The EEOC cited several reasons why employers may prefer non-American workers noting that none are legally permissible reasons. These include lower cost labor, hiring workers less likely to use wage and hour or antidiscrimination protections, customer preference, and perceptions that foreign workers have a stronger work ethic and are more productive.  Acting Chair Lucas concluded that “The EEOC is going to rigorously enforce the law to protect American workers from national origin discrimination.”

DEIA Guidance Issued – The Attorneys General of sixteen states including Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont issued guidance designed to help businesses, nonprofits and other organizations understand the “continued viability  and important role of diversity, equity, inclusion, and accessibility efforts…in creating and maintaining legally compliant and thriving workplaces.” This guidance was issued in response to  the Executive Order 14173 , “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

The guidance states “Policies and practices that promote diversity, equity, inclusion, and accessibility are not the same as preferences in individual hiring and promotion decisions that have been found to be unlawful.” The guidance sets forth potential best practices in several areas including recruitment and hiring, professional development and retention, and assessment and integration.

For recruitment and hiring, the guidance suggests using widescale recruitment efforts to attract a larger group of applicants from varied backgrounds; using panel interviews so that multiple people are involved in the hiring process; setting standardized criteria for evaluating candidates and employees; focusing on skills and experiences; and implementing accessible recruitment and hiring practices.

The guidance recommends equal access to professional development and mentoring programs that provide pathways for career growth; establishing employee resource groups (ERGs) for employees of similar backgrounds and experience can meet; conducting training on topics such as unconscious bias, inclusive leadership, and disability awareness; and providing reasonable workplace accommodations.

States Can Bring PWFA Regulation Challenge – The United States Court of Appeals for the Eighth Circuit has reinstated a challenge to the Pregnant Worker Fairness Act (PWFA) regulation that was brought by 17 states. In the case of State of Tennessee v. Equal Employment Opportunity Commission, the Eighth Circuit believed that the States had standing to challenge the rule since it “compels them to provide accommodations to employees that the States would otherwise not provide, to change their employment practices and policies, and to refrain from pro-life messaging that arguably would be coercive and thus proscribed by the rule.” The case was remanded to the district court which dismissed it finding that the States did not have standing to bring the action.

The Equal Employment Opportunity Commission (EEOC) issued a regulation implementing the PWFA, which requires employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, absent a showing of undue hardship to the employer.” Abortion is among the known limitations related to pregnancy requiring reasonable accommodation according to the regulation. The States brought this lawsuit, since they currently refuse to accommodate state employees who seek elective abortions. The District Court dismissed the case, finding that the States failed to allege a sufficient injury needed to establish the standing required to bring the lawsuit. In reversing the District Court and remanding the case, the Eight Circuit stated the “States in this case are the direct objects of the EEOC’s rule, and the rule injures the States by requiring them to act contrary to their established policies.”

With the change of administration, the PWFA rule may be modified and the position of the federal government on this litigation may change. Acting EEOC Chair Andrea Lucas issued a statement indicating that while she supported parts of the final rule, she voted previously against the rule when it was considered initially by the EEOC. She stated that she opposed to the Commission’s construction of the phrase “pregnancy, childbirth, or related medical conditions” described in the Final Rule. However, the EEOC only has two confirmed commissioners and needs at least three for a quorum of the five member commission. Once a quorum exists, Acting Chair Lucas advised that she plans to have the Commission reconsider those parts of the rule that she believes are “unsupported by the law.”

District Court Issues Preliminary Injunction Against Parts of DEI Executive Orders – The United States District Court for the District of Maryland issued a nationwide preliminary injunction preventing implementation of parts of the two executive orders issued by President Trump concerning diversity, equity, and inclusion (DEI). In the case of National Association of Diversity Officers in Higher Education v. Donald J. Trump, the District Court stated that in the executive orders, “the administration has declared DEI to be henceforth illegal, has announced it will be terminating all equity-related grants or contracts—whatever the administration might decide that means—and has made practitioners of what the government considers DEI the targets of a strategic enforcement plan. But the Challenged Orders do not define any of the operative terms, such as DEI, equity-related, promoting DEI, illegal DEI, illegal DEI and DEIA2 policies, or illegal discrimination or preferences, let alone identify the types of programs or policies the administration considers illegal.”

The District Court found that the executive orders directed: federal agencies to terminate equity related grants or contracts; federal agencies to certify that every contract or grant includes language ensuring that the recipients do not operate any programs promoting DEI that violate a federal anti-discrimination law; and the attorney general to take appropriate measures to encourage the private sector to end illegal discrimination and preferences including DEI. The District Court concluded that the challenged portions of the executive orders were “unconstitutionally vague” and also “unconstitutionally abridge the freedom of speech.” The Justice Department plans to appeal the District Court’s decision. Several additional lawsuits challenging these executive orders have been filed in district courts.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.