DEI (Diversity, Equity, and Inclusion) v. Affirmative Action: They Are Not the Same
Recently, the terms DEI (Diversity, Equity, and Inclusion) and Affirmative Action have been thrown around as if they mean the same thing, but in reality, they are not. They represent distinct concepts with unique goals and approaches.
Affirmative Action is a legal policy created to address historical injustices and discrimination by providing opportunities to underrepresented groups. It involves initiative-taking measures to ensure that individuals from these groups have equal access to education, employment, and other areas where they have been historically marginalized. The primary focus is on creating opportunities and leveling the playing field for those who have faced systemic barriers. However, it should be understood that under this theory a lesser qualified person should not be chosen over a more qualified person. If implemented as intended, it would give an otherwise unavailable opportunity to a qualified person.
On the other hand, DEI encompasses a broader framework aimed at fostering an inclusive environment where diversity is valued, equity is ensured, and everyone feels a sense of belonging. Diversity refers to the presence of differences within a given setting, including race, gender, age, and more. Equity involves fair treatment, access, and opportunities for all, while Inclusion is about creating a culture where everyone feels respected and valued.
While Affirmative Action is often seen as a legal and policy-driven approach, DEI is more about cultural transformation and ongoing efforts to create a supportive and inclusive workplace. Both are crucial for building a fair and equitable society, but they operate on different levels and address different aspects of inequality. DEI initiatives, though can impact hiring, focus on the workplace and people in it. The intent is to embrace the collective, minimize bias and treat others in a respectful and understanding manner.
In further contrast, affirmative action relates to giving a preference to one over the other, even if the other is qualified. DEI is meant to impact a broader range of people and cultures by appreciating differences and encouraging deeper engagement.
Though affirmative action and similar preference policies have been banned or in certain cases unconstitutional, DEI programs are still very legal. It should be noted that despite the recent January 2025, executive order titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which aims to terminate DEI programs, it is only relevant to practices within the federal government. DEI programs in private companies, educational institutions, and other non-federal entities are still legal.
The Opening Act: Significant Developments in Trump’s First Two Weeks
During the first two weeks in office, President Donald Trump’s administration released many policies impacting employers in areas like immigration, labor, and workplace safety, and reshaping federal regulatory and enforcement policies regarding artificial intelligence (AI) and unlawful employment discrimination and harassment.
Here is a roundup summarizing the key provisions of the executive orders and other policies from the first two weeks of the new administration.
Quick Hits
Changes to immigration policy included stopping entry of refugees and restricting birthright citizenship.
The federal government now recognizes only two genders, male and female. This policy included removing previous guidance that protected LGBTQ workers from discrimination and harassment.
Immigration Policy
On January 20, 2025, President Trump issued an executive order (EO 14160) limiting birthright citizenship. The executive order asserts that children born in the United States on or after February 19, 2025, who do not have at least one lawful permanent resident or U.S. citizen parent, will not have a claim to birthright citizenship.
On January 23, 2025, a federal judge in Seattle, WA, blocked enforcement of this executive order in response to four states (Washington, Illinois, Arizona, and Oregon) seeking a temporary restraining order. Two weeks later, on February 5, a Maryland federal judge issued a nationwide preliminary injunction blocking the executive order in response to a request by five pregnant undocumented women who argued that the order is unconstitutional and violates several federal laws[SF1] .
A different executive order revisits and reviews the United States-Mexico-Canada Agreement (USMCA) and other U.S. trade agreements. The United States’ participation in the UMSCA makes the TN professional work visa available for citizens of Canada and Mexico.
A separate executive order aims to utilize in-depth vetting and screening of all individuals seeking admission to the United States, including obtaining information to confirm any claims made by those individuals and assess public safety threats.
Another executive order suspended the entry of refugees into the United States under the United States Refugee Admissions Program (USRAP). That order took effect on January 27, 2025.
A separate executive order tightens enforcement of border policies. That includes:
detaining undocumented people “apprehended on suspicion of violating federal or state law,” and removing them promptly;
pursuing criminal charges against undocumented people and “those who facilitate their unlawful presence in the United States”;
terminating parole programs for Cubans, Haitians, Nicaraguans, and Venezuelans; and
utilizing advanced vetting techniques to determine familial relationships and biometrics scanning for all individuals encountered or apprehended by the U.S. Department of Homeland Security (DHS).
LGBTQ+ Employees
On January 20, 2025, President Trump issued EO 14168, which states that the federal government recognizes only two genders: male and female. The federal government will no longer use nonbinary gender categories in compliance and enforcement actions.
On January 28, 2025, U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea R. Lucas rolled back much of the EEOC’s Biden-era guidance on antidiscrimination and antiharassment protections for LGBTQ+ employees.
On January 27, 2025, President Trump removed Democratic EEOC commissioners Charlotte A. Burrows and Jocelyn Samuels and discharged EEOC general counsel Karla Gilbride.
Labor
President Trump also took the unprecedented move of removing National Labor Relations Board (NLRB) Member Gwynne Wilcox, a Democratic appointee whose term was not set to end until August 2028. The president also discharged NLRB general counsel Jennifer Abruzzo before the end of her term and later tapped William Cowen, who was serving as the regional director for the NLRB’s Los Angeles Region Office (Region 21), as the new acting general counsel.
The discharge of the general counsel was expected after former President Biden discharged the general counsel who served during President Trump’s first term, which was upheld in the courts. However, the removal of a sitting NLRB member was surprising and leaves the Board without a quorum to hear cases. Former Member Wilcox has filed a lawsuit challenging her removal, which is likely to lead to a lengthy court case that could ultimately land before the Supreme Court of the United States.
