Trump’s DEI Executive Orders Do Not Change Title VII

President Donald Trump’s executive orders (EOs) addressing diversity, equity, and inclusion (DEI) programs among federal contractors and private-sector employers do not supersede well-established workplace anti-discrimination law. However, experts have said that organizations should review their inclusion and diversity (I&D) practices and policies to withstand new federal scrutiny.   

SHRM CHRO Jim Link, SHRM-SCP, was joined by Tara Singh Param, a partner at Holland & Knight in Philadelphia, and Patricia Timmons-Goodson, the dean and chief academic officer of North Carolina Central University School of Law in Durham, N.C., during a Feb. 26 SHRM webinar to help employers navigate compliance with Title VII of the Civil Rights Act of 1964 amid changing federal directives on I&D.  

“The executive orders have introduced substantial shifts to inclusion and diversity within federal agencies and among federal contractors,” Link said. “These changes emphasize a merit-based approach and eliminate affirmative action obligations for federal contractors. Some statutory obligations remain, however, including tracking employment metrics for veterans and people with disabilities.” 

The White House has also directed the Department of Justice (DOJ) to investigate the private sector for what it characterizes as “illegal DEI.” U.S. Attorney General Pam Bondi issued a memo on Feb. 5 stating that the DOJ intended to begin its evaluation of enforcement mechanisms against private-sector companies. 

In the meantime, a federal district judge in Maryland temporarily blocked enforcement of several challenged provisions of the EOs while a lawsuit contending that the language in the orders is vague and overbroad plays out in court.  

According to a poll conducted during the webinar, only 4% of attendees said they’re very confident in their understanding of the EOs and how they intersect with Title VII. Fifty-seven percent said they are not confident at all, with the remainder falling somewhere in between. 

In addition, a Feb. 26 report from employment law firm Littler showed that over 50% of C-suite leaders said that they are worried about the risk of DEI-related lawsuits and government enforcement. Only 8% said they are seriously considering changing their DEI programs as a result of the executive orders.

What Has Changed and What Hasn't

The webinar panel first clarified an important ground rule: The EOs do not take the place of statutory law, such as Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. 

“The executive orders do not supersede, erase, or eliminate any federal laws,” Timmons-Goodson said. “Title VII has not been displaced. It is still the law of the land.” 

Param agreed, saying that the EOs cannot override fundamental obligations under Title VII. “It’s important to note that if you have an I&D program that was lawful under anti-discrimination laws before the executive orders were issued, it is still lawful. While the law hasn’t changed, how it will be interpreted has.”  

Experts believe that the Trump administration will take a broad view as to which DEI programs are considered illegal. 

Timmons-Goodson said that the EOs do not explicitly define illegal DEI, but “we can expect to see things like preferences and workforce balancing based on race or gender or other protected characteristics as being unlawful.” 

Param said that things to worry about include programs or practices that provide specific employment opportunities and benefits to certain groups over others.  

“We see that come into play with hiring and compensation initiatives or benefits that are based on race and sex, for example,” she said. “But that was also the case before the EOs were issued.” 

She added that this is the critical time to review and assess I&D programs and policies. “Now is the time to see which programs might fall under scrutiny and what small changes could be made to allow you to continue those programs in a way that complies with the executive orders. But first, understand your stance on I&D and determine your risk tolerance for these programs. Establish your guiding star.” 

The experts said that while I&D is not unlawful, there is now heightened risk associated with I&D programs and practices. As HR assesses hiring, promotion, and training policies, it is crucial to ensure that these practices do not unintentionally incorporate protected characteristics as factors for preferential treatment. 

“HR better make sure that they have a full understanding of their I&D programs,” Timmons-Goodson said. “Some may be risky. People will sue. They will contest things. A company must be comfortable with how much risk they are willing to take on.” 

She added that examples of risky actions include distributing resources to affinity groups; having hiring goals or quotas based on race, gender, or any other protected characteristics; and setting aside any grant funding for particular groups. I&D training could also be risky, especially if it is mandatory, she said. “Look at it closely. Be careful because some people may believe there is pressure to attend I&D programming even if it is not mandatory.”   

Param said that Title VII still supports voluntary diversity programs if they provide equal opportunity to all. “It’s really important to look at programs to make sure they do not exclude any groups because there will be increased scrutiny on these programs,” she said.  

Both experts advised against removing equal employment opportunity language from websites and policy handbooks.  

“We are in uncharted territory,” Timmons-Goodson said. “We’ll need to get comfortable with being uncomfortable for a while before this is settled.”