Harmful Executive Orders and Actions
One of the Executive Orders President Trump issued entitled “Harmful Executive Orders and Actions” rescinds numerous Executive Orders issued during the outgoing administration’s term in office. This EO stated that the injection of diversity, equity, and inclusion practices are “corruptive” to principles of hard work, merit, and equality. It states that orders to open the borders of the US have “endangered the American people and dissolved the Federal, State, and local resources that should benefit the American people, and this climate of extremism has exploded inflation and overburdened businesses with regulation.” In the EO, President Trump set forth his plan to repair the economy and make a “united, fair, safe, and prosperous nation.” As a first step, he rescinded a number of prior EOs from President Biden, which purported to provide additional anti-discrimination measures and protections for certain groups. To effectuate these revocations, the head of each applicable agency has been ordered to take immediate steps to end Federal implementation of “unlawful and radical” DEI ideology. While unlawful DEI ideology has never been legal, private employers should be aware of any programs, mandates, policies, or initiatives they may have that could be deemed “radical” under the terms of the EO and any forthcoming guidance for private employers.
Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government
Another EO likely to have some impact on private employers is the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. This EO states that it is the policy of the United States to recognize two sexes, male and female. The definitions provided for the interpretation of this EO include the following:
- “Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept of “gender identity.”
- “Women” or “woman” and “girls” or “girl” shall mean adult and juvenile human females, respectively.
- “Men” or “man” and “boys” or “boy” shall mean adult and juvenile human males, respectively.
- “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell. (Emphasis added.)
- “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell. (Emphasis added.)
- “Gender ideology” replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex. Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.
- Gender identity” reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.
According to the EO, permitting men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women is wrong, and eradicating the biological reality of sex fundamentally attacks women by depriving them of their dignity, safety, and well-being. The EO states that the “erasure of sex in language and policy has a corrosive effect on women and the validity of the entire American system.” Basing federal policy on this “truth” is, as the EO claims, critical to scientific inquiry, public safety, morale, and trust in government itself. Therefore, Trump states that the Executive Branch will enforce all sex-protective laws to promote the two-sex policy.
The President further directed that each federal agency and all Federal employees shall enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes. In doing this, they shall use the term “sex” and not “gender.” Further, all government-issued identification documents, including passports, visas, and Global Entry cards, must accurately reflect the holder’s sex (as “sex” is defined herein). This may be important for employers who have globally-mobile employees holding US passports. All agencies are directed to remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology and shall cease issuing such statements, policies, regulations, forms, communications or other messages.
The EO further directs the Attorney General to issue guidance that will likely impact private employers. First, the Attorney General is to issue guidance to agencies to correct the “misapplication”, as the EO deems it, of Bostock v. Clayton County (2020). According to the EO, the purported “misapplication” required gender identity-based access to single-sex spaces, and this “misapplication” has harmed women. Going forward, federal funds are not to be used to promote gender ideology.
Next, the EO directs the Attorney General to issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964. The anticipated guidance from the Attorney General pursuant to this EO will rescind prior agency guidance, such as “The White House Toolkit on Transgender Equality”, the Department of Education’s guidance documents, the Attorney General’s Memorandum of March 26, 2021 entitled “Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972″, and the Equal Employment Opportunity Commission’s “Enforcement Guidance on Harassment in the Workplace” (April 29, 2024).
Ending Radical and Wasteful Government DEI Programs and Preferencing
The EO entitled “Ending Radical and Wasteful Government DEI Programs and Preferencing” primarily affects federal employees, agencies, and contractors (including subcontractors), by eliminating “illegal” DEI (diversity, equity, and inclusion) and DEIA (diversity, equity, inclusion, and accessibility) programs, mandates, policies, programs, preferences, and activities. The EO directs that rewards shall be granted based on individual initiative, skills, performance, and hard work. Therefore, each federal agency, department, or commission head (in the federal government) are directed to terminate, as permitted by law all “environmental justice” offices and positions (including, but not limited to “Chief Diversity Officer” positions), all “equity action plans”, “equity” actions, initiative, or programs, “equity-related” grants or contracts, and all DEI or DEIA performance requirements for employees, contractors, or grantees. To this end, each agency, department, or commission head (in the federal government) is directed to provide to the Director of the Office of Management and Budget (OMB), a list of, among other things, all Federal contractors who have provided DEI training or DEI training materials to agency or department employees; and Federal grantees who received Federal funding to provide or advance DEI, DEIA, or “environmental justice” programs, services, or activities since January 20, 2021.
Ending Illegal Discrimination and Restoring Merit-Based Opportunity
Private employers who have DEI policies and initiatives may want to take particular note of the EO entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”. This EO states that DEI and DEIA policies can be “dangerous, demeaning, and promote immoral race- and sex-based preferences.” This EO is intended to end “illegal” preferences and discrimination by requiring that Federal agencies terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. As such, employers with DEI or DEIA policies, initiatives or the like will want to confirm that their efforts comply with anti-discrimination laws. The EO terminates a number of prior Executive Orders, including those aimed at promoting DEI initiatives and providing support to minority and low-income populations issued by the outgoing Biden administration.
