Private Employees Educate Yourself: Separating Fact from Fiction in the Second Trump Administration
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The first five months of the second Trump Administration have been eventful, to say the least: from tariffs and the economic downturn, to immigration raids and deportations and more. One of the biggest national news stories since January 2025 has concerned the wide-ranging and chaotic firings carried out by President Trump, Elon Musk and the Department of Government Efficiency across more than 30 federal agencies. At least 130,000 federal workers have been laid off or targeted for layoffs. This number does not include those placed on administrative leave or those who took voluntary buyouts or retirement. And the Administration reportedly plans additional reductions in force, with a goal of eliminating another 150,000 positions. While these actions are unprecedented and disheartening to the federal workforce, many Americans have taken solace in the belief that private sector employees are safe. However, that belief is unfounded.
First of all, President Trump has issued numerous executive orders (EOs) targeting not just the federal workforce, but also government contractors and individuals who perform work for the federal government as independent contractors. Second, a good portion of the EOs direct government agents to modify their behavior towards private employees, some of them effectively reversing decades of civil rights policies and protections. And finally, the Trump Administration has eliminated many jobs in the federal agencies that enforce the rights of workers (e.g. EEOC, DOL, OFCCP). Such a reduction in the workforce will certainly impact the ability of these agencies to function effectively as watchdogs to ensure that legislation giving rights to workers is enforced.
On January 20 and 21, 2025, President Trump swiftly signed a collection of executive orders, rescinded many executive actions taken by President Biden, and put forth a number of new policy initiatives and actions. Among these many wide-ranging executive orders were two specifically targeting diversity, equity, and inclusion (“DEI”). In EO 14151, titled “Ending Radical And Wasteful Government DEI Programs And Preferencing”, President Trump addresses DEI initiatives within or closely linked to the federal government’s own activities. He ordered that “to the maximum extent allowed by law,” each federal agency should eliminate all federal DEI offices and positions, and all equity action plans, initiatives, grants or programs. This EO characterized its move against “illegal” DEI initiatives as an effort to end “illegal preferences and discrimination,” consistent with enforcement of civil rights laws. Although the EO does not define “illegal,” the policy view reflected in the orders is that DEI policies violate federal civil rights laws and undermine national unity because DEI promotes attention to individuals’ demographic identities; the executive orders also depict “illegal DEI” as a “guise” for racial and sex-based preferences.
EO 14151 also directs agency heads to compile lists of “Federal contractors who have provided DEI training or DEI training materials to agency or department employees,” and “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” Several district courts have granted a preliminary injunction against the United States Department of Labor (“DOL”), enjoining the DOL from enforcing the EO 14151. What will happen in these cases is anyone’s guess.
In his January 21, 2025, Executive Order titled, “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” (EO 14173), President Trump turned the focus to private-sector DEI-related activities. The first section of this EO states that “influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called” DEI. The Executive Order asserts that “illegal DEI” policies “violate the text and spirit of our longstanding federal civil-rights laws.” Among other actions, EO 14173 directs all executive departments and agencies “to combat illegal private-sector [diversity, equity, and inclusion (DEI)] preferences, mandates, policies, programs and activities.”
Perhaps the most far-reaching aspect of EO 14173 is its termination of all “diversity,” “equity,” “equitable decision-making,” and like mandates, including recission of a 60+ year Executive Order, (EO 11246). President John F. Kennedy issued an EO providing that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” President Lyndon B. Johnson issued EO 11246 piggybacking on that EO and, prohibiting employment discrimination based on race, color, religion, national origin (and later sex) by any contractor (or subcontractor)with federal contracts. President Barack Obama amended EO 11246 to explicitly prohibit discrimination based on sexual orientation and gender identity.
Executive Order 11246 also established the Office of Federal Contract Compliance Programs (OFCCP), as an agency under the Department of Labor, tasked with ensuring that federal contractors comply with federal equal employment opportunity laws. For decades the OFCCP has audited and investigated contractors to ensure they were meeting their obligations under the EEO laws and regulations, and if the contractors were not, the OFCCP was able to take action, including imposing sanctions against employers. This core function of ensuring federal contractors comply with EEO laws and regulations has remained the primary goal of the OFCCP during the last 60 years.
By rescinding EO 11246, President Trump has essentially eliminated the OFCCP, and just this past week, the Trump administration announced plans in the DOL’s budget documents to completely eliminate the OFCCP and transfer authority to enforce protections in federal contractors for veterans and workers with disabilities to the Equal Employment Opportunity Commission (EEOC) and the DOL EO 14173 specifically orders the OFCCP to immediately cease promoting “diversity”, enforcement of “affirmative action” and “allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” The EO directs all federal agencies to include in all contracts or grant awards a provision requiring the contractors to certify that they do not operate any programs promoting DEI “that violate any applicable Federal anti-discrimination laws” and that compliance with applicable federal anti-discrimination laws is material for payment.