Workplace Safety
The Occupational Safety and Health Administration’s (OSHA) proposed Biden-era rules on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” and the “Emergency Response Standard” appear to be on the chopping block following President Trump’s “Regulatory Freeze Pending Review” issued on January 20, 2025. The presidential memorandum directed the agency to refrain from issuing or proposing any new rules until a department or agency head designated by the president has had a chance to approve it.
Higher Education and Title IX
On January 31, 2025, the U.S. Department of Education announced that it would not enforce Title IX of the Education Amendments of 1972 in accordance with a 2024 Biden-era rule that had expanded the definition of “on the basis of sex” to include gender identity, sex stereotypes, sex characteristics, and sexual orientation, and mandated that schools allow students and employees to access facilities, programs, and activities consistent with their self-identified gender.
Instead, the department said it will enforce the protections under the prior 2020 Title IX rule. The change aligns the department with EO 14168 and follows federal court decisions that have vacated or enjoined the 2024 Title IX final rule, finding that it violated the plain text and original meaning of Title IX.
Artificial Intelligence (AI)
President Trump is also reshaping federal policy on artificial intelligence, moving away from the Biden administration’s focus on mitigating potential negative impacts on workers and consumers.
On January 23, 2025, President Trump signed EO 14179, “Removing Barriers to American Leadership in Artificial Intelligence.” The order states, “[i]t is the policy of the United States to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.”
The EO came after President Trump, on his first day in office on January 20, 2025, rescinded President Biden’s EO 14110, which was signed in October 2023 and had sought to implement safeguards for the “responsible development and use of AI.”
Next Steps
President Trump’s recent executive orders and other actions over the first two weeks in office have disrupted labor and employment law and created uncertainty for employers, at least in the near term. It remains to be seen what the lasting effects could be, particularly as it appears the administration has more changes in store. However, some of the executive orders and other actions are being challenged, or are expected to be challenged, in the courts, which could answer questions about the constitutional authority of the president and other statutes creating federal agencies. It is unclear what the outcome of the court cases will be.
False Claims Act Exposure in Focus: President Trump Signs Executive Order Targeting DEI Programs
On January 21, 2025, President Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “EO”), which aims to eliminate diversity, equity, and inclusion (DEI) policies and programs across the federal government and within companies that do business with the federal government.
Importantly, the EO revokes Executive Order 11246, which, since 1965, has mandated affirmative action in employment from government contractors and required implementation of affirmative action programs.[i]
Federal contractors and grant recipients have until April 21, 2025 (90 days from the issuance of the EO) to comply with the EO’s provisions.
Below, we summarize the False Claims Act (FCA) implications of the EO.[ii] Briefly stated, federal contractors and grant recipients, including certain health care organizations, should pay close attention to the EO’s required certifications since they directly tie to potential FCA liability premised on false certification of compliance with the federal anti-discrimination laws.
Key Provisions of the EO
Directs that federal contractors “shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation’s civil rights laws.”
Instructs the Director of the Office of Management and Budget to (1) review and revise, as appropriate, all governmentwide processes, directives, and guidance; (2) remove references to DEI and diversity, equity, inclusion, and accessibility (DEIA) from federal acquisition, contracting, grants, and financial assistance procedures; and (3) terminate all “diversity,” “equity,” and analogous mandates, requirements, programs, or activities, as appropriate.
Directs the head of each agency to include “in every contract or grant award” a (1) “term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of [the FCA]” and (2) “to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
Instructs the Attorney General, within 120 days of the EO (by May 21, 2025), in consultation with other agency heads, to submit a report containing a “proposed strategic enforcement plan” that outlines, among other things, “the most egregious and discriminatory DEI practitioners in each sector of concern” and “specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences.”
Pertinent FCA Background
Unlike other federal laws that are enforceable only by the federal government, the FCA is unique in that it also allows private whistleblowers, known as relators, to file qui tam actions on behalf of the government in exchange for a share of the recovery (ranging between 15 and 30 percent of the recovery). The FCA imposes mandatory per-claim statutory penalties that are adjusted annually (currently ranging from $13,946 to $27,894 for each false claim) as well as treble damages.
There are a variety of actionable theories under the FCA beyond the scenario where a company bills the government for products or services that were never provided. One such theory, known as “false certification,” occurs when a party certifies compliance with a required contractual provision, statute, regulation, or governmental program in connection with the submission of a claim.
In false certification cases, noncompliance with applicable legal requirements must be “material” to the government’s payment decision. Materiality is often a contested, focal issue in FCA cases. The U.S. Supreme Court clarified in Universal Health Services, Inc. v. U.S. ex rel. Escobar that the materiality standard is “rigorous” and “demanding” because the FCA is not “a vehicle for punishing garden-variety breaches of contract or regulatory violations.”[iii]
FCA Implications
The mandates set forth in the EO will require a clause in all contracts and grant awards with the federal government where the contractor or grant recipient certifies that it does not have any programs promoting DEI that violate any applicable federal anti-discrimination laws and acknowledges that such compliance is material to the government’s payment decision.
With the new certification and materiality requirements, whistleblowers are likely to be further incentivized to bring FCA actions on the belief that it may be easier to prove a violation. It is unclear how that will play out in the courts. For example, while the EO will require that contracts and grant awards contain a clause stating that compliance with the federal anti-discrimination laws is “material” to the government’s payment decision, that does not end the materiality inquiry. The U.S. Supreme Court in Escobar noted how “the Government’s decision to expressly identify a provision as a condition of payment is relevant, but not automatically dispositive.”[iv]
Additionally, it remains to be seen how uniformly courts will apply the “rigorous” and “demanding” materiality standard in FCA cases predicated on DEI programs while adhering to Escobar’s direction that “the False Claims Act is not a means of imposing treble damages and other penalties for insignificant regulatory or contractual violations.”[v] Indeed, federal contractors, particularly certain health care organizations, that submit many claims to the federal government could face billions of dollars in potential exposure—largely due to the FCA’s per-claim penalties—stemming from a particular program that was indisputably lawful prior to the second Trump administration and unrelated to the nature of the contracted items or services.
