The Trump Administration has issued executive orders concerning employment discrimination that have created questions and uncertainty for HR professionals. While an executive order has the strength of federal law and directs federal agencies as to how they should enforce laws, they do not amend federal law or overturn court decisions since this can only be done by the Congress. Additionally, executive orders can be blocked by Congress either by revoking them, denying funding for their implementation, or by federal courts that can rule that an executive order exceeds the legal authority of a president. For example, two US District Courts have ruled recently that the executive order ending birthright citizenship was unconstitutional.
Executive Order 14173
This column will focus on Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” which contends that diversity, equity, and inclusion (DEI) programs can violate civil rights laws and that the federal government “is responsible for enforcing civil rights laws and should do so by ending illegal preferences and discrimination.” The executive order states that “individual merit, aptitude, hard work, and determination” should be the guide when choosing employees rather than race or sex. The executive order directs federal agencies to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
The executive order gives the attorney general 120 days to submit a report with recommendations for enforcing civil rights laws and taking steps to “encourage the private sector to end illegal discrimination and preferences, including DEI.” The report will include examples of the “most egregious and discriminatory DEI practitioners” in different sectors, litigation that the federal government could bring or intervene in, and potential regulatory action (keep in mind that during at least this fiscal year, a different executive order provides that any proposed new regulation must be accompanied by ten current regulations that will be eliminated).
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