From Diversity to Adversity: What the New Executive Orders Mean For Your Workplace and DEI Programs
In the wake of this week’s executive orders (EO), Ending Illegal Discrimination and Restoring Merit-Based Opportunity, impacting private employers, Ending Radical and Wasteful Government DEI Programs and Preferencing, affecting federal agencies and employees, I’ve been doing a lot of thinking.
Together, these orders represent a sea change as to what the current Administration would like to see in America’s workplaces—both in policy and practice.
Before talking about the content of these orders, which many of my employment law colleagues have done this week, and hat tip to my employment law partner Eric Meyer’s short and sweet summary here, I wanted to take a moment to set us straight about what some of these terms actually mean and address some common misconceptions.
Call it a moment, call it a step back. Words matter.
So, What IS Diversity And Inclusion, Exactly?
Let’s all be lawyers for a second and examine the “plain meaning” of some of the relevant language.
First, we have affirmative action. Affirmative action remediates historical wrongs by trying to eliminate the present effects of past discrimination. It is commonly known as a legal directive requiring government contractors to measure employment practices and build a workforce that reflects the actual community in which they work.
Diversity and inclusion are different animals entirely, though the same species.
Diversity refers to the components of a workforce; inclusion measures how fair and inclusive the interactions and practices are within the workplace.
A diverse workplace has individuals who represent different races, national origins, ethnicities, genders, abilities, sexual preferences, ages, interests, backgrounds, levels of educational achievement, socioeconomic statuses, and … you get the idea.
Diversity embraces cultural differences in the workplace, and, as such, come closest to reaching true parity.
Diversity and affirmative action are often confused.
A workplace that values diversity achieves it through awareness, education, and the recognition of cultural differences within the workplace and not just on changing the representation of various types of people in the workplace to fill a quota. It values the unique contribution that each employee can make, then creates an inclusive work environment where awareness of, and respect for, those of different cultures is promoted.
Inclusion refers to how employees working in diverse workplaces feel that they are treated—do they feel respected? Do they have opportunities within the organization to grow and succeed?
True diversity is not about statistics. While we all bring our own backgrounds and experiences to our workplaces, diversity is about having a wealth of different perspectives and experiences, benefitting the workplace with varying perspectives.
Why Put Diversity and Inclusion “Ahead of Ability”?
This is a common misconception, which ignores the concept of implicit bias.
Implicit bias is the natural human process of categorizing like objects together. It is the unintentional and unconscious judgment made based on pervasive stereotypes. Such cognitive biases can result in and perpetuate individuals’ implicit reliance on stereotypes.
Everyone has some form of implicit bias.
Let’s Get Back to These New Orders
Ok, here we go.
The EO aimed at private employers, and I had to explain this to both my daughters, instructs federal agencies to encourage private employers to overhaul their DEI programs. It tells private employers that if they persist with their DEI initiatives, the federal government will target them for engaging in unlawful practices.
Some, reading the tea leaves, eradicated their DEI programs in advance. Others, like this behemoth banking institution, doubled down, and publicly proclaimed its commitment to the organization’s DEI initiative, including a $30 billion racial equity program. This, despite shareholder pressure to abolish DEI.
The second EO requires all federal agencies to terminate their DEI programs and to terminate all DEI offices, positions, and “equity-related” grants or contracts. The magic words here are “grants” and “contracts.”
This EO does not just affect federal agencies as employers, but it impacts the many federal contractors and grantees of federal funds engaged in such “equity-related” work. All of those contracts and grants are likely to be canceled.
For real. The U.S. Department of Labor Notice says: “All [federal grant] awardees must immediately cease all award activities related to DEI or DEIA.”
Employer Takeaways
While it remains unlawful to discriminate against employees and job applicants based on their race, gender, age, national origin, sexual orientation, gender identity, religion, and other reasons, according to the EOs, the federal government will be targeting “DEI practitioners” that engage in “preferences.”
As I said in several different webinars in November or December 2024, I think we will see an increase in “reverse” discrimination claims, i.e., those by members of a majority class like Caucasians or individuals who are straight.
Stay tuned. Because the Supreme Court of the United States will soon decide Ames v. Ohio Dept. of Youth Servs., Case No. 23-1039, to determine whether those in the “majority” should be held to a different standard when alleging claims of discrimination.
Employers, in the words of the incomparable Bob Dylan, “the times, they are a-changin’.”