While it is not clear precisely which specific DEI/DEIA programs or initiatives would be prohibited, the Trump administration’s position is clear that contractors or grant recipients found to have submitted requests for payment while maintaining unlawful DEI programs could be subject to significant FCA liability.
Best Practices for Mitigating FCA Risk
DEI and DEIA initiatives, including policies, programs, and plans, should be promptly and carefully evaluated to determine whether they may violate federal anti-discrimination laws, as federal contractors and grant recipients will need to certify compliance with those laws. Remedial measures should be promptly implemented, as appropriate, to the extent any initiatives are likely to violate federal anti-discrimination laws.
Companies should monitor agency publications for guidance on which initiatives remain permissible under the EO. Courts are also expected to play an important role in clarifying the reach of the anti-discrimination laws, especially following the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, where it held that “agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference.”[vi] This is especially true here, where the new EO interpretation of DEI activities as unlawful is a radical shift from the Biden administration’s position as expressed in both guidance and regulations.
Documentation of compliance with anti-discrimination laws is essential. Records reflecting policy reviews, trainings, and remedial program changes, as appropriate, will be critical in the event of a government investigation or whistleblower claim.
Because the FCA’s anti-retaliation provisions prohibit adverse employment actions against employees for engaging in protected activity, which could include investigating perceived violations of the FCA stemming from unlawful DEI programs, anti-retaliation compliance protocols and training programs to address this heightened whistleblower risk are recommended.
While the EO is not binding on private-sector organizations that do not contract or do business with the federal government, the EO is still valuable insofar as it shows the Trump administration’s view that various DEI programs and policies may be considered illegal under the anti-discrimination laws.
Private-sector organizations should promptly review any DEI/DEIA plans, programs, and policies, as well as their affirmative action programs, to determine whether they contain any aspects that could be deemed unlawful under Title VII of the Civil Rights Act of 1964 or any other federal, state, or local civil rights law, and consider whether to take any action to modify such plans, programs, or policies, including the names of such plans, programs, or policies.
ENDNOTES
[i] Exec. Order 11246, 3 C.F.R. § 339 (1964–1965).
[ii] Members of our labor and employment team have prepared an employment law-focused analysis of the EO in this blog post.
[iii] See 579 U.S. 176, 194 (2016). More information on materiality and how courts have grappled with Escobar over the years is available in our prior blog post.
[iv] Id. at 178.
[v] Id. at 196.
[vi] See 603 U.S. 369, 392 (2024).
Employment Law This Week – How Will Trump’s Federal Changes Impact Employers? [Podcast, Video]
This week, we examine how the loss of a quorum at the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC), along with the rollback of affirmative action requirements for federal contractors, are creating significant hurdles for employers.
How Will Trump’s Federal Changes Impact Employers?
The regulatory environment for employers is undergoing significant changes. President Trump’s removal of an NLRB member, the NLRB’s general counsel, and two EEOC commissioners has left those agencies without a quorum, delaying decisions and creating uncertainty for employers. Meanwhile, the repeal of Executive Order 11246 has ended affirmative action requirements for federal contractors and grantees.
In this week’s episode, Epstein Becker Green attorneys Erin E. Schaefer and Courtney McFate provide clarity amid these shifts. Employers should prepare for procedural delays from both agencies and reassess their compliance obligations under Title VII of the Civil Rights Act of 1964 and state or municipal contracts in light of reduced affirmative action requirements.
Change Is Coming to Spain’s Minimum Wage, Visa Process, and LGBTQ Protections
In recent months, Spain has approved measures to streamline the visa process and better protect LBGTQ employees. It also has proposed raising the minimum wage and shortening the workweek.
Quick Hits
Spanish authorities are preparing to increase the minimum wage and shorten the workweek to 37.5 hours.
Spain’s government approved a measure to simplify the visa process.
Employers must take steps to protect LGBTQ workers from discrimination, harassment, and violence at the workplace.
Shorter Workweek and Higher Minimum Wage
On December 20, 2024, the Ministry of Labour and Social Economy published a draft law to reduce the workweek from 40 hours to 37.5 hours at the same pay rate. Anything above that amount would be considered overtime.
If the law passes Parliament, businesses and trade unions will be expected to comply with it by December 31, 2025. Companies will be required to maintain digital, real-time records of workers’ hours. Spanish law grants employees the right to disconnect, meaning the right to not respond to work-related emails and texts outside of work hours.
The Spanish government also has proposed raising the minimum wage to €1,184 per month in fourteen payments. If approved, this will take effect retroactively from January 1, 2025.
Changes to Visa Process
The Council of Ministers recently approved the new Regulation on Foreigners, which streamlines the process for immigrants to obtain work and residence permits. Initial visas will be valid for one year. Most renewals will last four years. The jobseeker visa, which previously lasted two years, has been reduced to one year.
The regulation will take effect May 20, 2025.
Protections for LGBTQ Workers
Under Royal Decree 1026/2024, employers in Spain with more than fifty employees must take steps to prevent discrimination, harassment, and violence against LGBTQ individuals in the workplace. Employers must provide adequate training on the rights of LGBTQ individuals, and written policies must prohibit discrimination in the workplace with specific references to sexual orientation and gender expression. Access to employee benefits, including paid leave, must occur without discrimination based on sexual orientation or gender expression.
This measure took effect on January 10, 2025. Employers that don’t comply may be fined up to €150,000.
