How Do Trump’s Executive Orders On Diversity Impact Private Employers?

In the early days of his term, President Trump has issued several sweeping executive orders eliminating diversity and equity programs in the federal government workforce. As a result, private employers may now be wondering – do these orders apply to us? For most private employers, the answer is no, at least for now. But we should continue to pay close attention. 

First, Title VII and Nevada’s fair employment practice laws have not changed, and all applicants and employees are still protected from discrimination in all aspects of employment. While President Trump is seeking to eliminate the concept of “gender identity” from the federal government, Nevada law expressly prohibits discrimination against a person’s “sexual orientation, gender identity or expression.” Remember that only Congress and the Nevada Legislature, respectively, can change these federal and state laws. 

Second, President Trump is rolling back affirmative action efforts and “diversity and equity” programs that may constitute or result in reverse discrimination or other forms of discrimination. His orders are focused on the federal government as an employer and federal contractors, but may eventually extend to other recipients of federal funding. For example, the January 21 order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” revokes Executive Order 11246 which requires affirmative action efforts by federal contractors and subcontractors. These employers, who should consult with counsel, are still required to follow Title VII, but may now be excused from affirmative action efforts required by EO 11246. 

The January 21 order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” does address the private sector in Section 4, but only encourages private employers to end “illegal DEI Discrimination and Preferences.” It does not require private employers to do anything. Instead, it directs federal agencies to advance President Trump’s position and requires the Attorney General, within 120 days, to recommend “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”  

All employers should carefully review the executive orders and their policies to understand what is going on and keep it in context as further changes may follow. We may see changes in federal agency investigation and enforcement priorities, or related new guidance or regulations. We may also see legal challenges to some of these new executive orders. In the meantime, focus on reassuring your employees that the law and your commitment to prohibiting discrimination in employment has not changed. 

We will keep you posted on developments and are available to answer your questions. If you would like to discuss your current diversity and equity efforts, please contact a KZA attorney.  

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.