Mintz on Air: Predictions and Practical Policies – Workplace Whiplash

In the latest episode of the Mintz on Air: Predictions and Practical Policies Podcast, ESG Co-chair Jen Rubin hosts a timely discussion on Title VII of the Civil Rights Act, Executive Order 11246, and how employers can prepare for the next administration. This episode is part a series of conversations designed to help employers navigate workplace changes under the upcoming Trump administration.

Jen is joined by Employment Associate Corbin Carter to explore key topics, including:

• The stability of Title VII under the incoming Trump administration
• The Department of Justice’s influence on workplace policies
• The potential impact of the Dismantle DEI Act on workplace anti-discrimination initiatives
• Practical applications for employers with multijurisdictional locations and mandatory workplace training requirements
• Predictions for Executive Order 11246 under the Trump administration

Listen to gain valuable insights on what employers can expect in 2025.

Mintz on Air: Predictions and Practical Policies – Workplace Whiplash Transcript

Jen Rubin (JR): Welcome to Mintz On Air: The Predictions and Practical Policies podcast. This is a series of conversations to help employers better understand what to expect in the workplace in the coming administration, and what those employers should do to prepare for the next administration. I am Jen Rubin. I am a Member of the Mintz's Employment practice. I have a bicoastal practice from San Diego and New York, and I'm going to be focusing today on Title VII of the Civil Rights Act and the executive order governing affirmative action for federal contractors.

I am really pleased to welcome Corbin Carter, my colleague who is also one of the attorneys in Mintz's Employment practice. Corbin focuses on counseling employers regarding employment matters as well as employment litigation.

Corbin is co-located in New York City and Dallas, Texas. And trust me when I say co-located, Corbin is everywhere. All the time traveling the country, dealing with employment matters. Welcome, Corbin.

Is Title VII in Danger?

JR: As I mentioned, we're going to be discussing Title VII and Executive Order 11246, which is otherwise known as the Executive Order, which requires government contractors to enact and engage in affirmative action programs. We are discussing how that statute and that program will fare under the second Trump administration. So, workplace whiplash. Corbin, Title VII some people think is going to be thrown out the window on January 20th.

Maybe that's hyperbole, but President Trump has made several campaign promises regarding his intent with respect to civil rights in the workplace. One of the things I'd like to chat with you about today is whether this is something we actually should be concerned about. For example, Reuters reported this week that incoming President Trump has announced he will use the Department of Justice to pursue civil rights investigations, primarily against universities.

One of the things I'd like to discuss with you is whether the Civil Rights division of the Department of Justice can do with respect to bringing discrimination claims against private employers. But I've unpacked quite a few meaty questions here, and I'd like to start with the question about title seven. Corbin-, do you think Title VII of the Civil Rights Act is in any danger under the incoming Trump administration?

Corbin Carter (CC): As you know, employment lawyers, we so often default to this response of: “it depends” and sometimes that's an appropriate response given how nuanced some of the employment issues can be. But luckily, Jen, I can give you a very clear answer here:

Title VII isn't going anywhere. Title VII will exist on January 20th of 2025, when president-elect Trump comes into office, and it'll exist in January 2029 at the end of his administration. To back up a little bit and as a very brief primer, Title VII of the Civil Rights Act of 1964 is sort of the seminal anti-discrimination statute at the federal level. It prohibits discrimination by employers on the basis of race, color, sex, and a few other categories.

The Civil Rights Act also created the EEOC, the Equal Employment Opportunity Commission, and it's responsible for enforcement regulations regarding Title VII. So why can I be so certain that Title VII isn't going away? First, it's been around for 60 years. It's a statute. This is not the creature of an Executive Order.

This is a congressional statute that has had real staying power. The President, whether it's Donald Trump or someone else, can't just magically wave a wand and eliminate it. It would take congressional action. And really, you know, there's no will, even with Republicans controlling both the House and the Senate for some sort of full overhaul of anti-discrimination law. There's no call to dismantle the EEOC or take any similar actions.

