The first three plus months of the Trump administration have brought successive waves that seek to revoke long established underpinnings of U.S. employment laws protecting individual rights:
First it was the revocation of Executive Order 11246 from the Johnson administration, which enacted affirmative action and led to the range of business initiatives known as diversity, equity, and inclusion (DEI), coupled with an executive order declaring the policy of the United States to recognize only a binary construct of sex, and to reject gender diversity.
Second came an inquiry to 20 large law firms from the Equal Employment Opportunity Commission (EEOC), followed by a series of executive orders, each revoking government access and other privileges, for individual law firms. The executive orders often called out the law firms for legal matters they handled that offended the president personally, and also consistently accused them of using DEI initiatives in a discriminatory manner.
Third is a new executive order that seeks to revoke the disparate impact theory as a means of proving unlawful discrimination.
The one consistent theme has been an assertion of the rights of white, heterosexual men. In their name, the administration has trumpeted notions of equality, fairness, and discrimination prevention.
Because white, heterosexual men have historically been the most privileged, our employment law system has taken the least care to protect their legal interests. The laws prohibiting discrimination apply equally to all protected classes, including men, white individuals, and heterosexuals. Decades of initiatives, however, have sought to counter the predominance of this historically majority group in the workplace and open opportunities for a vast range of individuals with different demographics.
The current administration aims to stop that level setting approach, wherever it may occur. Philosophically, many employers have a different perspective, and that perspective is supported by existing laws. The philosophical distinction thereby also presents a legal conundrum for those organizations. Few relish the notion of being sued, and navigating the current legal landscape can feel like operating a ship without a rudder through stormy waters.
Because this is largely uncharted territory in employment law, we do not have all the answers or solutions. Our “DEI In Crisis” series approached the initial executive orders striking DEI, and broke down for employers their component parts, the varied risks they presented, and the employer actions that were largely outside their reach. The purpose of this series is similar, but considered through the new lens of disparate impact theory. Our approach is threefold:
- Explore the why – Part II of our series focuses on the origins of disparate impact theory and what may be driving the administration’s current attack.
- Assess the what and how – Parts III and IV look at federal laws and regulations, while Part V looks at state and local laws to consider what is gone already, what is targeted for revision, and how that might be effectuated.
- Consistently reflect back on the impact – Parts III and V particularly highlight what this means for employers, where the change is potentially beneficial to them, and what the guideposts are going forward.
By Tracey I. Levy
