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Discrimination is Still Illegal
Editor's Note
Discrimination is Still Illegal
Employment law can be really confusing. It's easy to think that anti-discrimination laws only exist to protect marginalized people. But they protect everyone.
A very long time ago, and definitely longer than the statute of limitations, I screened resumes for the hiring partner at the law firm I worked for. I had been around long enough to have had my fill of pompous, blowhard, men who were jerks. So I immediately discarded any resume that had a roman numeral following the name. My reasoning was that if anyone was likely to be a pompous, blowhard jerk, it was someone with a name like Anthony James Madison Prescott, III.
My rule and practice of eliminating these candidates almost certainly had an adverse impact on white men (although I don't really know much about naming conventions in other cultures). But assuming I was tossing white guys' resumes in the trash, both my rule and practice were likely gender and race discrimination.
Conversely, if I had only selected resumes of people who had a roman numeral following their name, that would have eliminated almost all women and many people of color. That would also have been illegal gender and race discrimination.
The point is that anti-discrimination laws protect everybody. This means you cannot consider protected factors in employment decisions and it's not okay to discriminate against anyone.
Employment decisions should be made on more objective criteria that relate to the work, the organization, and the person's qualifications, experience, and abilities. But the reality is that there are lots of subjective judgment calls along the way.
I still go out of my way to avoid working with pompous, blowhard jerks. But now I wait for actual evidence before I categorize someone that way. It turns out that pompous, blowhard jerks come in all shapes, sizes, colors, and genders. I might have even acted that way once or twice—a very long time ago, and definitely longer than the statute of limitations.
This means that when we give people an advantage in the hiring process because of their race, gender, or other factor, it's potentially discrimination. And that's why affirmative action is so confusing and often misunderstood.
Affirmative action seeks to redress and mitigate historic systemic discrimination by encouraging employers to cast a wider net to recruit and consider qualified candidates in the entire human variety pack. The idea is to give people who can do the work and would be good at it a chance when they might not otherwise get one. DEI has the same goals and even broader approaches.
But no affirmative action program or DEI initiative has ever required, or even asked, employers to hire people who weren't qualified to do the work. Instead, it asks them to think bigger, be open and curious to new possibilities, try things they may not be familiar with, and give anyone who meets the qualifications an equal opportunity to be chosen based on what they can do.
That's not discrimination; it's how it's supposed to work.
Here's a good discussion of the new Executive Orders on affirmative action and how it affects federal contractors who, until now, were expressly instructed to cast wider nets and think bigger.
But nothing that has happened so far, has changed Title VII, the Rehabilitation Act (that applies to federal government employees), or state discrimination laws. It is still illegal to discriminate and will continue to be. Because anti-discrimination laws protect everyone.
- Heather Bussing
Trump Dismantles Key Affirmative Action and DEI Standards for Federal Contractors: Top 3 Takeaways
by Sheila Abron and Jennifer Sandberg
Many federal contractors and subcontractors have long been required to create affirmative action plans and have also promoted diversity, equity, and inclusion – practices that some see as necessary to create equal employment opportunities and others criticize as discriminatory. President Trump quickly delivered on his promise to unravel such programs late last night by revoking an executive order that mandated certain aspects of the affirmative action requirements, barring “illegal” DEI programs, and signing an executive order that promotes “colorblind equality” and merit-based opportunity. While there are still many unanswered questions about this new direction – and legal challenges are expected – here’s what federal contractors need to know now about this major shift in direction for the Office of Federal Contract Compliance (OFCCP) and how it may impact your operations.
1. Longstanding Affirmative Action Requirements Revoked
Employers who are federal contractors had been required to engage in affirmative action since 1965 under Executive Order 11246, which covers women and minorities. In this context, “affirmative action” means that federal contractors had to analyze their workforce data to determine whether goals for women and/or minorities should be set and to engage in good faith efforts to ensure they were providing equal employment opportunities for all.
Contractors measured equal employment opportunity (EEO) levels by comparing their current workforce to the availability of women and minorities externally (using local and/or national data) and internally (based on employees eligible for promotion). Where goals were established, federal contractors were required to make good faith efforts to cast a wide net to diversify the applicant pool with the goal of providing the best opportunity for diversifying the workplace. It did not, however, require employers to replace their merit-based selection processes, participate in quotas, or “set aside” jobs for women and/or minorities.
President Trump’s January 21 executive order revokes the 1965 order and replaces it with a directive for the OFCCP to immediately cease “holding federal contractors and subcontractors responsible for taking affirmative action.”
Practical Pointer: It’s important to remember that affirmative action in the employment context never allowed employers to make employment decisions based on protected characteristics, such as race and gender. So, that hasn’t changed. Federal contractors, and employers in general, are prohibited from taking race (as well as gender, color, national origin, and other protected characteristics) into account when making decisions related to hiring, promotions, terminations, and other terms and conditions of employment.
However, the new executive order will clearly impact federal contractor and subcontractor practices and reporting requirements and will likely alleviate some administrative burdens. While the details are not yet known, the order allows contractors to continue complying with the prior rules for 90 days, and we expect to learn more details from the OFCCP in the coming days and months. So, stay tuned.
2. OFCCP Barred from Allowing or Encouraging DEI Programs
The order also puts existing DEI programs on the chopping block and delivers on President Trump’s promise to “terminate DEI in the federal government.” DEI programs in the public and private sector will be impacted by this order. Notably for federal contractors, it bars the OFCCP from promoting “diversity” or “allowing or encouraging federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
Moreover, federal agencies were instructed to require every contractor and grant recipient to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
According to a White House fact sheet, the order “requires simple and unmistakable affirmation that contractors will not engage in illegal discrimination, including illegal DEI.”
The order also impacts private employers by directing federal officials to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”
Practical Pointer: Questions remain as to what constitutes “illegal” DEI, so you should watch for new developments from the OFCCP on regulatory changes. Work with your legal counsel to assist with revising policies and programs as needed and ensure your objectives and employee education efforts are in compliance with evolving rules.
As noted above, employers have been and are still prohibited from taking race, gender, and other protected characteristics into account when making employment decisions.
3. Veteran and Disability Affirmative Action Still Required
Notably, the new executive order does not end affirmative action requirements for covered federal contractors with regard to two laws aimed at protecting veterans—the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) and individuals with disabilities—Section 503 of the Rehabilitation Act. These programs are enforced by the OFCCP and require covered federal contractors to engage in affirmative action outreach efforts for protected veterans and individuals with disabilities, as well as creating affirmative action plans.
Practical Pointer: Federal contractors must stay the course as it relates to these obligations. Contractors should continue outreach efforts and anti-harassment obligations for protected veterans and individuals with disabilities.
What Should Federal Contractors Do Now?
- Keep Informed: Over the next 90 days, we expect to receive more information from the OFCCP about how this new direction will impact federal contractors and subcontractors.
- Continue Other Compliance Efforts: Federal contractors and subcontractors will continue to have obligations related to federal and state laws, such as EEO-1 and VETS-4212 filings, and state pay data reporting requirements (including in California), as applicable. Continue to participate in these required compliance filings.
- Track Legal Challenges: We anticipate that civil rights groups will challenge the new executive order, but these lawsuits may take considerable time to resolve, so you’ll want to understand your real-time compliance obligations and track any potential changes.
- Work with Legal Counsel: In this time of uncertainty, you should consider reaching out to your attorney to develop a game plan to comply with evolving requirements, especially if you have a pending audit before the OFCCP.