Next Steps
Employers may wish to prepare to pay a higher minimum wage later this year and keep digital records of workers’ hours. If the reduced workweek is approved, some employers may wish to reassess their hiring and scheduling protocols to ensure that staffing levels are adequate. Some employers may face higher labor costs if both of those measures receive approval.
Employers may wish to review their policies, practices, and benefits to ensure they do not discriminate against LGBTQ employees. They may wish to provide additional training on the rights of LGBTQ workers and the workplace protocols for preventing and reporting harassment or violence.
Killer Mike Sues S&S Labor Force Over 2024 Grammys Incident
Killer Mike Sues S&S Labor Force Over 2024 Grammys Incident. Michael Render, 49, famously known as Killer Mike from the hip-hop duo Run the Jewels, has filed a lawsuit against the private security company S&S Labor Force, claiming unlawful detention during the 2024 Grammy Awards. The lawsuit, filed in Los Angeles Superior Court, alleges civil […]
DOJ Effectively Pauses Its Civil Rights Division’s Litigation, Which May Impact IER’s Pursuit of New Claims
The U.S. Department of Justice (DOJ) issued a directive to its Civil Rights Division, freezing all ongoing or new litigation. The specifics of the freeze are not clear; however, it appears to freeze new claims presented to the DOJ’s Immigrant and Employee Rights Section (IER).
Quick Hits
New and ongoing litigation at the DOJ’s Civil Rights Division is essentially frozen indefinitely.
The freeze could have implications for the Immigration and Employee Rights Section, which handles claims of citizenship discrimination.
Hidden among a flurry of executive orders, within the first week of President Trump’s second term of office, the media reports the DOJ issued a freeze memorandum to its Civil Rights Division, which is the arm of the DOJ that enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status, military status, or national origin. The memorandum reportedly freezes any ongoing litigation held over from the Biden administration, and it halts the division’s pursuit of any new cases or settlements. The Civil Rights Division is also tasked with enforcing voting and election laws. Although not confirmed, it is believed the action is aimed at freezing Biden administration’s focus on cases and claims involving discrimination and violence within police forces throughout the country, as well as cutting back on enforcement of existing voting rights laws.
What is unknown at this time is how this freeze will impact IER, whose role is to enforce the Immigration and Nationality Act’s (INA) prohibition on citizenship discrimination in the hiring, recruitment, and termination phases of employment. The INA also prohibits asking for more or different documents during I-9 processing during an employee’s onboarding. Any potential impact this purported memorandum has on IER is merely a consequence—and not a focus—of the freeze. What is also unknown is how this freeze may impact any ongoing litigation currently proceeding before the Office of the Chief Administrative Hearing Officer involving alleged violations of the INA.
President Trump’s pick for attorney general, Pam Bondi, has not yet been confirmed; however, the acting attorney general is James R. McHenry III, who directed the DOJ’s Executive Office for Immigration Review (EOIR) in President Trump’s first administration and served as EOIR’s chief administrative hearing officer in President Biden’s administration.
McHenry’s career has focused on immigration, which lends some insight into this latest freeze. Should Bondi assume the role of attorney general, the focus of the DOJ for the next four years will likely become clearer—particularly as to how it will handle allegations of citizenship discrimination in light of the administration’s heavy focus on immigration. This is an area employers should remain focused on in the next few months, with consideration given to reviewing internal policies and procedures to ensure compliance with the INA’s antidiscrimination provisions.
Next Steps
In the coming months, employers will want to remain focused and consider reviewing internal policies and procedures to ensure compliance with the INA’s antidiscrimination provisions.
Red Rover, Red Rover, Come on Over? Understanding Pet Policies in Community Associations
Many community associations have restrictions that limit and/or prohibit pets.
In general, as long as such restrictions are drafted clearly, the North Carolina Courts will uphold their enforcement; however, there are several factors community associations should consider when establishing and enforcing pet restrictions and policies.
What is a Pet?
The North Carolina Court of Appeals has defined a household pet as a domesticated animal kept for the pleasure of or relating to a family or social unit who live together in the same dwelling. Accordingly, unless your community association’s pet policy contains a specific definition of “pet,” the broad definition adopted by the Court of Appeals controls. Therefore, in order for a community association to successfully limit pets to those animals traditionally considered as pets, such as dogs and cats, it may need to consider amending its pet policy to clearly define the term “pets.”
Types of Pet Policies – Restrictive Covenants v. Rules and Regulations
Pet policies are typically found in the community association’s declaration of covenants, conditions, and restrictions (“CC&Rs”) or in duly adopted rules and regulations. These policies often limit and/or prohibit the number, size, and types of pets that can be kept within the community.
Community associations that choose to implement pet policies through rules and regulations need to carefully consider the scope of authority for rules and regulations granted by the CC&Rs. Typically, CC&Rs only grant the authority to promulgate rules and regulations over the common area, not an individual owner’s lot or unit. For example, a pet policy adopted by the Board of Directors can require pets to be leashed when in the common area and require pet owners to properly collect and dispose of pet waste from the common area. Unless the CC&Rs grant the Board of Directors rule-making authority over lots, regulations that limit and/or prohibit the number, size, breed, and types of pets must be specifically granted by the CC&Rs.
Be Cautions with the Fair Housing Act
The Fair Housing Act, codified at 42 U.S.C. §§ 3601-3619 (“FHA”), prohibits housing providers from discriminating based on race, color, religion, sex, national origin, familial status, and disability. While the FHA does not define “housing providers,” it is well settled by federal courts that the definition of “housing provider” includes community associations.
Under the FHA, an assistance animal is not a pet but an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability or that provides emotional support that alleviates one or more identified effects of a person’s disability. An assistance animal under the FHA may include any animal, such as a dog, cat, chicken, goat, bees, etc., and does not have to be specifically trained to provide any assistance. As a result, assistance animals include service animals and emotional support animals.
