On his very first day in office, the new President ignited a firestorm by issuing an Executive Order declaring Diversity, Equity and Inclusion (“DEI”) efforts “illegal.” The Order revoked previous mandates implementing DEI efforts in the federal government and among federal contractors.
But it didn’t stop there.
Not content with dismantling federal DEI efforts, the President’s Order also charged federal agencies with attacking DEI efforts in the private sector, including targeting up to nine large entities with investigations. As we speak, federal DEI offices are shutting their doors, with employees placed on administrative leave. And as the dust settles, questions loom: what does this mean for disability inclusion, nondiscrimination, and accessibility in the workplace and beyond? Will we be collateral damage?
Is Disability Inclusion in the Crosshairs?
While race- and sex-based affirmative action are the primary targets, the Order lumps together “DEI” and Diversity, Equity, Inclusion and Accessibility (“DEIA”) efforts. So, disability inclusion efforts may now be under scrutiny as well.
Here’s the truth: unlike race- and sex-based affirmative action, there is no constitutional argument against disability-based affirmative action programs. They are not “illegal.” In fact, programs promoting disability inclusion, nondiscrimination, and accessibility are required under federal law, such as the Rehabilitation Act. But laws are only as effective as their enforcement, and the new administration could quietly dismantle oversight, leaving individuals and advocates to shoulder the burden.
Key Protections at Stake
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- Section 501 and Schedule A
Section 501 of the Rehabilitation Act forbids discrimination by federal agencies against people with disabilities, including requiring reasonable accommodations. It also requires federal agencies to implement affirmative action for employment of people with disabilities. Federal agencies must have a goal to have 12% of their workforce be people with disabilities and 2% of their workforce be people with “targeted” disabilities. The requirements come from statute and regulations, not from executive orders, so they cannot easily be changed by the new administration. Congress would have to act to eliminate the nondiscrimination and affirmative action requirements. And the government would have to go through a rulemaking process (including publishing a proposed rule for public notice and comment) to change the hiring goal. But it could just stop its self-oversight, requiring individuals and organizations to take on the burden of enforcement.
The federal non-competitive hiring process, called Schedule A, provides an employment path for people with documented severe disabilities. Even though Schedule A is not subject to the constitutional limitations of race- and sex-based affirmative action and is not mentioned in the Order, it is unclear whether the Trump Administration will take its hatchet to this program. This prospect is particularly problematic for people who have already been hired under the Schedule A program and are still in their probationary periods.
2. Section 503 – Affirmative Action for Federal Contractors
Section 503 of the Rehabilitation Act prohibits federal contractors from discriminating against individuals with disabilities in employment, including requiring reasonable accommodations. It also requires federal contractors to take affirmative action to hire people with disabilities, aiming for a workforce where 7% are people with disabilities. Like the requirements under Section 501, these requirements come from statute and regulations, not from executive orders, so they cannot easily be changed by the new administration. But the government could just stop its enforcement of the requirements, requiring individuals and organizations to enforce the law.
3. Section 504 – Accessibility Beyond Employment
In addition to employment, the federal government and federal grantees are prohibited by Section 504 of the Rehabilitation Act from discriminating on the basis of disability in providing programs and services. This requirement is established by statute and regulations and, like the Section 501 and 503 requirements, cannot easily be changed by the federal government. But with federal DEI offices shuttered and civil rights offices frozen, will there be anyone left to ensure these protections are implemented?
4. Section 508 – Accessible Technology for All
From federal websites to software, Section 508 mandates that federal electronic materials have to meet the Web Content Accessibility Guidelines (WCAG). Like the other pieces of the Rehabilitation Act, these requirements are set by statute and regulations and would be difficult to change. But the new administration could cut back its implementation efforts, leaving it to private individuals and organizations to enforce the law. It is unclear at the moment whether the directive to close federal DEIA offices has targeted Section 508 offices.
What Lies Ahead for Accessibility?
The ripple effects of this Executive Order are still unfolding. Will disability inclusion survive the storm? Will nondiscrimination and accessibility requirements hold firm? Or will enforcement fade, leaving individuals and organizations to battle for their rights alone?
One thing is clear: the fight for accessibility is far from over. Advocates must remain vigilant, ready to hold both public and private entities accountable.
About Eve Hill:
Eve Hill, one of the nation’s leading disability and civil rights attorneys, co-leads Inclusivity. She previously served as Deputy Assistant Attorney General of the U.S. Department of Justice, Civil Rights Division, where she was responsible for oversight of the Division’s disability rights enforcement and educational civil rights implementation. Her responsibilities included enforcement, regulation, and policy development regarding accessibility requirements for websites and other digital technology; Olmstead community integration requirements in employment and education; and disability rights in education, law enforcement, and health care.
About Inclusivity Strategic Consulting:
Inclusivity Strategic Consulting works to help government and private entities navigate a clear path to web accessibility to best serve all of their audiences and minimize potential liability. Inclusivity can help organizations adopt policies and procedures, priorities, and contractual requirements to make their websites and mobile apps accessible and keep them accessible into the future. Inclusivity is part of Brown, Goldstein & Levy, a leading civil rights law firm with offices in Baltimore, MD and Washington, D.C.