How do President Trump’s Executive Orders on DEI apply a company?  Impact on Hispanic Marketing?

By Andrew R. Turnbull / Morrison & Foerster

Some of President Trump’s actions apply only to the federal government, but several of his executive orders impact the private sector. EO 14173, for example, applies to all companies in the private sector and has additional implications and requirements for federal contractors and grantees.

• EO 14173 rescinds Executive Order 11246, which means federal contractors are no longer required to create affirmative action plans for females and minorities.
• EO 14173 requires all agencies to include in every federal contact and grant:(1) a requirement for contractors and grantees to certify that they are not “operat[ing] any programs promoting DEI that violate any applicable Federal anti-discrimination laws”; and

  (2) a requirement for contractors and grantees to agree that their “compliance in all respects with all applicable Federal anti‑discrimination laws is material to the government’s payment decisions” for purposes of the False Claims Act (“FCA”).

• EO 14173 instructs the U.S. Attorney General to prepare a strategic enforcement plan to target and “end illegal discrimination and preferences, including DEI,” identifying, among other things, key sectors of concern within each agency’s jurisdiction, the “most egregious and discriminatory DEI practitioners in each sector of concern,” a plan with “specific steps or measures to deter DEI programs or principles” that are unlawful, whether named “DEI” or not. The report must provide specific strategies to “encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws,” including requiring each federal agency (which includes over 400 agencies) to identify “[u]p to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”