Social media and my inbox are abuzz over the Trump administration’s attacks on diversity, equity and inclusion (DEI) and accessibility initiatives in U.S. workplaces.
In the days immediately following his inauguration, Trump issued executive orders banning diversity programs in federal agencies and contractors and outlining plans to “encourage the private sector to end illegal DEI discrimination and preferences,” as the administration defines them. The following week, Trump also dismissed key personnel at the Equal Employment Opportunity Commission and the National Labor Relations Board, the independent agencies charged with enforcing workers’ civil rights and protecting them from workplace abuses.
It’s … a lot.
Many are rightly concerned about what this means for women, racial and religious minorities, people with disabilities, and transgender and nonbinary people - that last group being a particular target of the administration’s efforts. Still others are applauding the changes, arguing that DEI amounts to discrimination against straight White cisgender Christian men. A divide has formed between private businesses that are dismantling their own internal DEI programs to avoid catching the administration’s eye - or to appease their shareholders and customer base - and others that are standing firm on their commitment to equality and inclusion for all.
To help ground the discussion in reality, I spoke with several employment attorneys about what these anti-DEI efforts mean - and don’t mean - for U.S. workers in need of legal protection against harassment, discrimination and abuse.
Anti-bias laws are still in effect
Everyone I spoke with confirmed that federal, state and local laws prohibiting discrimination on the basis of sex, faith, age, disability, nationality and other protected classes are still very much in effect.
“Trump has control over the federal workforce and the policies of the executive branch,” said Joshua Erlich of the Erlich Law Office in Rosslyn. However, Erlich added: “He cannot change the law.”
“Title VII of the Civil Rights Act of 1964 is still a thing,” said Amy Epstein Gluck, chair of Pierson Ferdinand’s Employment Department. (Title VII is the statute that prohibits employment discrimination based on race, color, religion, sex or national origin.)
Trump’s executive orders only “limit the federal government’s ability to take affirmative steps to diversify the federal workforce,” explained Tom Spiggle of Spiggle Law in a LinkedIn discussion. “It’s still illegal to discriminate based on protected classes.”
Erlich and Epstein Gluck both pointed out that in 2020, the U.S. Supreme Court affirmed that discrimination based on sexual orientation or gender identity is sex discrimination under Title VII, meaning gay, transgender and nonbinary workers are still legally protected from harassment and mistreatment.
Workers facing bias still have options
But even though the underlying laws haven’t changed, “we are likely to see a significant change in enforcement and regulatory priorities” as Trump promotes and appoints his own people, Spiggle said. For example, the Trump-appointed acting chair of the EEOC has already announced a rollback of gender identity measures, including removing gender-neutral markers from forms and revoking employees’ option to display pronouns in their intranet profiles - igniting concerns that the EEOC intends to back down from enforcing gender identity protections.
The good news is that, even with the turmoil at the top of the commission, workers can still file discrimination complaints with the EEOC and receive right-to-sue letters allowing them to pursue lawsuits against employers, Spiggle confirmed. There is also some debate on whether the termination of the former EEOC commissioners, who are appointed by Congress, will even be upheld as legal. At least one of the commissioners has retained counsel to protest her firing.
Companies ditching DEI should do so carefully
With the antidiscrimination laws still in place, private-sector employers run the risk of violating those laws if they undo their diversity programs in a way that has an outsize impact on workers in protected classes, Erlich warned: “If people who work in DEI are disproportionately people of color, then getting rid of the DEI department could have a disproportionately discriminatory impact.”
Epstein Gluck indicated that from what she has seen, some employers aren’t abandoning diversity efforts altogether. Rather, they’re “reframing and rebranding” their programs to emphasize the distinction between their efforts to foster inclusion and opportunity and the kind of activity the administration says it’s targeting.
“I think there’s a misunderstanding of DEI as something that is about quotas, and that has never been what DEI is,” Epstein Gluck said.
And even before DEI became a household acronym, businesses had many ways to signal their values. How they treat their workers, as well as their donations, sponsorships and alliances for particular causes, speak volumes to those who are paying attention. And, of course, customers and shareholders have voices as well, which they can use to ask questions, express disapproval and spread the word about businesses that don’t align with their values.
Karla L. Miller offers weekly advice on workplace dramas and traumas. You can send her questions at karla.miller@washpost.com.