Responding to DEI Executive Orders

Do the recent Executive Orders impact the private sector? 

Executive Orders impact all federal agencies. However, Executive Order: Ending Illegal Discrimination and Restoring Merit-Based Opportunity also discourages DEI in the private sector—specifically organizations that receive federal funding—through civil compliance investigations.  

It directs the government to conduct investigations to determine whether those organizations have violated Civil Rights laws by practicing discriminatory actions based on diversity, equity, inclusion, and accessibility (DEIA) preferences. 

To implement that Executive Order, Attorney General Pam Bondi issued a memorandum explaining the role of the Department of Justice: 

What is illegal DEI? 

Illegal DEI breaks the country’s discrimination laws which prohibit plus-factors, preferences, quotas, balancing, and set asides based on race, color, sex, sexual orientation, religion, or national origin. (Preferences for veteran status and recognized disabilities are not impacted by the Executive Orders.)  

It occurs when a person who is part of a protected class is treated more favorably or negatively because of that person's protected class status: 

• Making employment decisions based on an employee’s or applicant’s protected class
• Implementing policies that unduly disadvantage someone based on protected class

It’s important to note:

• Discrimination under federal, state, and local anti-discrimination and harassment laws continue to be illegal under Title VII and other anti-harassment laws
• The U.S. Supreme Court determined that "sex," as defined by Title VII, includes gender identity so discrimination and harassment against transgender and nonbinary/gender nonconforming people continue to be illegal under federal law
• State and local anti-discrimination and anti-harassment laws which protect gender identity, sexual orientation, and gender expression are still in effect

What are some examples of illegal DEI? 

1. An employer sets aside a certain number of positions at different levels in the organization to reserve them for members of a protected class.
2. A manager has an open position and has two qualified candidates. The manager selects one candidate over the other because it will improve the diversity of the team.
3. When making a promotion decision, the executive team decides to select one candidate over another because it will improve the diversity of company leadership. 

What do the recent DEI Executive Orders mean for my organization? 

Illegal DEI practices have always been unlawful, but now the government is prioritizing enforcement of illegal DEI. To be compliant, employers should:

• Train all employees on unlawful discrimination, harassment, retaliation, and what constitutes unlawful DEI practices
• Continue to ensure equal employment opportunities for everyone
• Maintain and enforce policies that prevent unlawful discrimination, harassment, and retaliation
• Promptly, thoroughly, and impartially investigate allegations of harassment and discrimination
• Review job postings, job applications, interview questions and candidate scoring, internship and scholarship programs, DEI training programs, frameworks for promotion and compensation, benefits, organizational policies, and DEI and career messaging 

What is Atana doing to ensure its courses and assessments address these directives? 

Our respectful workplace and harassment prevention courses meet the requirements of the Executive Orders and the Attorney General’s Memorandum. 

How Was Your Day? Getting Real About Respect in the Workplace and Unintentional Still Hurts will also be revised to increase focus on the desired respectful workplace behaviors that drive employee engagement, productivity, and morale—as noted in the learning objectives outlined below. (Current customers will receive the revised courses at no charge, and will be provided with timely updates on their availability.) 

How Was Your Day? 

Following the training, learners will be able to: 

• Challenge their personal biases
• Understand the importance of inclusion and building a sense of belonging
• Understand how to ACT (Approach, Care, Talk) when they see inappropriate or disrespectful behaviors in the workplace
• Speak up against harassment or abusive conduct 

Unintentional Still Hurts 

Following the training, learners will be able to: 

• Recognize and overcome personal bias and stereotypes
• Identify what constitutes discrimination and harassment
• Respond if they’ve been a target of microaggressions or other offensive conduct 

About the Author

Michele Chiarella | Director of Content, Atana

Michele Chiarella brings strategic vision and creative excellence to her role as Atana's Director of Content. Over her 25 years in training and development, she has crafted numerous award-winning learning experiences. Her expertise lies in developing engaging, impactful training that both captivates learners and ensures full compliance with federal and state requirements.