Presidential Executive Orders and The Workplace
Inauguration week yielded a flurry of presidential executive orders, including 26 on Monday, January 20, 2025, alone. Many of those orders seem to be creating buzz, if not serious and understandable confusion, about possible impacts on the American workplace. Below are some comments on two of those orders in regards to workplace policy and anti-discrimination laws.
Federal Recognition of Only Two Sexes
Monday, January 20, saw an Executive Order declaring that it “is the policy of the United States to recognize two sexes, male and female.” This may have significant implications for government agencies. For example, the Biden administration allowed citizens to select the gender-neutral "X" as a marker on their passports. However, as of Tuesday, January 21, a page on the State Department’s website that previously provided instructions on updating passport gender markers is no longer available.
In the workplace and as a general rule, Executive Orders cannot overturn state anti-discrimination laws such as California’s Fair Employment and Housing Act (“FEHA”), or federal Title VII for that matter. Both of those laws still protect transgender status, sexual orientation, and/or gender identity at work. See Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (USSC 2020) (interpreting Title VII’s sex-discrimination protections). Now is a great time to consider reminding managers and employees that these protections are still in place and that zero-tolerance policies against such discrimination must still be enforced.
Finally, it’s worth noting that this Executive Order directs the Attorney General to “immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in [Bostock] to sex-based distinctions in agency activities.” The BBK Labor & Employment group will be monitoring how court challenges to these Orders play out.
Ending Federal DEI, and Targeting Certain DEI Programs
On Thursday, January 23, another Executive Order ended federal Diversity, Equity, and Inclusion (“DEI”) programs and ordered all federal agencies “to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
Does this Executive Order call for the end of all private-sector DEI efforts? In short, no. The Order seems to target “race- and sex-based preferences under the guise of [DEI].” Race- or sex-based hiring preferences are currently illegal under federal Title VII and various state laws (such as California’s FEHA), meaning no DEI or similar program may incorporate such preferences. The Order includes a general directive for agencies to “enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” Some may misinterpret this language to be applied more broadly, but it appears intended to target only programs that involve illegal practices. For example, programs incorporating race-based hiring preferences still remain in jeopardy, just as they were before this Order was signed.
Public agencies should be aware that this Order may impact them more directly, as most if not all are recipients of federal funding and/or grants. Recipients of federal funds may be required to certify that they do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws. Agencies should review their DEI initiatives to ensure they strictly comply with federal civil rights laws and do not prioritize race, sex, or any other protected-class status over individual merit and aptitude.
To help ensure DEI programs can survive any scrutiny that may come along, all employers should consider the following: (a) seek legal review and advice if they are concerned about any aspect of their DEI program, and (b) remind managers to avoid misinterpreting any DEI efforts or policies as allowing hiring preferences or other adverse-actions at work. Notably, the Executive Order mandates federal agencies to identify potential civil compliance investigations for “publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, [state] and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.” Those entities should prepare for potential compliance investigations while anticipating updates and adjustments to their compliance obligations.
For more information, contact your BBK attorney or the BBK authors of this alert: Kurt Barker, Michael Travis, Kristin Allen and/or Stacey Sheston.
Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation, or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.