The significance of EO 14173 cannot be overstated. According to the U.S. Department of Labor, as of 2016, approximately 22% of the American workforce was employed by companies contracting with the federal government to complete a project/task. This percentage equates to 36 million workers. This number does not include other type of contractors that fall under the jurisdiction of the OFCCP or individuals working side by side with federal W-2 employees to perform specific tasks where a permanent employee cannot be placed. As a result of President Trump’s EO executive orders, 25 % of all workers in the United States are losing one of their key protections from discrimination.
Although at least for now Title VII and the EEOC will still be available, there is a real distinction between OFCCP and the EEOC in terms of the rights each enforces, the number of employers each reaches (EEOC can only affect those with 15 or more employees), and the remedies available. In addition to seeking back-pay, benefits and wage adjustments, OFCCP has authority to debar contractors from future federal contracts, an extremely effective tool to urge compliance with the anti-discrimination laws. The EEOC has no such authority. Also, the OFCCP staff possesses extensive training and expertise in the procurement process that the EEOC staff does not. OFCCP’s primary mission, unlike that of the EEOC, is to undertake systemic compliance reviews which identify hiring and wage discrimination.
Executive Order 14168 entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” states that it is the “policy of the United States to recognize two sexes, male and female.” The EO redefines “sex” strictly as male or female, based on an individual’s immutable biological classification, and places new requirements on federal agencies and contractors regarding how they handle subjects related to gender identity. The EO explicitly rejects “gender ideology,” which, according to the EO, includes the notion “that males can identify as and thus become women and vice versa” and “it is possible for a person to be born in the wrong sexed body.” The EO directs all Federal agencies and employees to enforce the laws related to sex-based distinctions, using “male” and “female” based on biological sex, as defined in the EO – including in their interpretation or application of statutes, regulations or guidance. This includes that all personnel records are to reflect only the employee’s binary sex identification.
The order further directs the Attorney General to issue guidance to agencies, including the EEOC, to ensure the binary nature of sex, as well as to “correct the misapplication of … Bostock v. Clayton County, 590 U.S. 644 (2020),” the Supreme Court’s landmark decision holding that the term “sex” in Title VII includes sex, gender, sexual orientation and gender identity.
Additionally, the order directs the Attorney General, the Secretary of Labor, the General Counsel and Chair of the EEOC, as well as agency heads with enforcement responsibilities under Title VII to prioritize investigations and litigation to enforce the rights and freedoms identified in the order and to promptly rescind all inconsistent guidance documents, including the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace. It remains to be seen whether any of them will attempt to pursue policies or litigation asserting rights of the LBGT+ community, let alone accept a charge for filing based on sexual orientation or gender identity.
Since its establishment under the of the Civil Rights Act of 1964, the EEOC has been a cornerstone in upholding the civil rights of U.S. workers. The leadership of the EEOC is a five-member, bipartisan commission. The President can appoint one of the 5 members as the chairperson. The EEOC needs a quorum of at least 3 members to operate. Just weeks into his second term, Trump dismissed the two Democratic EEOC commissioners, as well as its general counsel—years before their appointments were set to expire. Trump is the first president to take such actions in the 60-year history of the EEOC. As a result, the agency lost a quorum on its leadership panel. Without a quorum, the EEOC cannot take formal actions such as voting on rulemaking, issuing new policies, or rescinding outdated guidance—paralyzing some key functions of the Commission. The legality of those firings is being challenged in court.
Acting EEOC Chair Andrea Lucas has rolled back much of the EEOC’s Biden-era guidance related to issues of gender identity discrimination and harassment against LGBTQ+ individuals. Lucas has signaled her intent to roll back additional guidance once a quorum exists at the EEOC. Further, the EEOC has issued two technical assistance documents explaining what the Trump administration considers to be “illegal” DEI in the workplace.
The Trump administration has redirected the EEOC’s priorities to focus more on investigating so-called DEI-motivated race and sex discrimination and anti-American national origin bias and discrimination. This restructuring of priorities threatens to turn the mission of the EEOC on its head by framing equity efforts intended to remedy decades of documented employment discrimination as discriminatory.
Notably, on April 23, 2025, President Trump issued EO 14281 titled “Restoring Equality of Opportunity and Meritocracy,” mandating the cessation of federal enforcement of the “disparate impact” theory of liability. Disparate impact discrimination is a form of unlawful conduct that occurs when a seemingly neutral policy or practice unduly disadvantages individuals based on their protected class. The EO states that it is the policy of the United States to eliminate the use of disparate impact liability in all contexts to the maximum extent possible. In support of this objective, the EO rescinds previous presidential actions that implemented the disparate impact doctrine , directs federal agencies to cease all utilization of the disparate impact theory of liability and calls for a comprehensive review and replacement of all implementing regulations for Title VI of the Civil Rights Act of 1964, as well as all other regulations, guidance, rules or orders, to the extent that they contemplate disparate impact liability. Although this order will likely face legal challenge, It is unlikely that the EEOC will initiate new litigation based on a disparate impact theory or will even investigate such cases. The EEOC may even dismiss pending litigation.
