Hunton Employment & Labor Perspectives

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.

Notably, on January 20, 2021, President Biden issued an Executive Order requiring federal agencies to review their regulations, policies, and programs to eliminate any policies that are inconsistent with Title VII’s prohibition against discrimination on the basis of gender identity or sexual orientation.  This Executive Order applies a 2020 Supreme Court decision (clarifying that Title VII prohibits gender identity and sexual orientation discrimination in the private sector) to federal agencies and government contractors.  Bostock v. Clayton County, 590 U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020). So, while companies in the private sector are already prohibited from discriminating against employees on the basis of their gender identity or sexual orientation, it is likely that federal agencies and departments will institute new requirements for private companies to secure federal contracts.  This may, in the future, include additional requirements for affirmative action plans and statistical reporting on the make-up of the workforce, all of which can be a burden on employers with government contracts.

President Biden also issued an Executive Order to federal agencies to promote racial equity by assessing and addressing policies and programs that may hinder equal opportunities for certain sectors of the population.  As stated on the White House’s Briefing Room website, such efforts must “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”  Included in these efforts are steps to identify and promote government budgetary opportunities for equity, as well as identifying and eliminating potential barriers to federal benefits, services, and federal contracting opportunities.  The Order also calls for creation of an “Equitable Data Working Group,” the goal of which is to gather more disaggregated demographic data from communities (i.e., distinct data sets for race, ethnicity, gender, disability, income, veteran status, and “other key demographic variables”).  The Group aims to “facilitate the sharing of information” between government agencies, which suggest such  agencies may lean on employers with government contracts to gather data and address the Executive Order’s requirements.

Employers—especially those with government contracts—should continue to monitor developments regarding these Executive Orders and consult with legal counsel to ensure compliance with the laws.