Authors
Joshua M. Davis
Director, Boston
jdavis@goulstonstorrs.com+1 617 574 4110
Carla A. Reeves
Director, Boston
creeves@goulstonstorrs.com+1 617 574 3853
Erek M. Sharp
Counsel, Boston
esharp@goulstonstorrs.com+1 617 574 2215
Sonia Macias Steele
Counsel, Boston
ssteele@goulstonstorrs.com+1 617 574 0549
Sarah M. Eberspacher
Associate, Boston
seberspacher@goulstonstorrs.com+1 617 574 2249Related Expertise
During his first week in office, President Trump issued an unprecedented number of executive orders, including orders to eliminate diversity, equity, and inclusion (“DEI”) programs within federal agencies and government contracting. He also adopted a policy recognizing two unalterable sexes (rather than self-designated gender identity) in the enforcement of federal laws regarding sex-based rights, protections, opportunities, and accommodations. Several of President Trump’s executive orders, such as the order limiting birthright citizenship, have already been challenged on constitutional and other grounds. However, we anticipate that more orders will be issued as the new administration moves swiftly to implement its plans and policies.
This update from the Goulston & Storrs Employment Group is the first in a series of resources designed to assist private employers in navigating new legal territory in the coming months. It provides a breakdown of the latest executive orders, along with practical guidance on how to effectively approach them. Most importantly, we remind our clients and friends that our nation operates under laws, not pronouncements, and that the Constitution prevents the President from unilaterally revoking or changing many of these laws. While media coverage, conversations with colleagues and industry peers, and even the current administration may suggest otherwise, we encourage you to consult with legal counsel before making any decisions based on what you read or hear.
The Impact on the Private Sector
The executive orders issued last week are focused primarily on the operations of the federal government and its agencies. However, some contain policy statements, directives, and enforcement priorities that are expressly directed at DEI efforts in the private sector. Additionally, the recent appointment of Andrea Lucas, a vocal critic of corporate DEI efforts and the Biden administration’s interpretation of civil rights laws, as Acting Chair of the U.S. Equal Employment Opportunity Commission (“EEOC”), will have an impact on policies and enforcement trends going forward.
In short, it is reasonable to anticipate that this administration’s enforcement priorities will bear little resemblance to anything that has come before (even under the first Trump administration). Nevertheless, the law currently remains unchanged: it is unlawful to discriminate against anyone based on their membership in a protected class. Employers whose policies and practices do not discriminate against applicants or employees need not amend their policies and practices in response to the recent flurry of executive action.
1. Executive Order on DEI Initiatives
The executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” directs federal agencies (which include the EEOC) to “enforce our longstanding civil-rights laws and to combat illegal private sector DEI preferences, mandates, policies, programs, and activities.” (Emphasis added.) It further directs government agencies, with the assistance of the Attorney General, to make recommendations and strategic enforcement proposals designed to “encourage the private sector to end” what the order describes as “illegal discrimination and preferences, including DEI.” (Emphasis added.) The order also rescinds prior executive orders on affirmative action and nondiscrimination in federal contracting.
The broad language of this order has prompted concern among private employers about the legitimacy and sustainability of their DEI programs—likely an intended result of the order. Yet, the order does not and cannot make lawful programs unlawful. Well-conceived DEI programs do not discriminate by virtue of those programs. Instead, those programs operate to create a more fulsome collection of qualified job candidates and to build professional communities focused on collective success and individual opportunity. Such programs do not (and indeed may not) create “illegal preferences.” The Civil Rights Act of 1964 makes it unlawful to discriminate against anyone (including white people) on the basis of their race or other protected characteristics; this has been the law throughout the growth of DEI initiatives. Job decisions must be made for legitimate, non-discriminatory reasons. As long as an employer does that, it may continue its DEI efforts.
2. Executive Order on “Gender Ideology”
The executive order titled "Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government" establishes a federal policy of recognizing two unalterable sexes (male or female) and instructs agencies to enforce federal laws in a manner consistent with this policy. However, it also contains directives that impact the private sector.
For example, the order:
(1) directs the Attorney General to “issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964”;
(2) directs agencies with enforcement responsibilities under the Civil Rights Act (which includes the EEOC) to “prioritize investigations and litigation to enforce the rights and freedoms identified”;
(3) seeks to limit the application of the decision the U.S. Supreme Court issued in Bostock v. Clayton County (https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf), which extended protections against sex discrimination under Title VII of the Civil Rights Act of 1964 (the federal law prohibiting employment discrimination) to discrimination based on gender identity and sexual orientation; and
(4) orders agencies to rescind guidance documents inconsistent with the order, including the EEOC’s April 2024 Enforcement Guidance on Harassment in the Workplace.
The order depends on a false premise. The President may not, by executive order or otherwise, modify a statute or declare the meaning of a Supreme Court opinion. Under governing law, Title VII protects against discrimination on the basis of gender identity, transgender status, and sexual orientation. Unless and until Congress amends the Civil Rights Act or the Supreme Court reconsiders Bostock, the law is immutable. While federal agencies may be required to follow the dictates of this order, private employers remain governed by the law, which protects against exactly the kind of mandates the executive order contemplates. This will assuredly lead to litigation. In the meantime, unless and until the Court or Congress acts, private employers should continue to comport themselves in a manner consistent with existing law.
The guidance in this Advisory is cemented by the reality of parallel state protections that will be unaffected by any change to federal law. State anti-discrimination laws have historically offered broader protections than federal law. Even if federal law narrows, employers must be careful to comply with the laws of the states in which they do business.
Next Steps
The flurry of executive orders issued by President Trump created a great deal of noise, fueled by incomplete headlines, politics and pronouncements. But law is about statutes, regulations, and language. Before making any changes based on news reports or public discourse, employers should consult legal counsel to ensure compliance with the law and informed decision-making.
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