Trump is repealing the measure that was used to fight discrimination in the workplace for 60 years

New York
CNN
—

President Donald Trump this week rescinded a nearly 60-year-old executive order that prohibited government contractors from discriminating in their hiring, firing, promotion or pay practices.

Replacing it is a new requirement that those employers certify that they don’t have what he called “illegal” diversity, equity and inclusion programs. He also ordered each federal agency to identify up to nine targets for federal investigations into their DEI practices to see if they should be ruled “unlawful.” It includes publicly traded private companies, large non-profit corporations or associations, and major foundations.

The order that Trump rescinded, originally signed by President Lyndon Johnson, applied to virtually all major companies and many small businesses that together employ about a quarter of the workers in the United States. It had remained in effect through both Democratic and Republican administrations, including Trump’s own first term.

And his action has sparked concerns that even companies that see value in having a diverse workforce and leadership will be nervous about reaching out to women, minorities and other protected classes, and will drop those efforts instead to risk running afoul of the new administration.

The actions make it clear that Trump is seeking to do more than rid the federal government itself of controversial DEI programs. It seeks to put an end to many efforts by a wide range of employers who had taken steps to have a more diverse workforce. The little-known 60-year-old order allowed investigations into contractors’ employment practices, and often found cases of discrimination that even the affected employees were not aware of. And the threat posed by these investigations and the regulatory requirements was a powerful driver of diversity efforts across the economy.

Critics of the move worry that many employers will see Trump’s action as a signal that they no longer need to worry about being penalized for discriminating in their hiring practices.

“Those who have been more reluctant and reluctant (to do outreach) will get the message that all bets are off and you can do whatever you want,” said Jocelyn Frye, president of the National Partnership for Women & Families , a public interest group.

Trump portrayed the effort as ensuring merit-based employment. He said his actions will ensure that “hiring, promotions and performance reviews will reward individual initiative, skills, performance and hard work and not under any circumstances DEI-related factors, goals, policies, mandates or requirements.”

But the executive order he repealed, known as EO 11246, did not allow quotas, preferences or overrides. They are strictly prohibited,” according to the Ministry of Labour specified rules. It required companies holding government contracts to submit annual data on their hiring practices, and those reports could lead to a finding of discrimination, requiring employers to compensate workers found to have been discriminated against.

About a quarter of those found to have been discriminated against and who received compensation were white men, said Craig Leen, head of the Labor Department office that oversaw the order for most of Trump’s first term.

Leen said revoking the order does not give a green light to contractors to start discriminating. He said they must still comply with Title VII of the 1964 Civil Rights Act, which prohibits discrimination.

“I think they will continue to enforce the non-discrimination,” said Leen, who is now a private attorney. He said Trump’s move stems from conservative suspicions that companies hire based on racial or gender-based demographics.

“There’s been a concern on the Republican side for a long time that sometimes (contractors) have preferences and quotas,” he said.

But Leen defends employers’ efforts to have a more diverse workforce. He said those who don’t seek out underrepresented groups during the hiring process before making a hiring or promotion decision aren’t just hurting themselves, they’re hurting the American economy overall.

“You can’t get everyone hired by word of mouth and they’re all (white) men. That violates Title VII whether 11246 is here or not,” he said. “So if you really want to do merit-based hiring, which is what (Trump’s executive order) is talking about … means you have to audit yourself every year. You have to make sure you’re giving women the same opportunity to be promoted as men.”

But Title VII does not require companies to provide information about their employment practices. Without Executive Order 11246, it will be more difficult for people to confirm that they are being discriminated against, and far fewer checks on employers who discriminate, either intentionally or unintentionally. Most people who don’t get a job don’t know anything about the decision making process.

“You have to know about it to file a complaint about it,” said Frye of the National Partnership for Women & Families. Under the repealed Executive Order 11246, the Department of Labor could “go on site and see if employers are meeting their obligation. This erodes their ability to do so.”

Even some employers who believe they benefit from a diverse workforce may pull back from outreach and other programs out of fear or of being targeted under the new policies.

“They have to certify that they don’t have an illegal DEI program. That hasn’t been defined within the four corners of the executive order,” said David Fortney, a lawyer who worked in the Labor Department during the George W. Bush administration. have had customers who have started asking that question. The answer is that we don’t know for sure. Pardon the pun, I don’t know if there’s a black and white answer to that.”

“My experience is that most clients strongly believe that having a diverse workforce in the broadest sense produces better results,” he said. “I think it will potentially have some degree of chilling effects.”