Revocation of EO 11246 for Federal Contractors
President Trump also issued an EO that revokes EO 11246 of September 24, 1965 (Equal Employment Opportunity) that, among other things, required contractors to create affirmative action plans. Federal contractors are permitted to continue to comply with the regulatory scheme in effect on January 20, 2025 for an additional 90 days. At the conclusion of the 90 days, the Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease: (A) Promoting “diversity”; B) Holding Federal contractors and subcontractors responsible for taking “affirmative action”; and (C) Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
- The EO also revokes EO 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), which previously governed the employment, procurement, and contracting practices of Federal contractors and subcontractors. Specifically, EO 13279 directed that Federal contractors and subcontractors are not to consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation’s civil rights laws.
Private employers should also be aware of the directives under the “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” EO. That EO includes a section encouraging the private sector to end illegal DEI discrimination and preferences. To that end, the EO directs the heads of all agencies, with the assistance of the Attorney General, to take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work. The EO further directs the agencies to submit a report within 120 of the issuance of the EO containing the following information:
- Key sectors of concern within each agency’s jurisdiction;
- The most egregious and discriminatory DEI practitioners in each sector;
- A plan of specific steps or measures to deter DEI program, including up to 9 potential civil compliance investigations of publicly traded corporations, large non-profits corporations or associations, etc.;
- Other strategies to encourage the private sector to end illegal DEI discrimination and preferences;
- Appropriate litigation; and
- Potential regulatory action and sub-regulatory guidance.
Contrasting with these directives, on January 24, 2025, the Acting Secretary of Labor, Vincent N. Micone, ordered a cease and desist of all investigative and enforcement activity under the rescinded EO 11246 and the regulations promulgated under it, including all pending cases, conciliation agreements, investigations, complaints, and any other enforcement-related or investigative activity. The order applies to all Department of Labor employees, including the OFCCP. Due to this cease and desist, matters currently scheduled have been or will be paused. Matters not currently scheduled will not yet be scheduled. Matters are expected to be reviewed before any revised or initial scheduling goes forward.
Anticipating Changes Related to Employee Benefits
Private employers seeking guidance on employee benefits related issues should be aware of the new administration’s shift toward deregulation which is likely to result in little new guidance from the Department of Labor or the Internal Revenue Service. President Trump issued an EO entitled “Unleashing Prosperity Through Deregulation” requiring: (A) that each agency identify ten existing rules, regulations or guidance documents to be repealed for every new rule, regulation or guidance document set forth; and (B) that there be no new net cost for all new regulations for fiscal year 2025. The Biden administration’s rule permitting plan fiduciaries to consider environmental, social and governance (ESG) factors when selecting investment options for employer-sponsored retirement plans under certain circumstances is one rule likely to be repealed by the Trump administration as part of its deregulatory agenda. While the new administration is expected to be hostile toward ESG investment options, it is expected to welcome investment into cryptocurrency. Under the Biden administration, the Department of Labor issued guidance warning plan fiduciaries against offering cryptocurrency as an investment option for employer-sponsored retirement plans, but this guidance is also likely to be rescinded. Private employers should be aware of changes in permissible investment options as employees are likely to inquire into the types of investment options available to them.
Further, outside of the EOs, there are several employee benefits related changes anticipated under the new administration that may be of interest to employers and their employees. First, the provision of the Tax Cuts and Jobs Act of 2017 (TCJA) suspending the income tax exclusion for moving expenses paid or reimbursed by an employer is set to expire at the end of 2025. However, Congressional Republicans have vowed to extend the TCJA which could result in moving expenses being taxable as income beyond 2025. Second, for the past few years, employer-sponsored high deductible health plans have been permitted to provide telehealth services before an employee has hit their deductible. However, this provision expired at the end of 2024, so any employee with a high deductible health plan who receives telehealth services pre-deductible may be ineligible to contribute to a Health Savings Account. Some employers may need to amend their health plans offered to employees and issue a communication to employees informing them of the change to coverage. Lastly, the Supreme Court is set to hear a case regarding whether the Affordable Care Act provision requiring employer-sponsored health plans to cover certain United States Preventive Services Task Force recommended preventive services without cost-sharing is constitutional. Depending on the Supreme Court’s holding, certain services may no longer be considered preventative care, so employers will have a choice whether to continue providing those services without cost-sharing (further impacting their high-deductible health plans).
What Private Employers Should Know
Undoubtedly, private employers are left to wonder what, if anything, they should be doing in light of the surge of Executive Orders issued by the second Trump administration. The answer is highly individualized and likely turns on things like the current business of the company, the future business aspirations of the company, and the culture. Some actions they may consider include:
- Identify any major DEI markers within the Company. For example,
- Is there a DEI department or employees with DEI in their title?
- What major policies, mandates, training, or other activities have been announced within the company or externally within the past 12 months or are planned for the future that promote the company’s DEI plan, program, mandate, or initiative?
- This initial identification of items should likely be high-level and created in, by or at the direction of an attorney as privileged work-product in preparation for potential enforcement activity.
- Communications and writings should be handled and treated as confidential and privileged with internal or external counsel.
- Appropriate next steps can be identified once an initial, high-level list of items is gathered.
- Speak with your legal counsel. Based on the above factors and other important factors you or your legal counsel may identify, a specific course of action can be mapped to ensure ongoing compliance as the legal landscape continues to develop in the wake of the Executive Orders described in this legal alert.
