Immediately after being sworn into office, President Trump signed an Executive Order revoking Lyndon Johnson’s Executive Order 11246 which prohibited federal agencies and contractors from discriminating on the basis of race, religion, sex, age, disability, and other protected classifications, and which required those contractors to take affirmative action to ensure equal opportunity. Under Trump’s Executive Order, federal contractors will no longer be required to maintain diversity efforts or use any type of affirmative action in hiring and other employment practices.
Trump’s Executive Order comes just a little over a year after the US Supreme Court held that Harvard University and the University of North Carolina’s affirmative action policies taking race into account in admission decisions were unconstitutional because they were unfair to white and Asian applicants.
While both the Trump Executive Order and the Supreme Court’s ruling signal the demise of DEI and affirmative action policies both in the workplace and in higher education, they do not eliminate the Constitutional requirement that employment decisions be made on a non-discriminatory basis. That includes hiring, promotion, compensation and other decisions. Trump’s Executive Order does not, and cannot, allow employers to ignore the discriminatory effects of their actions or engage in discriminatory practices. The equal protection provisions of the 14th Amendment to the Constitution are not trumped by Trump’s Executive Order.
With that, it is recommended that employers and entrepreneurs maintain anti-discrimination policies reflected in their employee handbooks and other materials, continue to prohibit joking, horseplay, and other conduct that can be interpreted as discriminatory behavior, continue to investigate complaints of discrimination in the workplace, and appropriately discipline employees who engage in workplace discrimination.