Consequently, a community association cannot enforce pet policies against assistance animals or emotional support animals. For a better understanding of the FHA’s impact on pet policies, please check out Home Owners Associations: Beware of the Fair Housing Act When Enforcing Pet Prohibitions and Restrictions.
Conclusion
Understanding how to properly adopt and implement pet policies is an important skill for all community associations; however, even more important is understanding those times when pet policies may or may not be enforced. Failing to understand these distinctions can lead to unintended consequences.
Analyzing President Trump’s “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government” Executive Order
On January 20, 2025, President Trump issued an Executive Order titled, “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government” (the “EO”). The EO declares that “[i]t is the policy of the United States to recognize two sexes, male and female.” The EO explicitly rejects “gender ideology,” which, according to the EO, includes the notion “that males can identify as and thus become women and vice versa” and “it is possible for a person to be born in the wrong sexed body.”
Key Provisions of the Executive Order
Aside from declaring that the United States will only recognize two sexes—male and female—the other key points in this EO are as follows:
Definition of Sex. The EO defines the term “sex” as a person’s “immutable biological classification as male or female.” This specifically excludes the concept of “gender identity,” which the EO deems subjective.
Sex-Based Distinctions on Federal Policies. Federal agencies are required to use the term “sex,” not “gender,” in all their policies and official documents in enforcing sex-based distinctions.
Government-Issued Identification Documents. Government-issued identification—such as passports, visas, and federal employment records—must reflect the holder’s biological sex as defined in the EO. This reverses the Biden administration’s policy permitting Americans applying for a passport to use “X,” along with the option for male or female, as a gender marker. Andrea Lucas, acting Chair of the Equal Employment Opportunity Commission (“EEOC”) announced in a recent press release that she has “[e]nded the use of the ‘X’ gender marker” for those filing charges of discrimination (“Press Release”).
“Privacy in Intimate Spaces” Designated for Women. The EO mandates that single-sex spaces designated for women, including women’s prisons and rape shelters, are designated by biological sex and not by gender identity.
Investigation and Litigation to Enforce Sex-Based Rights. The EO directs the Attorney General, Secretary of Labor, and EEOC to “prioritize investigations and litigation to enforce the rights and freedoms identified” in the EO. In the Press Release issued by Ms. Lucas, she also announced that one of her priorities for investigations and litigations “is to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”
Rescission of Prior EEOC Guidance on Workplace Harassment. The EO explicitly rescinds certain guidance issued by the prior administration related to transgender individuals and gender identity based claims. This rollback includes the EEOC’s guidance on workplace harassment—which contains numerous references to gender identity harassment and discrimination—and other policies directed at LGBTQI+ individuals.
Limitation on the Scope of the Supreme Court’s Decision in Bostock v. Clayton County. The EO directs the Attorney General to immediately issue guidance narrowing the interpretation of the Supreme Court’s decision in Bostock v. Clayton County—holding that “sex discrimination” under Title VII of the Civil Rights Act includes discrimination on the basis of sexual orientation and gender identity.
Implications for Private Employers
Employers should anticipate and address questions from employees, especially from LGBTQI+ employees and allies, regarding any policy changes. Employers with policies prohibiting discrimination, harassment, and retaliation on the basis of gender, gender identity, and gender expression can reassure their employees of the company’s commitment to a safe and inclusive workplace.
Given the EEOC’s stated priority to create “single-sex spaces at work,” employers may find themselves facing conflicting obligations under federal and state law. Employers should stay informed on the developments at the federal level. Such developments might include, for example, litigation instituted by the new EEOC over restroom access and biological sex—which Ms. Lucas indicated could be a priority. Employers must also remain mindful of their obligations under state laws that explicitly prohibit discrimination, harassment, and/or retaliation on the basis of gender identity and sexual orientation.
Employers should anticipate changes to the EEOC “Know Your Rights: Workplace Discrimination is Illegal” poster, which covered employers are required to post on premises. The poster is undergoing revision pursuant to the EO.
Employers should expect changes in reporting options for identification forms that include the sex of their employees. For example, it is possible that, in light of the EO, certain government forms may no longer permit employers to include non-binary or similar gender identity information of their employees.
What’s Next?
President Trump’s EO mandates that each agency report on their implementation progress within 120 days. For now, little is known about how agencies will comply with the EO. Although we expect various agencies to begin releasing administrative guidance comporting with the EO in the coming months. Given that some of the EO’s directives may be in conflict with established legal precedent, litigation challenging the EO is possible.
EEOC Acting Chair Issues Statement Announcing Commission’s Plans to Remove Gender Ideology and Return to Misson of “Protecting Women in the Workplace”
On 28 January 2025, the Acting Chair of the Equal Employment Opportunity Commission (EEOC or Commission), Andrea Lucas (Acting Chair Lucas) issued a statement announcing that the Commission is returning to its “mission of protecting women from sexual harassment and sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda.”
This statement followed President Trump’s issuance of Executive Order 14168 (EO 14168), which, among other things, directs federal agencies to enforce “the freedom to express the binary nature of sex and the right to single-sex spaces in the workplace” and remove all existing statements, policies, forms, communications, or messages promoting gender ideology. EO 14168 states that the federal government shall recognize only two sexes—male and female.
Acting Chair Lucas has already taken several actions to enforce the terms of EO 14168.
First, one day after President Trump issued EO 14168, she announced several priorities for the EEOC’s compliance, investigations, and litigation—one being to “defend the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work.”1
Acting Chair Lucas has also removed materials promoting gender ideology from the EEOC’s internal and external websites and documents. This review remains ongoing. She also began a content review of the EEOC’s “Know Your Rights” poster, which all covered employers are required to post in their workplaces, removed the display of EEOC employees’ pronouns in internal and external communications, and removed the “X” and “Mx.” gender markers from the Commission’s charge and related forms and intake process.
