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The Impact of the Trump Administration on EEO and Affirmative Action

OutSolve

Article submitted by Debra Milstein Gardner, OutSolve Consultant.

On November 8th, Republican candidate Donald J. Trump was elected to be our 45th president. A businessman and real estate developer, President elect Trump will be our first president without any political or military experience. So let’s try to look into our crystal ball and assess how as a Republican and a businessman, his appointment will impact the EEO and affirmative action arena.

We know that Trump and his DOL nominee, Andrew Franklin “Andy” Puzder are anti-government and pro-business. Andy Puzder is currently the chief executive of CKE restaurants, parent company of Hardee’s and Carl’s Jr. He received his Juris doctorate from Washington University School of Law in St. Louis. Prior to his tenure at CKE, he was an accomplished and well-published lawyer speaking openly about his views on minimum wage, the Affordable Care Act, organized labor and the joint employer doctrine.

Specifically, Andy Puzder is:

Opposed to:

• Increasing minimum wage to $15/hour, arguing that it would increase costs for consumers, increase automation and lead to fewer jobs.

• DOL’s efforts to change the FLSA’s minimum salary requirements for certain exempt “white-collar” employees arguing that it will make more employees eligible for overtime

• Affordable Care Act

• Sick leave policies

• NLRB’s efforts to change the Joint Employer Standard

In Favor of:

• Increasing minimum wage by a reasonable amount

• Letting business run without too many government interference

• Increasing opportunities for entry-level workers

Neither Trump nor Puzder have had much involvement in EEO and affirmative action; however, they both understand the dynamics of workforce issues and employment concerns. Since we do not know what will ultimately occur until both take office and the OFCCP chair is selected, we can only take a look back at the history of other Republican administrations.

In prior shifts from a Democratic to a Republican administration, there is always fear that EEO and affirmative action laws will be on the chopping block; however, that has not been the case. As shown in the following condensed historical review, many affirmative action laws and initiatives have passed during Republican administrations.

• 1941 (Roosevelt) – E.O. 8802 prohibited government contractors from engaging in employment discrimination based on race, color or national origin. • 1973 (Nixon) – Rehabilitation Act • 1988 (Reagan) – Age Discrimination in Employment Amendments Act • 1990 (Bush) – Americans with Disabilities Act • 1990 (Bush) – Older Workers Benefit Protection Act • 1991 (Bush) – Civil Rights Act of 1991 • 2008 (George W. Bush) – Genetic Information Nondiscrimination Act

Summary

We cannot anticipate who will be selected by Puzder to chair the OFCCP nor can we predict the exact impact of the Trump administration on employment laws. Give the anti-regulation/government and pro-business stance of both Trump and Puzder, it is a safe bet to say that there will be changes. Some of those changes that are anticipated include:

• Rescinding the Fair Pay and Safe Workplace (“Blacklisting”) Executive Order 13673. A federal judge has already enjoined most of the final rule, based on principals of due process and overreach of the Executive Branch’s authority. Only the Paycheck Transparency portion of the Blacklisting rule survived and it is scheduled to become effective on January 1, 2017.

• EEOC rethinking and/or rescinding its revision of the EEO-1 Report to collect annual summary pay data and aggregate hours worked. Trump communicated the importance of equal pay but Vice President-Elect Mike Pence has been opposed to pay equity legislation.

• With the selection of a new EEOC chair and a new general counsel, there could be a change in current EEOC position on LGBT rights under Title VII. Even though Trump is supportive of LGBT rights, Pence’s record is contrary.

• If there is a change in EEOC’s position on LGBT then the same could occur for OFCCP’s E.O. that included nondiscrimination provisions for workers based on sexual orientation or gender.

• Proposed six weeks of paid maternity leave for mothers who do not receive paid leave from their employer. The leave would be funded through the existing Unemployment Insurance system.

Trump has stated that he will revoke most of President Obama’s executive orders in his few days in office. We will have to wait to see if that occurs; however, we can expect that Trump will ease some of the regulations for federal contractors.

This article is for educational purposes only and is not intended as legal advice.

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