As you all know, employment law is an area that is constantly changing. That is why we do these updates twice a month. However, the pace of change under the Trump administration has been dizzying. In a matter of days, Trump issued several executive orders that significantly impact employment law. These executive orders will likely be challenged in court and the law will remain unsettled. Employers should buckle up and stay informed.
New EEOC Chair with New Agenda
Trump has named Andrea Lucas as the new chair of the Equal Employment Opportunity Commission (EEOC). Lucas has expressed her view of the mission of the EEOC stating that her priorities include:
· “…rooting out unlawful DEI-motivated race and sex discrimination”
· “…protecting American workers from anti-American national origin discrimination”
· “…defending the biological and binary reality of sex and related rights, including women's rights to single‑sex spaces at work”
· “…protecting workers from religious bias and harassment, including antisemitism”
· “…remedying other areas of recent under-enforcement"
Read her comments in entirety here:
President Appoints Andrea R. Lucas EEOC Acting Chair | U.S. Equal Employment Opportunity Commission.
The EEOC is composed of five commissioners who are appointed by the President for staggered five-year terms that are meant to protect the agency’s independence. When Trump first took office, the EEOC had three Democratic commissioners, one Republican commissioner and a vacancy he could fill. Trump would not have been able to replace a Democratic commissioner until 2026. However, Trump then fired two of the Democratic EEOC members before their terms expired. These removals may be illegal and likely will be challenged in court. Trump fires two Democratic commissioners of agency that enforces civil rights laws in the workplace | AP News. In fact, Gwynne Wilcox who was fired from the NLRB has filed suit challenging her dismissal. Trump also fired the Democratic General Counsel of the National Labor Relations Board (NLRB) and one of its Democratic members. Trump fires NLRB and EEOC Democrats, setting up legal fight : NPR. The EEOC and the NLRB now have no quorum, which makes it unclear how they will function. However, they are still accepting and investigating charges.
Given the changes in priorities, employers can expect more claims in the areas of reverse discrimination, gender identity issues, religious discrimination and religious accommodation.
Gender Identity in the Crosshairs
Trump has issued an executive order titled "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." The order mandates the federal government to recognize two “biological sexes” as determined “at conception.” Among other things, the order requires the EEOC and DOL to prioritize litigation related to these issues. A copy of the order can be found at the following link: Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government – The White House. The EEOC has also announced that discrimination claims (i.e. charges based on sexual orientation or gender identity) that may conflict with this executive order will be kicked from the state agencies to the EEOC for review. That likely means that these claims will not be investigated, and the complaining party will simply receive a right to sue letter.
The executive order conflicts with existing EEOC guidance and Supreme Court precedent. First, EEOC workplace harassment guidance provides anti-harassment protections for LGBTQ employees including a statement that intentionally misgendering an employee can be harassment. Because there is no quorum at the EEOC, this guidance is in limbo. It remains on the EEOC website but with this statement:
When issuing certain documents, the Commission acts by majority vote. Based on her existing authority, the Acting Chair cannot unilaterally remove or modify certain ‘gender identity’-related documents subject to the President’s directives in the executive order. Those documents include the Commission’s Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024); 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).
Whether or not an employer should abide by this guidance is unclear. Moreover, it is unclear whether EEOC guidance has any value regardless of content. Last year, the Supreme Court overruled Chevron deference toward agency interpretations. Loper Bright v. Ramondo, 603 U.S. 369 (2024). This means that in many instances, courts are no longer required to provide deference to interpretations of federal laws by the agencies who administer the laws, such as the EEOC, which administers federal anti-discrimination laws.
Second, the executive order potentially conflicts with the Supreme Court’s decision in Bostock v. Clayton County, 140 S.Ct. 1731 (2020). In Bostock, the Supreme Court held in a 6-3 decision that Title VII protects employees from discrimination based on sexuality or gender identity. The executive order seeks to limit Bostock, stating that:
The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.
If this issue were to come before the Supreme Court again, it could very well be reversed by the current Supreme Court, which has not shown much deference for precedent.
Employers can expect litigation around these issues including harassment, speech, religious accommodations and bathroom access. There are no easy answers. Stay tuned.