Acting Chair Lucas has indicated that she cannot unilaterally remove or modify certain gender identity-related documents, as doing so requires a majority vote of the full Commission. And notably, after President Trump’s unprecedented termination of two sitting Democratic EEOC commissioners on 27 January 2025, the EEOC lacks a voting quorum with only two of its five members in place—Acting Chair Lucas and Democratic Commissioner Kalpana Kotagal.
These documents include the Commission’s “Enforcement Guidance on Harassment in the Workplace” (issued by a 3-2 vote in 2024) (Harassment Guidance), which EO 14168 specifically requested be rescinded, as well as the EEOC Strategic Plan 2022-2026 (issued by a 3-2 vote in 2023), and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028 (issued by a 3-2 vote in 2023). Acting Chair Lucas voted against each of these documents. She has been particularly vocal about her opposition to portions of the Harassment Guidance that state that harassing conduct under Title VII includes “denial or access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity” and “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”
Looking Ahead
While Acting Chair Lucas has made clear the Commission’s priority to enforce the “binary reality of sex,” including by removing guidance and references to “gender identity,” this new priority may be in tension with current federal law. Indeed, in Bostock v. Clayton County,2 the US Supreme Court held that Title VII prohibits discrimination and harassment based on gender identity and sexual orientation. It is certainly possible that the Supreme Court could revisit this ruling and reach a different conclusion—as its makeup has changed since the Bostock decision. However, unless and until the court does so or Congress amends Title VII, employment discrimination against transgender and gender nonconforming individuals remains illegal under federal law.
Additionally, more than half of the states in the United States have laws explicitly prohibiting, or have interpreted other laws to prohibit, discrimination and harassment based on sexual orientation and gender identity. These laws remain in effect.
We are likely to see an increase in workplace disputes on this issue in the future—including disputes involving “single sex spaces” in the workplace, such as bathrooms and locker rooms—which the court specifically avoided discussing in Bostock, but are addressed at the state and local level. For example, guidance from the California Civil Rights Department provides that “[a]ll employees have a right to safe and appropriate restroom and locker room facilities . . . [which] includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s sex assigned at birth.”3 Additionally, according to published guidance, the New York City Human Rights Law requires that employers permit employees “to use single-gender facilities, such as restrooms or locker rooms, and to participate in single-gender programs, that most closely align with their gender, regardless of their gender expression, sex assigned at birth, anatomy, medical history, or the sex or gender indicated on their identification.”4
Employers may also see an increase in challenges to gender-identity-related policies and practices—including policies that permit or require employees to designate or use pronouns in communications to comply with state or local law,5 as well as an increase in religious accommodation requests related to such policies.6 Given the current conflicting legal landscape, employers should consider a review of any such policies with counsel to ensure compliance with applicable law. Moreover, with the change in federal guidance, states and municipalities may adopt additional regulations addressing gender identity protections in the workplace. Despite the shift in enforcement priorities, employers should continue to implement anti-discrimination, anti-harassment, and equal opportunity policies as well as conduct workplace trainings consistent with applicable law; and monitor developments at the state and federal level. Employers should also continue to emphasize workplace respect, civility, and anti-bullying expectations generally for their workforce.
There are likely to be many more developments in the coming days and weeks.
Footnotes
1 See, EEOC Press Release, President Appoints Andrea R. Lucas EEOC Acting Chair, January 21, 2025, https://www.eeoc.gov/newsroom/president-appoints-andrea-r-lucas-eeoc-acting-chair.
2 590 U.S. 644 (2020).
3 See California Civil Rights Department, Fact Sheet on The Rights of Employees Who Are Transgender or Gender Nonconforming, November 2022, https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/11/The-Rights-of-Employees-who-are-Transgender-or-Gender-Nonconforming-Fact-Sheet_ENG.pdf.
4 See NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102, (last updated February 15, 2019), https://www.nyc.gov/assets/cchr/downloads/pdf/publications/2019.2.15%20Gender%20Guidance-February%202019%20FINAL.pdf.
5 According to published guidance, the New York City Human Rights Law “requires employers and covered entities to use the name, pronouns, and title (e.g., Ms./Mrs./Mx.) with which a person self-identifies, regardless of the person’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the person’s identification.” See id.
6 It is important to note that following the US Supreme Court decision in Groff v. DeJoy, 600 U.S. 447 (2023), there is a heightened threshold for determining undue hardship for religious accommodation requests. See K&L Gates Legal Alert, US Supreme Court Unanimously Adopts Heightened “Undue Hardship” Standard in Title VII Religious Accommodation Analysis, June 30,2023, https://www.klgates.com/US-Supreme-Court-Unanimously-Adopts-Heightened-Undue-Hardship-Standard-in-Title-Vii-Religious-Accommodation-Analysis-6-30-2023.
NY DEC Proposes Environmental Justice-Focused Amendments to SEQRA and UPA—Potential Impacts on Project Permitting
On Jan. 29, 2025, the New York State Department of Environmental Conservation (DEC) proposed amendments to its State Environmental Quality Review Act (SEQRA) (6 NYCRR Part 617) and the Uniform Procedures Act (UPA) (6 NYCRR Part 621) regulations to integrate environmental justice (EJ) considerations into environmental reviews. These amendments, mandated by Environmental Conservation Law (ECL) Article 8, build upon DEC’s final Division of Environmental Permits Policy “Permitting and Disadvantaged Communities” (DEP-24-1), which replaced the draft DEP-23-1 and has guided DEC permit applicants in assessing disproportionate burdens on disadvantaged communities (DACs) since its finalization on May 9, 2024. However, the proposed regulations would expand the scope of these requirements beyond DEC-regulated programs by incorporating disproportionate burden assessments into SEQRA, which applies to all lead agencies conducting environmental reviews, not just DEC. These amendments also align with New York’s 2023-2024 environmental justice siting law, which strengthened EJ protections in state permitting decisions. By codifying and broadening these EJ considerations, the amendments seek to ensure that projects located in or impacting DACs do not exacerbate existing pollution burdens, potentially influencing permitting outcomes and project timelines.
