On January 20, 2021, during the first 24 hours of the new presidency, President Biden issued two sweeping executive orders that are likely to have implications for employers – and maybe all Americans – in the future. These two orders represent a significant “reset” to the momentum of the prior administration in the area of diversity and discrimination, and set the tone for a new administration’s policies and laws.
Executive Order 13988 (“Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation”) relates to sex discrimination, notably LGBTQ protections. This order codifies the recent holding in Bostock v. Clayton County, 590 U.S. ___ (2020), which held that Title VII “sex” discrimination covers discrimination on the basis of gender identity and sexual orientation. Notably, it also consider the perceived magnifying effects of “overlapping” forms discrimination, such as when sex discrimination intersects with racial discrimination or disability discrimination — for instance, stating that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.” The Order directs federal agencies to “self audit” and review existing programs and agency actions administered under Title VII or any other statute or regulation that prohibits sex discrimination to ensure the agency is taking appropriate steps to combat sex discrimination.
Executive Order 13985 (“Advancing Racial Equity and Support for Underserved Communities Through the Federal Government”), predictably revoked President Trump’s September 22, 2020 Executive Order 13950, which had barred Federal contractors from providing diversity trainings that include race or sex stereotyping or “divisive concepts”. But Biden’s order goes much further than policing the content of diversity training: it asks federal agencies to conduct an “equity assessment” within Federal agencies to determine whether “underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.” The order also provides a framework for allocating federal resources to “advance fairness and opportunity” and promoting the “equitable delivery of government benefits and equitable opportunities”. The order establishes an “Interagency Working Group on Equitable Data” to assess the agency’s findings.
It will be interesting to see the implication of the Biden administration’s focus on “underserved” communities, and “systemic barriers” for discrimination law generally. The policy focus of the new administration likely will pave the way for more employee-friendly changes to the law— possibly, new protected classes will emerge, or new legal theories or standards of proof for disparate treatment claims under Title VII will gain footing. It would also be unsurprising if, in light of these orders, Title VII’s definition of “sex” were formally amended to include gender identity and sexual orientation. While it’s too early to tell, it’s never too early to plan.