Religious Accommodations Are Getting Trickier
The issue of when and how an employer must grant religious accommodations has just become much more complicated. New EEOC Chair Lucas has stressed that she intends to focus on “protecting workers from religious bias and harassment.” In addition, the Supreme Court recently held that employers cannot deny religious accommodations unless accommodating the employee would result in substantial increased cost to the employer in relation to the employer’s particular business. Groff v. DeJoy, 600 U.S. 447 (2023). These two factors are likely to cause religious accommodation requests and claims to rise.
Another issue is religion and gender identity. The EEOC’s recent harassment guidance (issued under the Biden administration) stated that employers did not need to grant religious accommodations if the accommodations would create a hostile environment for other employees. For instance, employers did not have to grant an accommodation to allow an employee to deliberately misgender people because of their religious beliefs. But, as noted above, the EEOC guidance is in limbo.
As you may recall, the Utah legislature passed a law in 2024 giving employees free speech rights in the workplace including the right to not engage in “religiously objectionable expression.” Several members of the Utah House of Representatives have confirmed that this bill was passed in response to the EEOC’s guidance, i.e., to allow employees to misgender other employees when using certain pronouns is religiously objectionable.
For employers there will be no easy answers. Whether the employer sides with the employee with the religious accommodation request or the LGBTQ employee, there is a risk that the employer may be sued. Please consult with counsel regarding these tricky situations.
DEI Under Attack
Trump has declared war on diversity, equity and inclusion (DEI) programs which are intended to assist historically disadvantaged groups achieve fairness in the workplace. In an executive order titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” Trump ordered an end to all DEI in the federal government and termination of employees whose jobs involved DEI programs. Ending Radical And Wasteful Government DEI Programs And Preferencing – The White House. The order does not apply to contracting preferences for military veterans and individuals with disabilities.
In addition, Trump issued an executive order titled “Ending Illegal Discrimination And Restoring Merit-Based Opportunity.” The order ends federal affirmative action programs designed to ensure equal employment opportunities for women and minorities. However, the executive order does not apply to employment and contracting preferences for veterans. In particular, Trump revoked the executive order dating back to the 1960s which requires government contractors to establish placement goals for women and minorities if they are underrepresented in the workforce. Under Trump, contractors are now required to certify that they are not carrying out illegal "DEI initiatives." DEI is a very broad umbrella which includes many legal programs - some that will now be viewed as "illegal" by the new administration. Consult an employment attorney regarding what is legal and not legal. Following this executive order, the Department of Labor ended all investigations related to federal contractor discrimination
Private employers may be wondering what this means for them. It should be noted that these executive orders only apply to the federal government and federal contractors. Thus, most DEI programs remain legal for the time being.
However, while the orders do not apply to private-sector employment, the second order includes a section titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” which instructs federal agencies to identify up to nine potential civil compliance investigations related to DEI of publicly-traded corporations, large non-profits, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion.
Some companies have remained firm in supporting their DEI programs including Costco, Apple, Pinterest, Delta Airlines, Patagonia and Microsoft. Many other companies have abandoned their DEI programs. Ten Attorneys General (AGs) from Republican states (including Utah, Idaho and Montana) have targeted banks who have maintained their DEI and/or ESG programs. The targeted banks include Goldman Sachs, JP Morgan, Bank of America, Morgan Stanley and Citigroup. The AGs sent a letter to these companies threatening litigation if they did not abandon their DEI and/or ESG programs.
If you intend to maintain your DEI program, ensure that it is legal. It is time to review and update policies.
As a harbinger of potential litigation to come, the Tenth Circuit recently upheld the dismissal of a correction officer’s reverse discrimination case alleging a hostile work environment because he was subjected to DEI training. The court found that he did not show how the DEI training negatively affected his job. Young v. Colorado Dept. of Corrections, 94 F.4th 1242 (10th Cir. 2024).
ICE May Be Coming to Your Workplace
Trump has put enormous emphasis on deporting undocumented persons. He declared a national emergency at the Southern border, terminated a government app for scheduling asylum appointments and is attempting to end birthright citizenship (a Washington state federal judge has blocked enforcement of the order and six other courts are reviewing the order). Trump has also ordered the Department of Homeland Security to begin deportation raids. This will likely include many workplaces. Now is a good time to conduct an I-9 audit to ensure you are in compliance. You should also develop a plan for responding to a U.S. Immigration and Customs Enforcement (ICE) raid. Parsons Behle & Latimer provides these services.
