By Jamie Strawbridge
Colleges and universities, federal contractors, and others who receive federal funding are understandably concerned about whether and how the Trump Administration’s push to curb DEIA programs and “equity-related” grants or contracts will affect their businesses. Many may wonder whether they must change their DEIA policies to avoid running afoul of the new administration. But in this age of uncertainty, there are three big reasons not to panic—especially when it comes to initiatives promoting the inclusion of employees with disabilities.
First, Executive Orders 14151 and 14173—the anti-DEIA orders the Trump Administration issued late last month—are unconstitutional. In a February 21 decision, a Maryland federal court concluded the orders are likely unconstitutionally vague and likely violate First Amendment free speech principles. Because the plaintiffs challenging these orders thus are likely to succeed on the merits, the court granted a preliminary injunction, putting these orders on hold while the litigation surrounding them (which could take a while) continues.
With respect to vagueness, the Court concluded that the executive order purporting to “terminate . . . ‘equity-related’ grants or contracts” is unconstitutional because it gives federal contractors and recipients of federal grants “no idea” whether the administration will deem the work they are doing to be “equity-related” and thus subject to termination. Similarly, although one order purports to declare DEI “illegal” and to subject DEI “practitioners” to government enforcement actions, it “leaves the private sector at a loss” regarding which programs and activities are purportedly “illegal,” the Court found. Perhaps more fundamentally, the Court also noted that, far from being “illegal,” “ensuring equity, diversity, and inclusion has long been a goal, and at least in some contexts arguably a requirement, of federal anti-discrimination law.”
With respect to the First Amendment, the Court also held that the orders—because they seek to restrict speech because the government disagrees with it—violates the First Amendment. Although the White House has “made clear” through its implementation of one order “that viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish,” such actions to suppress disfavored speech likely contravene free-speech guarantees, the Court concluded.
Second, companies should not abandon DEIA in the wake of the Trump Administration’s anti-DEIA actions, not only because the Trump Administration orders are unconstitutional, but also because abandoning DEIA presents its own litigation risks. As Attorneys General from Maryland and other states have explained, “[e]mployment policies incorporating diversity, equity, inclusion, and accessibility best practices are not only compliant with state and federal civil rights laws, but they also help to reduce litigation risk by affirmatively protecting against discriminatory conduct that violates the law.”
The Trump Administration’s anti-DEIA actions, and the conversation swirling around those actions, at times obscures the actual policies and practices at issue. “DEI” and “DEIA” are broad terms that generally refer to efforts to counter biases and stereotypes and help bring about more equitable and inclusive institutions. Far from unlawful, many such measures are legally required. When it comes to job applicants with disabilities, for instance, ensuring that job applicants are not discriminated against in the application process—including by ensuring that applicants with disabilities receive the accommodations they need—is required by federal law, including the Americans with Disabilities Act. Similarly, the federal government and companies are legally required to ensure employees receive accommodations they need once on the job.
With respect to broader “DEIA” initiatives, ensuring that all employees, including employees with disabilities, are given the support they need to thrive is lawful and helps guard against unlawful discrimination in the workplace—reducing legal risks for companies and other institutions. The same goes for employee trainings on unconscious bias and disability awareness, anti-harassment trainings, and processes and procedures for reporting on and responding to allegations of discrimination—as a general matter, these are still lawful. And even with respect to affirmative action, there is no constitutional argument against disability-based affirmative action and laws such as Sections 501 and 503 of the Rehabilitation Act require it for federal agencies and federal contractors. In short, private-sector institutions need not and should not abandon lawful “DEIA” policies.
Third, DEIA initiatives actually help businesses grow and thrive. Studies consistently conclude that the business case for diversity is strong. If your organization could benefit from guidance on how best to implement DEIA policies and practices to help mitigate the risk of lawsuits and ensure continued financial success, consider contacting us today.
About Jamie Strawbridge:
Jamie Strawbridge’s practice includes cases involving civil rights, disability rights, housing discrimination, and commercial litigation. Jamie has represented individuals and companies in cases involving discrimination, harassment, police misconduct, contractual disputes, and products liability claims. His appellate experience includes drafting appeals in federal and state court and briefs in opposition to petitions for certiorari before the Supreme Court
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.