Federal Employment Laws Remain In Effect. Trump Did Not Repeal the Equal Employment Opportunity Act. He Did Not Repeal the EEOC. Pregnant Employees Did Not Lose Their Rights.

However, federal employees and employees of federal subcontractors are impacted, and private employers' DEI programs (including paid leave policies) may disappear.

Trump issued an executive order terminating DEI programs in the federal government. The order is called “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

Let's unpack this order, because there is a lot of misinformation online. I’m seeing posts that he repealed the EEOC. That is not true. I’m also seeing posts that he stripped all pregnant employees of their rights. Also not true. It also does not mean that racism is now allowed at work again. However, there is certainly impact.

As with most legal things, there is a lot of nuance and complexity that cannot be summarized in one snappy quote. Make no mistake, I’m not saying, “Don’t panic, everything is fine,” because this is not “fine.” It’s a massive blow to employment protections and the advancement of civil rights, including the rights of women and mothers. But let’s be accurate about what’s happening so that we can make informed decisions based on facts, and advocate accordingly.

So let’s actually learn what this means and how it will impact us.

Law v. Executive Order

An executive order is not a law. An executive order is essentially a directive to a federal agency to implement different internal management terms and systems. These orders tend to only impacts federal employees and subcontractors who receive federal funding.

It’s Congress that passes and repeals laws for all Americans, including private workers. State legislatures also pass laws for their residents. All existing employment laws remain in effect (not just the Equal Opportunity Act, but the PWFA, PDA, FMLA, ADA, Civil Rights Act, etc). A President cannot repeal a law.

What are Employer DEI Programs?

Employer DEI programs are essentially affirmative action programs in the workplace setting to promote a fair and balanced cross-section of the populace. Examples; boardroom quotas to ensure there is a proportionate representation across gender, race, orientation. Hiring that takes into account ethnicity. Women's task forces. Motherhood support programs like paid parental leave, breastmilk shipping, on-site childcare. Etc.

What were the Federal DEI Programs?

The federal government (the largest US employer) had a few of these programs in effect:
- a Bill Clinton program ordering the fed gov to consider environmental and health impact on minority and low-income populations
- An Obama program encouraging recruitment policies to achieve a workforce from all segments of society
- An Obama order specifying trans and queer folks are protected from discrimination
- An Obama order providing guidance to the workforce regarding diversity
- An 1965 executive order, signed by President Johnson, prohibiting federal contractors from discriminating on the basis of race, color, religion, sex, or national origin.

This 1965 order is the big one that has people shocked, because it’s so old, and so foundational to the way we have engaged in employment practices. This is also the order that formed the basis of the 1972 Equal Employment Opportunity Act. This Act strengthens protections against employment discrimination on the basis of race, religion, sex, national origin. The law is still alive because the order is NOT the actual Act.

How does Trump’s Executive Order Impact these Programs?

The Trump order rescinds all of these previous orders by predecessor Presidents. So yes, that entire list.

The reason a lot of people are confused is because the order is called “ending illegal discrimination and restoring merit-based opportunity.” So everyone assumed all employers may now discriminate again. This is not true. From Trump’s perspective, DEI programs are discriminatory per se, as they take into account intrinsic characteristics like gender, race or disability in hiring, promotion and retention decisions. So from his perspective, the illegal discrimination he is attacking are the policies that help underrepresented workers. Put simply, the Trump administration believes anyone who is excluded from the support of these programs (usually white rich men) are unfairly disadvantaged and not given a fair shake.

Another reason people are confused is because the 1965 Johnson order formed the basis of the Equal Employment Opportunity Act. However, a President cannot repeal a Congressional law by executive order. The law remains in effect.

What else?

In addition, the order issues directives to the office of the Federal Contract Compliance Programs. This office is part of the Department of Labor and educates federal contractors and employees on employment rights, and helps them implement equal opportunity programs to help contractors build robust applicant pools that include talented workers from underrepresented backgrounds.

This office is now ordered to stop this work and stop promoting diversity.

Who is Impacted?

Most immediately, trans and queer folks who are federal employees, and all employees of federal subcontractors who are not white, male, and not disabled. However, these employees are still protected by the existing employment laws. So for these employees, there will be a clash between this executive order and existing employment protections (including the Equal Employment Opportunity Act). There will be friction between the revocation of the 1965 order and existing employment laws. This will be fertile grounds for the lawyers to file cases.

The executive order holds no power over private employees or state employees, as an executive order never carries that kind of authority. However, the order encourages the private sector to end DEI programs and participation. These programs were already optional, but we will see a lot of employers undo prior programs. Meta, McDonald’s and Walmart have already ended their practices.

How Does it Impact Mothers?

Employer-sponsored paid parental leave policies may disappear. This category is specifically the form of paid leave that is offered as a perk. (Any state or government benefits should stay in effect.) However, companies that elect to offer paid parental leave benefits may revoke these benefits as they are a form of DEI programs.

This is yet another reason why we cannot rely on the market to provide our human rights, these need to be laws that cannot so easily be eliminated with the changing winds of incoming Administrations.

Other motherhood programs like elevated lactation lounges and telework based on policy may be revoked. However, all approved leave rights based on FMLA or state law, and accommodations based on the PWFA will not be affected, as these are legal requirements. The Pregnancy Discrimination Act and ADA are still very much the law of the land, so no, you may not be fired for being pregnant or postpartum. Please ignore the viral sensational posts that indicate that you can, and alert them that they are misrepresenting the law to thousands of people. We don’t want mothers assuming they suddenly have no rights anymore.

What Happens Next?

A sh*tton of lawsuits. And a bunch of confused HR ladies. And mass elimination of company policies like telework (as this supports mothers and disabled workers, which is a form of DEI).

Private employers may have a knee-jerk fear response and may suddenly undo any and all programs that support employees above the legally required minimum, out of fear of repercussions in the context of “illegal discrimination” DEI allegations. Put simply, we will see a lot of white men sue for gender and race discrimination, and companies may start to engage in risk management to prevent this wave of lawsuits.

How Do You Protect Yourself at Work?

It is essential that you request any accommodations or needs in legal language, otherwise it will be classified as a DEI requests. Your advocacy HAS to be rooted in your rights.

So instead of, “Can I work from home because I’m a breastfeeding mother and the company benefits from inclusive policies?” your question will be, “Can I work remotely on the basis of PWFA lactation accommodation protections?”

Instead of, “I’m feeling a bit stressed to return to work. Can the company provide me with more parental leave? These policies have proven to increase retention,” you will ask, “I would like to request an extension of my medical leave based on postpartum anxiety. I understand this is my right under the PWFA.”

Instead of, “What are the company’s parental leave policies?,” you will write, “I understand I am eligible for FMLA/[state leave law]. I would like to use these rights starting on [date].”

Companies will respond differently to requests based on policy, and requests based on law. Asking for inclusive policies is asking your employer to implement a DEI measure, and will more likely be denied. Asking for your rights is the law, and will more likely be granted. Know the difference. Apply relentlessly. Tell your people. We Got You.