Following President Donald Trump’s recent executive orders changing diversity, equity and inclusion initiatives, organizations face a complex and evolving compliance landscape.
As businesses reassess their hiring, promotion and training policies, human resources professionals are calling “crucial” that they make sure these practices do not unintentionally incorporate protected characteristics, success factors for preferential treatment, thereby violating Title VII of the Civil Rights Act of 1964.
“The recent executive orders have introduced substantial shifts in the landscape of diversity, equity, and inclusion within federal agencies, but also the federal contractor workforce, as well,” Jim Link, the chief human resource officer for the Society of Human Resource Management, told some 24,000 people registered for a SHRM webinar on the topic. “These changes emphasize a merit-based approach and have eliminated certain affirmative action obligations for government contractors. Even amidst these changes, some statutory obligations remain constant.”
The webinar focused on understanding the new directives and analyzing the practical implications of the new policies on Title VII compliance efforts, along with what SHRM called the “heightened scrutiny and legal challenges” potentially coming in the aftermath of the orders.
The panel included:
- Link – In addition to being SHRM’s chief HR officer, Link previously held leadership positions at General Electric, the Pillsbury Company and Porsche Cars and, in his most recent role as CHRO for Ron Stock North America, led a global team of 150 HR professionals. He is an adjunct instructor and the executive MBA program at the University of Poznan in Poland.
- Patricia Timmons Goodson – Serves as the dean and chief academic officer of North Carolina Central University School of Law. Her professional career in North Carolina represents more than three decades of unflinching and powerfully effective public service.
- Tara Singh Param — A partner at Holland and Knight, Param is an experienced trial lawyer and trusted advisor who helps public and private companies navigate complex labor and employment issues.
The biggest question raised in the webinar was whether Trump’s executive orders invalidate the requirements of Title VII, which outlaws discrimination against a job seeker or employee on the basis of race, color, religion, sex (including pregnancy, sexual orientation, and gender identity) or national origin.
Timmons said the short answer to that question is “no,” pointing out that some of the language contained in the orders seems to reflect Title VII.
“Title VII still is the law of the land,” Timmons said. “In fact … there’s language in there that you might recognize as language from Title VII. An argument can be made that (the executive orders) acknowledge the existence of Title VII.”
Param agreed, pointing out that misinformation surrounding the orders increases what she called “the risk profile” particularly when it comes to DEI programs and initiatives.
Param pointed out the executive orders don’t change the legality of such programs.
“I think it is important to note that if you have a DEI program that was lawful under federal anti-discrimination laws before these executive orders, it still remains lawful afterwards,” she said.
Param said businesses should be concerned about whether DEI programs provide specific employment opportunities or specific benefits to certain groups over others that might clash with Title VII.
That comes into play, she pointed out, when considering things like hiring opportunities, compensation, other benefits that are specifically based on race, color, religion, sex, and national.
“It’s also important to note that this has been the case even before the executive order has been in place,” Param said. “It’s still been important to make sure that your programs don’t provide specific benefits that promote one group over the other.”
The executive orders surrounding DEI initiatives don’t change the fundamental law established in Title VII, but panelists pointed out companies still have to navigate potential risk to any programming they have that might uphold the values of the company, but that others might think of as DEI initiatives.
Goodson said the first thing business leaders must do is be knowledgeable about the executive orders that come into play. They also “better make sure that they have a full understanding of their programs,” the dean said.
“By knowing what you have and understanding the law, you’ll be able to do some things,” Goodson said. “The other thing that I would advise them to consider is make sure that you are comfortable with your company’s level of risk in connection with the various programs. We live in such a litigious society, if people want to sue, they’re going to sue. If they’re going to contest things, they’re going to contest them.
“And so a company must be comfortable with how much risk they’re willing to take on, how much are they willing to stand by the values that they’ve probably articulated since the inception of the company,” she added. “There’s a certain amount of courage that is required in life, and this particular area is no different.”
Param said it’s the perfect time, in the wake of the executive orders, for businesses that have DEI programs policies to have a review and, perhaps, even a legal assessment of those policies.
Param pointed out that, while the orders don’t fundamentally change Title VII requirements, potential interpretations of the orders could be affected, and that could come with a “greater risk with how we are running these programs.” “And while we might have had programs that we were less concerned about, now is the time to look to see whether they might be the types of programs that might be under scrutiny under this new administration,” Param said. “Whether there are even small changes that you can make as a company to allow you to continue to do those programs that you’re doing, but in a way that complies with the law and doesn’t create scrutiny under these executive orders.”
