practical advice. She is a regular contributor to Fort Worth Inc.