I haven’t even seen any indication from president-elect Trump's team that they're looking to take any of these potential actions. I think that while the composition of the EEOC and some of the enforcement priorities may shift over the next couple of years, those aren't going to be day one changes. And really, at its heart, anti-discrimination law and Title VII will remain intact.

Ruling Out the Use of Discrimination Policies

JR: It's good to hear that! You know, there are some things that are somewhat certain, as this administration changes. But as I mentioned at the top, Reuters has reported that incoming President Trump has indicated he intends to use the Department of Justice, through its Civil Rights division, to bring actions to root out the use of discrimination policies and things like that.

Can you speak to what the power of the DOJ is with respect to the private workplace?

CC: It's pretty limited, really. The EEOC, which is the entity responsible for the enforcement of Title VII and other anti-discrimination statutes, is really the concern for private employers. The EEOC is sort of a presidentially appointed body as there's five commissioners that are presidentially appointed. But really, the EEOC is sort of a semi-autonomous agency -it was structurally set up like that. That's the concern. The DOJ doesn’t have the enforcement power for private employers in the anti-discrimination space. If you're a federal contractor, potentially a federal grant recipient and if you are within the federal sector, that may be a different story. But the average private employer, that's not going to be the DOJ’s concern.

What is the Dismantle DEI Bill?

JR: That's good to hear again, because most employers I think you would agree, that they're looking for an understanding as to what is going to happen in the workplace and what type of policies need to be put in place and what they should plan for.

But before we get to that, I want to ask your opinion about the dismantle DEI bill. For those of you who are not aware, this is a bill that has come through a committee in Congress. It presumably will be reintroduced in the coming Congress once we have the change in administration. Corbin, how, if at all, would that bill, in its current iteration impact policies prohibiting discrimination in the workplace?

CC: It’s really interesting with its jazzy title “Dismantle DEI”, but it’s not quite as extensive as it might appear when you first hear that phrase. This legislation was introduced by Senator J.D. Vance, soon-to-be Vice President, JD Vance, and a number of other congressional Republicans. It's not going anywhere like you said in this congressional session - in the lame duck period; but I assume it'll be reintroduced in some form, maybe not exactly how it’s been introduced now, but in some form next congressional session. The proposed legislation mostly focuses on trainings. It’s also confined to the federal sector, federal contractors, federal grant recipients, and again, the average private employer is really not impacted by the legislation, at least as it's drafted today.

I think that the bill is largely a replica of the Florida Stop Woke Act that got a lot of publicity when it came through this past year. That Act has been, enjoined on First Amendment grounds, so we'll see what happens with that.

It's really a restriction that they're trying to enact on trainings and the promotion of ideas in the workplace and other settings that race, sex, national origin, and some other protected characteristics can lead to certain biases. And there are certainly trainings that focus on eliminating oppression on those biases or recognizing privilege and trying to dismantle institutional racism etc. So, this bill is focused on the elimination of some of those trainings, but I think it is still fairly narrow as to the actual restrictions.

The Future of Workplace Anti-discrimination Training

JR: Let me follow up on that, because it’s a federal bill, and I realize I'm asking you to make a lot of assumptions because it has to get through Congress and be signed and be enacted. It's not a law. But for those businesses and employers which have multi-jurisdictional locations, and which are located all over the country, maybe located in some states which actually mandate certain components of training for their workforce – for example, California comes immediately to mind, New York, New York City, Connecticut – those are states that have these kind of components where employers are really obligated to bring certain information into the workplace in order to make it more comfortable and of course, lawful place to work.

So any advice for those individuals listening who are concerned about how to marry all these conflicting political viewpoints in terms of practically applying these trainings and what type of trainings to do for their workplaces.

