In the wake of the signing of these executive orders, the answers to questions of whether these orders can withstand judicial scrutiny and the impact the orders may have on the legal and regulatory landscape of employment remains to be seen.
In February 2025, a Fourth Circuit judge temporarily blocked parts of Trump’s “Ending Radical and Wasteful Government DEI Programs and Preferencing” order. However, on March 14, 2025, the Court of Appeals in the Fourth Circuit dismissed the block, allowing the Trump administration to proceed with enforcement of the order’s direction while the lawsuit continues. The Fourth Circuit Court of Appeals held that Trump’s orders “do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.” Various judges opined on the enforcement of such an order, with one pledging “reserve judgment on how the administration enforces these executive orders,” at least for the time being, and another commenting that order could “violate the Constitution if federal officials enforce them too vigorously.”
On March 19, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) released two new guidance documents to provide clarity for employers and employees grappling with the new orders. The documents outlined the procedure for bringing any claim of discrimination, harassment, or retaliation, with the EEOC emphasizing that Title VII of the Civil Rights Act of 1964 protections apply equally to all workers. Different treatment based on “[any] protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.”
Even more recently, the U.S. Supreme Court heard arguments in Ames v. Ohio Department of Youth Services, a case of “reverse” discrimination brought by a woman who claims her employer discriminated against her because of her heterosexuality. The Supreme Court is projected to find that the majority-group plaintiff should not be held to a higher pleading standard than if she were a minority-group individual. The upcoming decision has the potential to open the door for more “reverse” discrimination claims making it to jury trials, challenging the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits for the U.S. Court of Appeals where they currently consider an extra requirement of “background circumstances” to be at issue.
As federal bodies contend with the executive orders and their implications, many state and local bodies maintain laws and statues that prohibit discrimination on the basis of categories such as gender identity. For example, New York’s Gender Expression Non-Discrimination Act explicitly adds gender identity or expression as a protected category, which could conflict with the executive orders. Consequentially, private employers may find themselves in a difficult position, as they could face enforcement and litigation risks under state or local law or federal enforcement if they do not follow the regulations of either the executive orders or state and local bodies, respectively.
Further, state and local regulatory bodies, as well as private litigants, might have a tough task ahead if they choose to challenge the executive orders, as the breadth of the orders invites the risk that the orders might preempt state and local law on the issues at hand.
Discrimination and harassment have always been unlawful under Title VII of the Civil Rights Act and other statutes. As it stands, federal laws such as the Civil Rights Act and Americans with Disabilities Act, as well as state and local laws, continue to protect workers from discrimination based on race, gender, religion, and other protected categories, regardless of executive orders. As regulatory and legal bodies now battle with questions of what constitutes discrimination, and the kinds of explicit programs and policies federal and private employers might implement to address it, labor and employment attorneys, as well as attorneys experienced in discrimination and harassment litigation, can help protect your client’s rights.
Labor and employment attorneys can keep businesses compliant with the shifting landscape of employment law and keep an employer’s policies and programs focused on emphasizing inclusive workplace culture, good professional development, and copious access to opportunities for all members of the workforce. And labor and employment attorneys can work to ensure that workers’ rights remain protected in accordance with all laws and statutes applicable, whether through federal or state civil action, filing an EEOC complaint, and more.
