Employment Laws Remain Unchanged

Keep calm and file on!

Whew, it’s been a few weeks hasn’t it? I last wrote about how narcissists love chaos and since then things have only gotten more overwhelming. It’s all a deliberate strategy to “flood the zone”, to keep media hopping around while the orange man continues to march the nation towards fascism.

While there is much to be alarmed about right now, I want to focus on one area that has not changed: employment anti-discrimination laws. I am seeing far too much panic about the “death of DEI” (diversity, equity, and inclusion) and erroneous assumptions that enforcement of employment law is over.

Not so fast! First, a civics lesson. The U.S. government has three branches: Executive (President), legislative (Congress), and judicial (courts). Contrary to what he might think, Trump is not king. The Constitution designed a system of “checks and balances” so that if one branch tries to grab too much power, the other two will step in to restore balance. (I am obviously over-simplifying here and ignoring politics at the moment, but please stay with me.)

Now, how are laws made? There has been a lot of confusion about the power of the president to simply sign an executive order and viola, new law enacted! Not really.

In theory, Congress makes the laws through a deliberative process. The executive branch’s role is to enforce the laws and the courts interpret the laws. For example, Congress made a law to create the Food and Drug Administration, which outlined in broad strokes that agency’s authority. Next, the agency is formed under the executive branch. Then it promulgates regulations and makes determinations, all under the authority of the original law that Congress enacted. That agency is held accountable by both Congress (through an oversight committee) as well as the courts if a lawsuit gets filed claiming the agency overstepped its authority. See, checks and balances.

Now, just like the FDA cannot overstep its legal authority, neither can the president; everything the government does must be authorized legally. Here is how the ACLU explains the limits of executive orders:

With an executive order, President Trump can order the federal government to take any steps that are within the scope of the constitutional authority of the executive branch, and do not violate any federal law.

So that brings us to the workplace related executive orders that have been causing some panic. For example, Trump’s attacks on DEI. We are seeing the phrase “illegal DEI” a lot, which is just silly because it assumes all such programs are illegal. Obviously any program that discriminates against one group in favor of another is already illegal. Workplaces are aware of this and have always had to design these programs accordingly. Also, any new employment policies related to DEI coming out of the executive branch cannot reach private employers, only government, and even these policies still must have legal authority. (The executive order trying to stop DEI in government contractors is being legally challenged.)

Now, let’s list the ways that current anti-discrimination laws are still in effect:

1. Title IIV of the Civil Rights Act is the federal law that protects us from discrimination at work, based on a number of characteristics. There is nothing Trump can do to overturn this law on his own.

2. Federal court decisions are still on the books, such as those that have recognized that transgender rights are protected under the Constitution.

3. State level anti-discrimination laws and related court decisions to protect employees from discrimination, harassment, and retaliation. It’s certainly true that some states are better than others. If you live state such in California those employment laws cannot be touched by anything the orange man says or does.

4. Company policies: This may be a good time to check your employer’s policies. Look for the employee handbook that you may have signed when you started. Most employers say they do not tolerate certain behaviors related to harassment, discrimination, and sometimes they include bullying. While such policies are usually not legally binding, they should carry some weight especially now.

Finally, many lawsuits are being filed every day to challenge all the BS that is coming out of Trumpland and many cases are already winning with preliminary injunctions. While enforcement of these victories is very much in question, I am inspired by the countless lawyers and advocacy organizations who are working very hard to defend our Constitution.

So buckle up, stay hydrated, and follow my mantra: Keep calm and file on.

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