As expected, the Biden Administration hit the ground running yesterday, including firing the Trump-appointed general counsel for the National Labor Relations Board and signing 17 Executive Actions. This Alert covers several of those actions that create immediate impacts on Federal employers and contractors, and are of interest to all employers.
Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
President Biden signed an Executive Order (“EO”) formally adopting the United States Supreme Court’s June 15, 2020 decision in Bostock v. Clayton County
, which held that pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful to engage in discriminatory actions against employees because of their gender identity or sexual orientation (see our prior B-Alert here
In furtherance of the Bostock
decision, the Administration affirmatively commits to a policy of preventing and combating discrimination on the basis of gender identity and sexual orientation, to fully enforce Title VII, and to enforce other laws that prohibit discrimination on the same bases, as well as overlapping forms of discrimination (i.e., gender identity and race; sexual orientation and disability).
In support of the policy, the EO requires all Federal Agencies to review and correct any non-compliant policies, procedures, rules, or other guidance within 100 days. The goal is to ensure that all Agency materials support compliance with Title VII and any other laws prohibiting discrimination, incorporating the prohibition on discrimination on the basis of gender identity and sexual orientation. The Agencies shall provide the Administration with plans to carry out the actions the Agency identifies to fully implement the policy and take appropriate steps to combat discrimination at the close of the first 100 days.
The EO goes well beyond the workplace, explaining the same rationale that prohibits discrimination in employment under Title VII also applies to other laws that prohibit sex discrimination, including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations. While it will take more than the first 100 days to fully implement and expand protections for LGBTQ Americans, this is a monumental step in what is undoubtedly one of the most impactful EO's ever issued concerning LGBTQ civil rights. We expect to see additional guidance from the Agency review and implementation periods and provide updates regarding workforce protections as available.
Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
As anticipated, President Biden immediately revoked the prior Administration’s EO of September 22, 2020 (Combating Race and Sex Stereotyping) that restricted federal contractors, recipients of federal grants, federal agencies, and the United States military from providing certain types of training, including those that discuss issues like systemic racism and implicit bias. That EO had already been stayed by a court as it related to federal contractors and recipients of federal grants but remained in effect for federal agencies and the military (see our prior B-Alert here
). President Biden did not just revoke the order, however. He signed an Executive Order creating
federal policy to address systemic racism in the United States and “embed equity principles, policies, and approaches across the Federal Government,” including active engagement in dismantling systemic barriers to opportunity.
The Order declares the policy of the Federal Government is to “pursue 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.” To further this work, the Federal Government will conduct studies of its agencies to determine if the current “policies and actions create or exacerbate barriers to full and equal participation.”
The review work will be headed up by the Office of Management and Budget (“OMB”), with individual agency reviews conducted by the agency heads (or designees) with oversight by OMB. Within six months, a report must be delivered to the President, providing results and recommendations. Each Agency must provide an equity assessment to the OMB within 200 days, identifying barriers to:
a) Enrollment in and access to benefits and services in Federal programs;
b) Agency procurement and contracting opportunities;
c) Need for new policies, regulations, or guidance documents to advance equity; and
d) Operational status and institutional resources available to advance civil rights or specifically include serving underrepresented or disadvantaged communities.
The Order also creates a long-term working group to continue identifying equity barriers within the Federal Government. The working group will focus on disaggregating data sets throughout the Government to promote equity and have a greater understanding of the relevant data.
Likely, many Federal workspaces will see changes coming in the near future based on this new mandate. The procedure described in the EO provides an excellent blueprint for any organization seeking to start or continue similar work of identifying and breaking down barriers to opportunity for its employees. Furthermore, any employer that may have been impacted by the prior Administration's threat to revoke Federal contracts or funding based on the continuation of DEI initiatives may continue that work freely.
We will provide updates as the Federal initiatives are implemented and expanded upon.
Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing
As long-promised, President Biden enacted a series of policies to help control the spread of COVID-19. Effective January 20, 2021, all federal properties, executive departments, and executive agencies must require compliance with CDC guidelines relating to COVID-19, including wearing masks and maintaining physical distancing. The scope of the Order covers all Executive branch employees (including Armed Forces and contractors).
The Order also creates a “Safer Federal Workforce Task Force,” which is tasked with providing ongoing guidance to all agencies for the safety of its employees and the continuity of Government based on best practices determined by public health experts. The topics will include testing, contact tracing, physical distancing requirements, equipment and filtration, remote workplace options, and vaccine delivery to the workforce, amongst others.
Many of the topics covered by the EO are already implemented in Oregon and surrounding jurisdictions. Bullard will continue to monitor state and federal agencies for any changes and will update with any additional developments.
Takeaways and Save the Date
This is just the beginning of what we anticipate will be sweeping changes for employers. The new Administration will continue to move expediently to roll out its policies and visions. While the initial wave of Executive Actions relates directly to Federal workforces, we expect leadership changes in the National Labor Relations Board and the Equal Employment Opportunity Commission, and other agencies that deal with employment matters. These changes will likely lead to adaptation to these agencies' methodology and priorities and how they deal with all employers.
We will provide ongoing updates to keep employers apprised of policies, procedures, and any significant shifts in priorities. We also invite you to save the date for Bullard’s webinar that will discuss how the new Administration will impact employers on February 18, 2021, at 10 am. More details to follow.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.
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