Donald Trump has signed numerous executive orders in just one month that significantly affect employment practice. These include orders to eliminate Diversity Equity and Inclusion (“DEI”) Programs in the private sector, to replace gender with sex on federal forms, and to try to confirm two sexes – male and female for federal law purposes. The purported motivation, says Trump, is to end the promotion of “gender ideology,” to protect women, to enforce women’s sex-based rights in employment, and to return to workplaces to meritocracies.
The Equal Employment Opportunity Commission (“EEOC”) which enforces federal anti-discrimination laws, including Title VII, has taken in its own steps to change the employment landscape. The EEOC announced at the end of January the following actions by the Acting Chair:
- Prioritization for agency action (investigation, enforcement, and litigation) “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work;”
- Ending the use of the “X” gender marker during the intake process for filing a charge of discrimination;
- Review of the EEOC’s “Know Your Rights” poster which describes employees’ rights under ant-discrimination laws and which covered employers are required to post in their workplaces;
- Removal from the EEOC’s websites of materials promoting gender ideology; and
- Promoting the elimination of the Enforcement Guidance on Harassment in the Workplace, including specifically its discussion of harassment on the basis of gender identity.
With changes to the rules seeming to happen so quickly, employers may not know what they should do to respond. Many employers may believe that they should act swiftly to change their workplace policies in response to the developments in Washington. Target and Meta, for example, have already ended long- standing DEI programs used at their companies to promote a workforce varied in race, color, and gender. But, as always, let caution be the word. Discrimination remains unlawful and the legal landscape may not have changed as much as employers might think despite the frenzy of recent executive activity. Here is why:
Impact of Federal Legal Precedent. There is good reason to believe that some of the executive actions already taken may violate federal law. Executive actions that seek to erase gender identity discrimination, for example, may well violate a 2020 Supreme Court decision in Bostock v. Clayton County. The Court in that case held that Title VII explicitly protects against discrimination and harassment based on sexual orientation and gender identity. That said, the Supreme Court could reverse itself as it has already done multiple times recently. Nevertheless, at least for now, discriminating against employees on the basis of their gender identity violates Federal law. Employers should therefore avoid treating employees differently based on their gender identity or even stereotypes gender notwithstanding recent White House and EEOC actions.
Conflict with State Laws. Under our Federalist system, states have the authority to enact legislation providing stricter protections for their citizens than Federal law provides. Federal law, in a sense, sets the floor, not the ceiling, for the laws affecting employee rights in the workplace. Many states have chosen to exercise their powers accordingly. For example, anti-discrimination laws in New Hampshire and Massachusetts explicitly prohibit discrimination on the basis of gender identity. These laws remain in full force and effect. Employers operating in these 2 states, or any of the other several states which also explicitly protect against gender identity discrimination, must ensure they are complying with their applicable state laws irrelevant of what is happening at the Federal level.
Restrictions on Changes to EEOC Guidance. While the acting director of the EEOC is opposed to past EEOC guidance that encompasses gender identity discrimination, the acting director cannot unilaterally remove or modify the guidance on her own. The EEOC can issue official guidance only act by majority vote of its commissioners. This means that the Enforcement Guidance on Harassment in the Workplace, which passed by majority vote just last year, remains the official stance of the EEOC on this issue. For that to change, a new EEOC majority would need to vote to amend or remove them. That may well be coming. In the meantime, the acting director can and likely will direct the focus of the agency away from gender identify discrimination. Ironically, this tendency to ignore gender identity discrimination may actually end up leading to more, not less litigation.
Increased Litigation. Whether you agree or disagree with what is happening in Washington, the attempt to change workplace protections through executive action is bound to invite more lawsuits, if for no other reason than because the law is no longer clear. Transgender employees are likely to be more sensitive to perceived mistreatment at work. The orders against DEI initiatives, may also cause minority employees to feel employment decisions are being made on the basis of their race or color, if they are disciplined or terminated. Meanwhile, other employees whose views align with the administration’s may feel emboldened to engage in conduct that they would not have before. Some may become emboldened to harass a co-worker on account of gender identity or to act on arguably biased views with respect to a range of protected personal characteristics when making employment decisions. This could lead to an increase in disparate impact claims for employees, including on a class basis. All of this will likely lead to a greater number of employment-related lawsuits in the years ahead.
What does this mean for employers and what should they do now? The best thing for employers to do at this point is TUNE OUT THE NOISE. Employers should step back and be thoughtful before making any major, sudden changes to their workplace policies.
An important first step, employers must make sure they are familiar with the laws that apply to them. They should take steps to genuinely understand the current contours of Federal, state, and local law that affect employment practices.
Employers must also take steps to monitor developments to laws affecting employment matters. The legal landscape is shifting rapidly. Companies must make sure they know when and how the rules have changed and what is the likely outcome for that change going forward. If they do not already have trusted legal counsel, now may be a good time to find it.
Employers also must continue to avoid unlawful practices. Despite the shift in Federal policies, treating an employee differently on the basis of sex, race, color, disability, religion, gender identity, or on any other protected class remains unlawful under both federal and state law. Retaliating against people who report concerns about such conduct also violates state and Federal law. If employers allow this type of conduct at work, employers should expect to have to respond to a lawsuit and face liability, regardless of what is happening in Washington.
Finally, companies should make choices about workplace culture based not just what the government says they should or should not do, but what their organizational values are. This may be a good time for employers to focus on concepts like decency, civility, and the connections shared by their employees, to guide their future policies and what they do and do not allow at work. Given the chaos that can inevitably be triggered by change, business leaders may just need to take a deep breath and be thoughtful about what kind of culture they want to promote in their workplaces, and make sure they treat all employees consistently and fairly without regard to personal characteristics. In the end, basic fairness will go a long way to combat any issue that may arise in the workplace and to comply with the law.