Published by New Orleans CityBusiness
On January 20, 2025, Donald Trump was inaugurated to serve his second term as President of the United States. Immediately following his inauguration, President Trump issued 26 executive orders, 12 memoranda, and four proclamations, while also repealing 78 executive orders signed by former U.S. President Joe Biden.
While President Trump’s executive orders cover a wide range of topics — from criminal justice to Tik Tok — many of these executive orders will have implications for employers operating under the new administration.
Ending Illegal Discrimination and Restoring Merit-Based Opportunity
President Trump’s executive order Ending Illegal Discrimination and Restoring Merit-Based Opportunity seeks to rescind affirmative action and other anti-discrimination laws applying to federal contractors. This executive order expressly reverses the 60-year-old Executive Order 11246 that mandated federal contractors and subcontractors to undertake various affirmative action efforts to promote employment of minorities and women.
The order affects the private sector as well, as it orders “all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
The order also says that the Attorney General, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, must, within 120 days of the order, submit a report containing the following recommendations to encourage the private sector to “end illegal discrimination and preferences, including DEI”:
- Key sectors of concern within each agency’s jurisdiction;
- The most egregious and discriminatory DEI practitioners in each sector of concern;
- A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. In this plan, each agency must identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
- Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
- Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
- Potential regulatory action and sub-regulatory guidance.
The order does not clarify what is an “illegal” DEI policy or program, and it does not impose any new obligations or requirements on private-sector employers beyond existing federal anti-discrimination requirements. Nevertheless, the order clearly seeks to affect the operations of private sector employers, as federal agency heads will draft reports over the next four months in an effort to legally investigate private companies and penalize those with “illegal” DEI policies and initiatives.
Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government
President Trump has issued executive order Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. While this order does not affect the private sector on its face, it nonetheless has broad implications for private sector employers.
The order states that it is the “policy of the United States to recognize two sexes, male and female.” In the definitions section of this order, “female” is defined as “a person belonging, at conception, to the sex that produces the large reproductive cell,” and “male” is defined as “a person belonging, at conception, to the sex that produces the small reproductive cell.”
The order directs the Assistant of the President for Legislative Affairs to propose a bill codifying these definitions, and others contained in the order, within 30 days. The order also requires the Secretary of Health and Human Services to provide to the U.S. Government, external partners, and the public clear guidance expanding on these definitions within 30 days.
Moreover, the order declares that the Biden Administration’s position (set forth in now-revoked EO 13988) that the US Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020) requires gender identity-based access to single-sex spaces (e.g., restrooms) is wrong.
The order directs the Attorney General to issue guidance to agencies to “correct the misapplication of … Bostock v. Clayton County (2020) to sex-based distinctions in agency activities” and issue guidance to ensure the binary nature of sex and to protect the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.
The order also contains several other directives. It directs the Attorney General, the Secretary of Labor, the General Counsel and Chair of the Equal Employment Opportunity Commission (the “EEOC”), and agency heads with enforcement responsibilities under the Civil Rights Act to prioritize investigations and litigation to enforce the rights and freedoms identified in the order. It directs agency heads to promptly rescind all inconsistent guidance documents, including the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace.
Finally, it directs federal agencies to submit an update on their implementation of the order to the President within 120 days, including “agency-imposed requirements on federally funded entities, including contractors, to achieve the policy of this order.”
Therefore, although this order does not directly affect the private sector, the new guidance that will result from these orders will have vast implications for private sector employers.
Revocation of Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency
The Trump Administration has revoked the Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency executive order issued by the Biden Administration, which aimed to eliminate discriminatory pay practices affecting the federal workforce and procurement of property and services by the federal government.
The order addressed the use of salary history in the hiring and pay-setting processes for Federal employees as well as the employees of Federal contractors and subcontractors. With its revocation, it can be construed that Federal agencies as well as Federal contractors and subcontractors may seek and consider information about job applicants’ and employees’ existing or past compensation when making employment decisions.
Note, however, that more than 20 states have pay equity rules that remain operative and enforceable.
Revocation of Nondisplacement of Qualified Workers Under Service Contracts (EO 14055)
The Trump Administration has revoked the Nondisplacement of Qualified Workers Under Service Contracts executive order issued by the Biden Administration, which ensured that qualified workers would not be displaced when a service contract expires and a follow-on contract is awarded for the same or similar services.
The order instructed federal contractors to offer previously employed service employees a right of first refusal of employment under the new contract for employment in positions for which those employees are qualified. With its revocation, federal contractors will be able to hire new employees without first offering the predecessor’s employees the right of first refusal.
Conclusion
The Trump Administration’s early actions represent a clear and major shift on the Biden Administration’s stance on a number of issues relevant to employers.
The changes made to this point affect both the public and private sector, and more executive actions are likely on the horizon. It is vital for employers to review and assess their practices, policies, programs, and procedures to ensure compliance with these orders and any new orders as they come into effect.
We will continue to monitor the forthcoming orders, memoranda, and proclamations of the Administration and will provide updates on how these actions may impact our clients.
About the Authors
Alex Lamb is a Partner in the Adams and Reese New Orleans office. Alex concentrates her practice on appellate and general litigation and represents clients in complex litigation, energy and environmental litigation, commercial litigation, and insurance coverage.
Jack Pontin is an Associate in the Adams and Reese New Orleans office. Jack represents clients in various areas of litigation and through all stages of the litigation process, including working with companies on dispute resolution and through any litigious issues affecting their business.