Biden Administration Executive Orders Impacting Employment Law Issues
Since inauguration day, President Biden has issued a flurry of executive orders (EO), which do not create new laws but do direct executive branch actions within existing laws. Among the executive orders signed by the President include ones meant to address racial and gender inequities in the workplace that employers should be aware of.
Executive Order 13988 is titled: “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
This EO is intended to ensure that all federal agency policies, regulations, and actions are consistent with the Administration’s goals of advancing gender equity. It provides that “Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.”
The EO cites the U.S. Supreme Court’s ruling in Bostock v. Clayton County, which provides that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. Bostock’s reasoning is extended to other laws that prohibit sex discrimination, including Title IX of the Education Amendments of 1972, the Fair Housing Act, and section 412 of the Immigration and Nationality Act, along with their respective implementing regulations. The EO makes clear that such laws prohibit discrimination on the basis of gender identity or sexual orientation.
The heads of each federal agency are directed to review all existing orders, regulations, guidance documents, policies, programs, or other agency actions and to consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to implement statutes that prohibit sex discrimination.
Executive Order 13985 is titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”
It focuses on combating discrimination in federal policies and programs by pursuing a “comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”
The EO requires all federal agencies to assess whether underserved communities and their members face systemic barriers in accessing federal benefits and opportunities available pursuant to those policies and programs. The definition of “underrepresented communities” include “Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.”
The EO directs the Director of the Office of Management and Budget (OMB) identify opportunities to promote equity and invest in underrepresented communities in the annual budget. The EO also requires agencies to consult with members of impacted communities in order to assess what barriers exist to accessing benefits and services offered by federal programs.
The EO not only creates new policies but also eliminates prior ones. The Trump Administration’s Executive Order 13950, which prohibited certain covered government contractors from conducting certain diversity and inclusion training, was revoked.
While these executive orders do not create new laws, they clearly indicate the Administration’s policies to expand worker protections moving forward. If you have any questions about these issues, please contact a Foster Swift labor & employment law attorney.
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