Disproportionate Pollution Burden in SEQRA Determinations
The proposed rule adds a new criterion to the determination of significance under SEQRA: an action that “may cause or increase a disproportionate pollution burden on a disadvantaged community that is directly or significantly indirectly affected by such action” (6 NYCRR § 617.7(c)(1)(xiii)). Under the existing regulatory framework, government actions resulting in at least one significant adverse environmental impact warrants a determination of significance, triggering the preparation of an Environmental Impact Statement (EIS) on the proposed action. Under the proposed changes offered by DEC, a determination of significance may be warranted based on potential disproportionate burdens to an associated DAC, even in the absence of significant adverse environmental impacts, triggering the need to prepare an EIS. Thus, the question of what constitutes a “disproportionate burden” becomes paramount for applicants seeking government funding or approvals subject to SEQRA.
Mandated Cumulative Impact Assessments and DEC Assessment Tools
DEC’s proposed regulations also facilitate preparation of required disproportionate burden analyses. Agencies must now evaluate whether an action would result in an increased burden on DACs by considering “reasonably related long-term, short-term, direct, indirect, and cumulative impacts” (6 NYCRR § 617.7(c)(2)). The proposed rule updates DEC’s Environmental Assessment Forms (EAFs) to require applicants to analyze and disclose potential disproportionate pollution burdens on DACs (6 NYCRR § 617.2(l)). These changes apply to both the Short Environmental Assessment Form (Appendix A) and Full Environmental Assessment Form (Appendix B). The revised EAF requirements place a greater responsibility on project sponsors to conduct detailed environmental justice assessments before submitting applications, which could add to project planning costs and development timelines.
The Role of the Disadvantaged Community Assessment Tool (DACAT)
To facilitate the implementation of cumulative impact assessments, DEC has introduced the Disadvantaged Community Assessment Tool (DACAT), a screening tool designed to identify DAC census tracts at risk of increased pollution burdens. Utilizing data from the Climate Justice Working Group (CJWG) DAC map, DACAT compares disadvantaged communities to statewide and regional non-DAC benchmarks and flags census tracts with a 25% higher pollution burden score for increased scrutiny. Thus, this tool is intended to help applicants and lead agencies identify DACs with existing pollution burdens. Rather than assessing project-specific impacts, DACAT relies on available data to flag areas based on historical environmental burdens, ensuring a standardized approach. Additionally, the tool designates all Indigenous lands as DACs, aligning with the finalized DAC map created by the CJWG, though this approach may prompt discussions about its regulatory implications. The proposed use of pre-set percentile scores to identify pollution burden provides certainty but may also invite feedback during the comment process regarding its flexibility. DEC will need to balance these factors as it evaluates the tool’s implementation.
Increased Permitting Hurdles
While a project’s environmental justice impacts have been considered under SEQRA, the proposed regulations require a more fulsome review of impacts to the surrounding community by requiring that an applicant assess whether a project or action poses a “disproportionate burden” on a DAC and, if so identified, include mitigation measures or alternative project designs.
Additional Substantive EJ Obligations Contained in Amendments to the Uniform Procedures Act (UPA)
In addition to SEQRA, DEC is proposing amendments to its Uniform Procedures Act, 6 NYCRR Part 621 (UPA), which governs how the agency processes permit applications, to further integrate environmental justice considerations into New York’s permitting reviews. These changes expand the scope of required environmental justice reviews by formalizing how “existing burden reports” are prepared in connection with certain DEC permit applications, including air facility permits, water discharge permits and solid waste permits. This change is required by the 2023 amendment to ECL Article 70, enacted as Chapter 49 of the Laws of 2023, which mandates that permit applicants prepare an existing burden report where the applicable permit “may cause or contribute more than a de minimis amount of pollution to any disproportionate pollution burden on a disadvantaged community.” ECL 70-0118(2)(a). Applications for permit renewals and modifications are also required to prepare existing burden reports, though DEC may exempt the applicant from such requirement if it determines that “the permit would serve an essential environmental, health, or safety need of the disadvantaged community for which there is no reasonable alternative.” ECL 70-0118(2)(b). See GT Alert,“New York Regulator Releases Draft Policy to Implement Environmental Justice Provisions of NY Climate Law,” October 2023.
Pursuant to ECL 70-0118, DEC must consider the existing burden report when considering any new permit application and provides that the agency “shall not issue an applicable permit for a new project if it determines that the project will cause or contribute more than a de minimis amount of pollution to a disproportionate pollution burden on the disadvantaged community.” ECL 70-0118(3)(b). Neither the amended statute nor the proposed regulations define that level of pollution as greater than de minimis. For permit renewals and modifications, the statute and proposed implementing regulations would preclude DEC from issuing permit renewals or modifications when permit renewal or modification “would significantly increase” the disproportionate burden on the DAC. ECL 70-0118(3)(c) and (d).
The proposed regulations also emphasize community participation, requiring applicants to demonstrate how they will mitigate disproportionate pollution impacts and engage with affected communities. Under the proposed rule, applicants must “provide opportunities for meaningful community engagement” and incorporate public feedback into project designs (6 NYCRR § 621.4(f)). This provision introduces potential new legal and regulatory risks for developers, as failure to meet these standards could result in permit challenges or denials.