CC: It's a really important question because there are so many different state and local obligations out there. You mentioned California, but New York, Connecticut, Illinois, and a number of other states have these particular anti-harassment training obligations, with the focus being sexual harassment prevention talking about employers policies against discrimination and harassment. Those requirements are very real and there are enforcement efforts around those requirements. Employers in those states are going to have to retain those training programs, make sure that they're still in compliance with those obligations. I really don't think, at the end of the day even as we see campaign promises and some action taken around DEI programs, particularly, I don't think there's going to be much of a federal mandate not to talk about things like sexual harassment prevention, harassment and discrimination trainings in the workplace. Really, this Dismantle DEI bill and probably some of its replicas out there are really focused on these racial sensitivity trainings and unconscious bias trainings. A lot of that is not necessarily required by states and localities right now. So, can employers still talk at the end of the day, during the second Trump administration about their equal opportunity policies and their sexual harassment prevention efforts and complaint procedures? Professionalism expectations are that we should treat each other with civility in the workplace; we should ensure equal treatment. All of that is still going to be fair game regardless of whether a piece of legislation like this passes.

JR: I agree with you. I think the message on these issues is that employers should stay the course. Employers should continue to be keenly aware of local requirements notwithstanding what's going on at the federal level. And obviously, you have to be cognizant of the laws that are going to be coming out of Congress and, and be ready to act on them, act on those laws, if need be.

But in the meantime, staying the course, with existing policies seems to be the best approach under the circumstances.

Will Executive Order 11246 Survive Trump?

JR: Let's pivot, then, to discussing Executive Order 11246, which for those of you who don't know, is an order prohibiting discrimination by federal contractors, which includes entities with more than $50,000 in revenue from the federal government and that executive order requires that the contractors establish affirmative action programs and adhere to a few other obligations that are set forth within the order.

Will this executive order survive the Trump administration?

CC: My prognostication is that it will, because it has been around for so long. I think we may see some changes to the federal contractor landscape, but I think this is a pretty core requirement. We're still going to have anti-discrimination laws with respect to federal contractors under that executive order. I think some of the things we talked about with the Dismantle DEI Act, some of the training requirements, and some of what you have in terms of workplace requirements for federal contractors may look different.

I point you to the last Trump administration, near the end I think it was maybe mid-2020, there was an Executive Order that was issued by then President Trump on combating race and sex stereotyping within federal contractor populations. And it really was again training related focus to take out these racist or sexist sensitivity trainings that federal contractors were obligated to go through. I think we could see another iteration of an order like that. I think we probably will. There will be some changes in the federal contracting landscape, but the overall requirement to not discriminate and even with respect to affirmative action obligations, I would be surprised if we have a whole scale rolling back of those sorts of long-standing requirements.

That said, if we were to see movement on some of that front, you could see some of the race conscious requirements going by the wayside and still having affirmative action programs for individuals with disabilities and the veteran populations. Maybe there's some shifting. Obviously, employers are going to have to remain aware of that if they're federal contractors or even maybe federal grant recipients.

But I really don't think we're headed for some sea change there. There wasn't one during the first Trump administration. So, if history is going to help us illuminate the future, I would point to that.

JR: So it sounds like employers should not throw their EEO-1 reports in the trash.

They will still be required, and much to the chagrin of many human resources professional who are tasked with pulling that information together, which can be quite extensive. Moreover, to the extent there are changes that are proposed, I'm assuming they have to go through the rulemaking process. And so, it can't simply be announced on a Monday morning that we have a whole new sea change in how training, reporting, and affirmative action programs need to be designed.

It sounds like the upshot is, stay the course; there may be some tweaks; there may be some things that people need to be aware of, but presumably we'll all have notice and have the opportunity to discuss them. Perhaps do another Mintz on Air podcast and instead of talking about predictions, we'll talk about, “here's what you need to do to comply with these things”.

I really appreciate your time. Again, this is Corbin Carter, my colleague from the Mintz employment practice who is a co-located in a Dallas, Texas, and New York, New York and I am Jen Rubin, a member in the San Diego and New York offices. I really appreciate you stopping by and listening to the Predictions and Practical Policies Podcast. Visit us at Mintz.com That’s M-I-N-T-Z.com.

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