In his first day in office, President Joe Biden signaled that his administration will take a different approach to D&I in the workplace than the previous administration. Corporate leaders should continue investing in D&I work, implementing policies that create equity and foster inclusion for underrepresented minorities, such as enforcing zero-tolerance rules for discrimination, harassment and retaliation. Biden’s diversity policies are more likely to align with corporate America’s recent push to respond to investor and worker demands for employment equity.

Controversial Diversity Training Order Revoked

In one of his first executive actions, Biden reversed a controversial executive order barring government contractors from certain types of racial sensitivity training in the workplace.

The September 2020 Executive Order Combating Race and Sex Stereotyping followed a White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “critical race theory,” “white privilege,” and other teachings promoting the concept that any race or ethnicity is inherently racist. The White House memorandum instructed federal agencies to cease funding such training. The Executive Order then brought federal contractors into the fold, prohibiting them from using any workplace training during the performance of a government contract that inculcates in their employees certain “divisive concepts,” and requiring them to carry those imperatives down to their subcontractors and vendors. (For more detail on the order, click here.)

Many employers found the previous administration’s Order inherently confusing and difficult to follow, among others things, and will welcome the reversal. Biden’s action are in line with his administration’s diversity and inclusion priorities, many of which are outlined below.

“Whole-of-Government” Initiative to Advance Racial Equity

Biden’s revocation of the Combating Race and Sex Stereotyping Order was included in a wider executive order directing agencies to “[advance] racial equity” by identifying and fixing issues in their policies and programs that prevent all races from being given the same “consistent and systematic fair, just, and impartial treatment.” The January 20 Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government includes the following measures:

  • Requires all federal agencies to review equity within their ranks and deliver an action plan within 200 days to address unequal barriers to opportunity found within agency policies and programs;
  • Ensures that the federal government interprets Title VII of the Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity. This order will also direct agencies to take all lawful steps to make sure that federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity, protecting the rights of LGBTQ individuals.
  • Requires the Director of the Office of Management and Budget (OMB) , in partnership with the heads of agencies, to study new methods for assessing whether agency policies and actions advance equity.

What’s Next

Biden has a 26-page plan on how he will combat racial inequity during his administration, and an equally robust Agenda for Women. According to his Build Back Better Agenda, Biden promises to “promote diversity and accountability in leadership across key positions in all federal agencies.” Based on these plans and campaign commitments, here are some key areas where we expect change under the Biden administration:

  • A push for pay transparency and enhanced litigation efforts. We predict the return of pay data collection at the federal level as part of government efforts to close the gender and race pay gap. The new administration is most likely to quickly reintroduce the EEOC’s pay data reporting requirement and refocus on systemic pay discrimination litigation as neither require Congressional action. This makes conducting regular, privileged pay equity audits with counsel all the more essential.
  • Reintroduction of the Paycheck Fairness Act. Among Biden’s gender-equality priorities is support for the proposed Paycheck Fairness Act. The bill has been introduced in Congress ten times since 1997, most recently on Jan. 30, 2019. The Democrat-controlled House passed it but it did not come up for a vote in the Republican-controlled Senate. With the recent shift in power in Congress however, passage is more likely. Under the proposed legislation, only “a bona fide factor other than sex, such as education, training or experience” can justify a pay difference between men and women who perform substantially equal jobs and work at the same establishment. Pay adjustments based on subjective criteria, including managers’ subjective evaluations of job performance, could be challenged or provide a basis for class-action litigation.
  • Enhanced protection for pregnant and nursing mothers. Biden promises to follow the lead of more than two dozen states and support the Pregnant Workers Fairness Act, which would make it a requirement for employers with 15 or more employees to provide reasonable accommodations to workers based on pregnancy, childbirth or related medical conditions, unless such an accommodation places an undue hardship on the employer. It also requires companies to engage in an interactive process with employees seeking pregnancy accommodations and prohibits them from retaliating or otherwise interfering with a pregnant worker’s right to seek a reasonable accommodation.
  • Passage of paid leave legislation. COVID-19 highlights the importance of paid leave for workers. Federal coronavirus-related paid-leave benefits expired at the end of last year; Biden wants to reinstate and expand these benefits. (Read more here.)
  • Increased enforcement actions. Since Biden has been clear in his commitment to ensuring that the equal employment opportunity laws, including laws prohibiting discrimination in pay, are vigorously enforced, we are likely to see expanded funding to the three federal civil rights enforcement agencies, DOJ, EEOC and OFCCP to support hiring additional lawyers and litigation expenses.

For help with your Diversity & Inclusion initiatives and equal pay audits, please contact your Baker McKenzie employment lawyer.