As proposed by DEC, the amendments to SEQR and UPA could present challenges to applicants seeking air, water discharge or solid and hazardous waste permits implicating non-de minimis impacts on DACs. However, the recent statutory changes, as implemented by the draft regulations, could also impact projects in or near that DACs that aren’t commonly understood as burdensome to a community. Although these proposed regulations attempt to clarify the process DEC will apply for preparing and considering existing burden reports, many permittees may find themselves in uncharted waters under the new regulatory framework.
For example, renewable energy projects such as solar farms or wind turbines are generally considered environmentally beneficial, yet under the proposed framework, their siting within or near a DAC may trigger heightened scrutiny. While these projects aim to reduce carbon emissions, they could still introduce localized environmental concerns, such as land use changes, noise, or other cumulative burdens, requiring additional evaluation. Similarly, infrastructure improvements, including road expansions or public transit enhancements, may face greater regulatory hurdles. Although these projects often provide public benefits, their potential to contribute to temporary construction-related pollution, increased traffic congestion, or altered community dynamics could necessitate a more comprehensive review process.
While the draft regulations seek to provide clarity regarding how DEC will assess existing burden reports, many permit applicants may find themselves navigating an increasingly complex regulatory landscape. As a result, projects that historically may not have raised significant environmental justice concerns could now be subject to more stringent review, adding new layers of uncertainty to the permitting process. See N.Y. Dep’t of Envtl. Conservation, Program Policy DEP 24-1: Permitting and Disadvantaged Communities (2024).
The EEOC Retires Guidance Protecting LGBTQ Workers and Others From Discrimination, Continuing the Rapid Remake of Federal Policy Through Presidential Action
As we have noted in recent days[1], upon returning to the Oval Office, the Trump Administration swiftly:
Sent the message that it will pursue an agenda of aggressive enforcement related to immigration and preventing undocumented workers from working in the U.S.;
Ordered federal employees to return to working physically from offices and froze all hiring for civilian employees, suggesting planned stripping of resources for federal agencies and other federal bodies (including those tasked with enforcing Equal Employment Opportunity-related rights (EEO));
Overturned a host of “harmful” executive orders passed during the Biden Administration, including executive orders seeking to protect workers against sexual orientation and gender identity or expression discrimination and to promote greater workplace safety requirements;
Overturned Executive Order 11246 and related amendments, ending a variety of federal policies and related requirements for federal government contractors that had been in place since the Lyndon Johnson Administration and now affirmatively prohibiting them from considering protected characteristics as part of employment decisions; and
Struck executive orders and presidential memoranda relating to equal employment opportunity, diversity, and inclusion efforts applicable to the federal government as an employer.
Notwithstanding the policies and potential future actions they portend, other than with respect to immigration enforcement, none of the foregoing changes summarized above apply to private employers that do not contract with the federal government — and with good reason. A presidential administration cannot on its own rewrite the equal employment opportunity statutory scheme woven through the federal fabric by laws like Title VII, the Americans with Disabilities Act, and the like. Changes to the basic scope of those laws can only come through legislative action (subject to presidential veto) and subsequent court interpretation.
But this certainly is not to say that the new administration is powerless to pursue the same policy bend portended by the changes mentioned above against private employers through its political and extra-statutory powers. And it would appear such indirect efforts to change the federal legal framework for EEO protections is underway.
In late January, the Equal Employment Opportunity Commission (EEOC) made several key removals of content from its online guidance resources — the website location where the EEOC publishes its views on what federal law should be interpreted to mean describing the federal government’s enforcement priorities under the framework of laws administered by the agency. The majority of these first guidance withdrawals pertain to LGTBQ worker protections, including the removal of several pages of resources relating to the United States Supreme Court’s 2020 decision in Bostock v. Clayton County, where the court recognized that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity. While removal of this guidance does not change Bostock’s definitive statement that Title VII covers sexual orientation and gender identity, its withdrawal surely indicates that enforcing Bostock’s mandate will no longer be a priority for the EEOC and for the individuals who control how the agency uses its limited resources.
The new Administration has so far made no official announcement on these changes. Instead, while guidance and other pages on Bostock and protections for LGTBQ workers were still on the EEOC’s website at the end of the Trump Administration’s first week in office, they have subsequently been taken down from the website in an apparent silent retirement.
On the other hand, the administration has not been silent on its recent personnel changes; last week the President removed two Democratic Party-appointed members of the EEOC before the expiration of their five-year terms, along with terminating the services of the Commission’s General Counsel. The move came just hours after the President also fired National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo and removed a Democratic National Labor Relations Board member. Both the EEOC and the NLRB are now presently without a quorum of members, handcuffing the agencies’ ability to undertake certain high-level enforcement functions.
In another development similar to the silent removal of EEOC guidance regarding LGBTQ protections, previously available content on the EEOC website raising concerns about how Artificial Intelligence (AI) tools can result in unlawful employment discrimination have now been removed. This would seem to track with two other executive order actions taken by the Administration shortly after the inauguration (one striking a 2023 order seeking to create federal oversight of AI, another indicating the administration’s plan to take a hands-off approach to use of AI). Two weeks into this new administration have already brought in a sea change in the world of labor employment. It seems a certainty that more is to come — along with state law reaction, legal challenges, and the political and social backlashes that have become the norm in recent years. Foley and our team of counselors will continue monitoring and reporting on these developments while doing our utmost to help navigate these troubled and shifting waters with practical, business-focused advice.
[1] Foley’s robust, cross-disciplinary team has created a “100 Days and Beyond: A Presidential Transition Hub” which will be regularly and swiftly updated to keep you apprised of changes covering not just labor and employment, but also legal areas like Artificial Intelligence, Antitrust & Competition, Environmental, Government Enforcement, Finance, and Technology regulation.