By Jamila Brinson, Michelle Mishoe Miller, & Jackie Staple
By now, it’s no secret that President Joe Biden has been up to a flurry of activity since taking office just three weeks ago. Wielding power through his pen (well, pens), the President has signed at least 25 executive orders and 10 presidential memoranda, with no signs of stopping.[1]
Several of Biden’s Executive Orders and a Memorandum described below address areas of anti-discrimination, diversity, and inclusion. President Biden’s actions demonstrate a mission to eliminate discrimination and willingness to take executive action where he believes Congress has not done so or will not do so. Employers should keep this in mind as they review, update, or revamp their diversity, equity, and inclusion policies and trainings to ensure compliance.
No Race Discrimination Against Asians
Memorandum Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States
Presidential Memorandum – January 26, 2021
President Biden has acknowledged and condemned discriminatory attitudes and hate crimes toward people of Asian descent, particularly those that have grown from the COVID-19 pandemic due to its origin in Wuhan, China. Presumably in reference to former President Trump, the Executive Order calls out the federal government for spreading these sentiments through “actions of political leaders.” The Memorandum directs the Secretary of Health and Human Services and the COVID-19 Health Equity Task Force to develop guidance on best practices for advancing cultural competency toward Asian Americans and Pacific Islanders; and asks all federal agencies to be mindful of the messages they convey in their statements and publications.
No Transgender Discrimination in the Military
Enabling All Qualified Americans to Serve their Country in Uniform
Executive Order No. 14004 – January 25, 2021
On August 25, 2017, former President Donald Trump signed a memorandum entitled Military Service by Transgender Individuals, which was followed by a related March 23, 2018 Memorandum for the Secretary of Defense [and] the Secretary of Homeland Security. Trump pronounced to return the Department of Defense and Department of Homeland Security’s pre-Obama policies that banned most openly transgender individuals from joining and serving in the United States Armed Forces, and the use of federal funds for sex-reassignment surgical procedures. Trump’s administration grandfathered in some service members but required new recruits to serve in their gender assigned at birth. Transgender persons with a history or diagnosis of gender dysphoria were typically disqualified from service.
President Biden’s Executive Order pronounces, “[I]t shall be the policy of the United States to ensure that all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and freely of discrimination.” It states that an inclusive military is a stronger military and that “gender identity should not be a bar to military service.” It reaffirms a 2016 study requested by the Department of Defense that found no substantial evidence that service members who are transgender have a “meaningful negative impact” on the Armed Forces—a study the Trump administration declined to follow.
To summarize, current service members will not be separated or discharged because of their gender identity, and previous separations or discharges may be reexamined.
No Gender Identity or Sexual Orientation Discrimination
Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
Executive Order No. 13988 – January 20, 2021
Last June 2020, during some of the darkest days of the COVID-19 pandemic, the LGBTQ+ community and allies had something to celebrate: In the Bostock v. Clayton County case, the United States Supreme Court pronounced that Title VII of the Civil Rights Act prohibited covered employers from firing an employee just for being gay or transgender.
President Biden’s Executive Order bolsters Bostock beyond Title VII and makes clear that individuals should not face discrimination based on gender identity or sexual orientation. The Executive Order says other federal laws that prohibit sex discrimination—Title IX of the Education Amendments, the Fair Housing Act, and the Immigration and Nationality Act—likewise prohibit sex discrimination on the basis of gender identity or sexual orientation. President Biden, however, likely recognizing that federal courts could interpret those statutes differently, included the caveat “so long as the laws do not contain sufficient indications to the contrary.”
President Biden further states in no uncertain terms that one of his policy goals is to combat discrimination, especially when a person experiences discrimination based on their multiple protected characteristics, which he calls “overlapping” discrimination. To implement this policy, President Biden has called upon each federal agency to review its policies and other documents to be sure they comply with all statutes that prohibit sex discrimination in all of its forms and to revise those that do not comply.
Better Data on and Access to Federal Programs for Historically Marginalized Groups
Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
Executive Order No. 13985 – January 20, 2021
President Biden has called upon each federal agency to assess whether its programs and policies perpetuate systemic barriers to opportunity. These barriers may be in the form of access to federal benefits and services, procurement and contracting opportunities, or resources.
The Executive Order specifically refers to underserved groups, which include people who are Black, Latino, Indigenous, Native American, Asian American, Pacific Islander, religious minorities, LGBTQ+, disabled, live in rural areas, live in persistent poverty, or who are otherwise affected by inequality. Underserved communities may include both populations with a common characteristic and populations in the same geographic area.
President Biden has charged the Domestic Policy Counsel and Office of Management and Budget to coordinate these efforts and conduct studies. Further, the head of each federal agency must produce a plan for addressing barriers in the next year. The Executive Order also creates an Interagency Working Group on Equitable Data, known as the “Data Working Group,” that will work on gathering the types of demographic data currently missing from federal agency data sets but that is needed to assess whether the federal agencies’ policies or practices prevent access.
Finally, the Executive Order revoked former President Trump’s September 22, 2020 Executive Order 13950, which prohibited messages in workplace trainings that imply “an individual, by virtue of their race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” The now rescinded Executive Order drew attention (and confusion) from some federal contractor employers as well as federal grant recipient employers concerning its scope and impact on designing or conducting internal diversity and inclusion training programs. If an Employer made changes to adhere to the now rescinded Executive Order, now is a good time to revisit those changes in light of the new administration’s Executive Orders to date, as well as any others likely to come.
[1] Executive orders are a way for the president to issue mandatory directives or requirements related to the federal government and its agencies’ operations. They have the force of law without needing Congress’ approval. Presidential memoranda are similar, but they are not required to explain the source of the president’s authority for the directive and do not have to be published in the Federal Register.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