On March 14, 2025, President Trump issued EO 14236 reversing a regulation that raised the minimum wage for private sector workers on federal contracts to $17.75 per hour. Corporations working on government contracts are now free to cut wages for hundreds of thousands of workers back to $13.30 per hour as set by a prior EO, resulting in a pay cut of up to 25 percent. This EO, entitled, “Additional Rescissions of Harmful Executive Orders and Actions,” revoked, among other things, Executive Order 14026 of April 27, 2021, “Increasing the Minimum Wage for Federal Contractors.”
In EO 14069, President Trump revoked an EO issued by President Biden aimed at eliminating discriminatory pay practices affecting the federal contractors. The prior order addressed the use of salary history in the hiring and pay-setting processes for both federal employees and federal contractors and subcontractors. Now federal agencies, contractors and subcontractors may seek and consider information about a job applicant’s or employee’s existing or past compensation when making employment decisions.
President Trump has shaken up leadership at the top of the National Labor Relations Board (NLRB). In his first weeks in office, President Trump discharged former NLRB General Counsel Jennifer Abruzzo and removed NLRB member Gwynne Wilcox for “unduly disfavoring the interests of employers”—making very clear his expectation of a pro-employer NLRB. He then nominated a partner at the Morgan Lewis law firm to be the agency’s General Counsel, even though Morgan Lewis is currently leading the charge to have the NLRB found to be unconstitutional. The president also removed Merit Systems Protection Board (MSPB) member Cathy Harris.
The removal of NLRB member Wilcox and MSPB member Harris was unprecedented. It has been challenged in the courts, resulting in back-and-forth rulings on whether they can remain on their respective boards. On April 9, 2025, Supreme Court Chief Justice John Roberts granted a motion to temporarily stay rulings that had reinstated Wilcox and Harris while the justices consider the merits of their cases. The rulings have left the NLRB without a quorum to issue new decisions potentially overruling precedent seen as less employer-friendly.
Additionally, on February 14, 2025, newly named NLRB Acting General Counsel William B. Cowen issued Memorandum GC 25-05, rescinding twenty-nine prior general counsel memoranda, including memoranda regarding remedies and settlements in labor cases, electronic monitoring for employees, and the Board’s McLaren Macomb decision, which prohibited non-disparagement and confidentiality provisions in severance agreements.
The Trump administration has ended the Federal Trade Commission’s (FTC) Biden-era attempts to ban noncompete agreements in employment agreements and separation agreements of non-government employees. Trump appointed Commissioner Andrew Ferguson, who voted against the noncompete rule, to replace former FTC chair Lina Khan following her resignation. On March 18, 2025, President Trump discharged the two remaining Democratic commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter, both of whom voted to adopt the noncompete rule. The new acting general counsel of the National Labor Relations Board (NLRB) rescinded two memoranda issued by former general counsel Abruzzo that sought to restrict (1) noncompete agreements in employment contracts and severance agreements and (2) stay-or-pay agreements whereby employees are required to remain employees for a specific period of time or else reimburse an employer for certain costs incurred. Additionally, the Trump administration dropped two appeals of district court rulings concerning non-competes.
In addition to changing the makeup of the NLRB , the Trump administration took steps to weaken the rights of workers to organize and collectively bargain, according to the Economic Policy Institute. Trump has rolled back an EO issued by President Biden requiring federal contractors to recognize existing unions in successor contracts and offer jobs to their predecessors’ employees before hiring new workers. Trump also reduced the function of the Federal Mediation and Conciliation Service, which provides mediation, training, and facilitation to resolve disagreements between unions and employers. Finally, President Trump nominated Crystal Casey, a partner at law firm Morgan Lewis, to be General Counsel at the NLRB.
President Trump also delayed the implementation of a Biden-era rule that would make it harder for employers to misclassify workers as independent contractors.
As you can see, these recent actions by the Trump administration have put federal and private sector working Americans at greater risk of discrimination and harassment by degrading or eliminating long-standing legislation, regulations, guidance and programs that had been enacted to protect all workers. The result? The rights of black, female, disabled, LGBT+, low-income and other protected workers in the private sector that have slowly expanded over the past 60 years by passage of civil rights legislation, are being rolled back to levels not seen since before many of us were born.
If you have any questions about the impact of these executive orders on you or your company, feel free to contact our attorneys, Jay Rollins or Debra Schwartz by calling 404.844.4130.
