Ensure Your Inclusion and Diversity Initiatives Are in Compliance

Now is the time to conduct audits to make sure that companies’ inclusion and diversity (I&D) programs are complying with Title VII of the Civil Rights Act of 1964.

Many of the Trump administration’s diversity, equity and inclusion orders concern federal employees and federal contractors, but approximately 400 agencies will each be identifying nine large employers engaged in I&D practices that are not in compliance with Title VII, noted Camille Olson, an attorney with Seyfarth in Chicago, San Francisco, and Los Angeles.

Speaking during SHRM’s Feb. 4 webinar “What to Expect from a Trump Administration and a Narrowly Divided Congress,” Olson said companies that have inclusion and diversity programs need to critically examine their practices and evaluate them for compliance and effectiveness. These companies should maintain inclusive, effective, and compliant programs, she said.

“So many workplaces today want to continue inclusion” and be employers of choice, Olson said. She urged HR to engage with executive leadership and departments, understand the risk of being challenged, and consider the concerns of stakeholders, including employees, shareholders, and vendors—“all different facets,” she said.

Employers need to have in place not just the right policies but a communication plan that explains the policies to all constituents, Olson added.

Yasmin Nelson, senior policy advisor at Holland & Knight in Washington, D.C., agreed, saying that the Trump administration is moving quickly. Employers should ensure that internal and external stakeholders associated with their organization are on the same page, she noted.

Emily M. Dickens, J.D., SHRM chief of staff and head of government affairs, noted other top priorities this year for SHRM in addition to inclusion and diversity, including regulatory changes, artificial intelligence, workforce participation gaps, and caregiving responsibilities.

Navigating Title VII Compliance amid Recent I&D Policy Changes

Regulatory Changes

The forecast for regulations is chilly, Olson said, explaining that now, before new rules can be issued, a certain number of regulations must be withdrawn. In a Jan. 31 executive order, President Donald Trump required that whenever an agency issues a new rule or guidance, it must identify at least 10 existing rules or guidance to be repealed.

In addition, the U.S. Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) no longer have quorums following the firing of two EEOC commissioners and one NLRB member, so neither can issue regulations.

But the EEOC still can litigate and investigate in cases that already have commenced, Olson noted. Class actions requiring a commission vote can’t proceed, but, she added, run-of-the-mill cases can.

At the NLRB, approximately 90% of activity, including investigations, prior to the removal of NLRB member Gwynne Wilcox can continue, Olson added. “The vast majority of cases will continue as usual,” she emphasized.

She noted that Lori Chavez-DeRemer, Trump’s nominee for labor secretary, is supported by Sean O’Brien, the Teamsters president. Olson said Chavez-DeRemer may be able to “bridge some gaps,” reach consensus, and lean into Occupational Safety and Health Administration enforcement.

Don’t neglect what’s happening in Congress, where tax reform through a process known as reconciliation is likely to happen in a matter of months, Nelson said. HR should share what they favor because those who make their voices heard are the likeliest to influence the final legislation, she noted.

Dickens said that while attention is being paid to legislative and executive actions at the federal level, state laws affecting HR are going largely unnoticed. She urged the webinar attendees to “pay attention to state legislatures.”

Make Inclusion an Operational Strategy, Not a Standalone Program

Bipartisan Agreement

Dickens asked webinar speakers where there might be room for bipartisan agreement at the federal level.

Speaking for himself and not in any official capacity, James Redstone, a congressional staffer, said there are three main areas of likely bipartisan agreement:

• Workforce development.
• Mental health.
• Substance use disorder prevention and treatment.

Olson said that promoting AI in the workplace while encouraging ethical standards also is ripe for agreement across the aisle.

Nelson noted that AI may displace some workers and said workers need more training. She added that there may be consensus over paid family leave.

As for caregiving, Redstone noted that previous Congresses have been more receptive to increasing funding for child care than for elder care.

Dickens concluded the webinar by saying that new issues would be on the horizon and encouraging attendees to “evaluate and evolve.” Noting that there would be more SHRM webinars to come on recent developments, she added that attendees should seek to be “flexible and agile as we make our way through the first 100 days.”