Written by Franczek P.C. on February 28, 2025
Our “Week in Review” alerts seek to highlight the important activity related to labor and employment each week from the new presidential administration. The pace at which President Trump issued executive orders and implemented changes across federal agencies in his first weeks in office was, at times, dizzying.
While the pace has somewhat slowed, important changes continue to occur within the federal government, federal agencies, and courts that have the potential to impact employers. We highlight the important actions from last week below.
The Week in Brief:
(1) The EEOC announced an intent to shift its focus related to “national origin” discrimination under Title VII and to “re-evaluate” its guidance under the Pregnancy Workers Fairness Act;
(2) A federal judge blocked portions of President Trump’s anti-DEI executive orders;
Franczek Insights:
1. EEOC Update – By Rachel Domash and John Swinney, Franczek P.C.
The EEOC recently announced its intention to alter its focus on two anti-discrimination protections. Specifically, the EEOC announced that it will: (1) begin rigorous enforcement of antidiscrimination employment laws against employers that “illegally prefer non-American workers” under Title VI, and (2) reconsider portions of the Pregnancy Workers Fairness Act’s final implementing rules.
National Origin Protections Under Title VII
On February 19, 2025, EEOC Acting Chair Andrea Lucas announced the EEOC will “rigorously enforce” antidiscrimination laws to ensure all workers are protected from national origin discrimination, including American workers. To accomplish this, Lucas stated the EEOC will actively increase enforcement of “employment discrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.” In her announcement, Lucas stated that industries nationwide have demonstrated a large-scale, and unlawful, bias against American workers in violation of Title VII. In support of this assertion, Lucas commented that “[m]any employers have policies and practices favoring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”
Lucas’s announcement states that the EEOC will now “crack down” on this type of discrimination and ensure that national origin protections under Title VII apply equally to American citizens. In Lucas’s words, “[a]lthough Title VII’s national origin nondiscrimination requirement generally means that employers cannot prefer American workers, it equally means that employers cannot prefer non-American workers and disfavor Americans.” It is unclear at this time how this announcement will alter the EEOC’s current enforcement actions based on national origin protections. However, the announcement likely signals that the EEOC will begin to actively seek out and prosecute employment practices that it determines disfavor American citizens.
Plans to Re-Evaluate the Implementation of the Pregnant Workers Fairness Act
As we recently reported, there are currently two vacant positions on the Commission due to President Trump’s removal of Democratic Commissioners Jocelyn Samuels and Charlotte Burrows. While those positions remain vacant, the EEOC does not have a “quorum” and cannot rescind prior guidance documents or promulgate new regulations. However, in anticipation of those positions being filled, Lucas recently released a position statement in which she stated the EEOC will re-evaluate its final rules implementing the Pregnant Workers Fairness Act (“PWFA”) once a quorum is re-established at the Commission.
We have previously reported in greater detail on the PWFA rules. But, in short, the final rules require employers to provide reasonable accommodations to pregnant workers or workers who have related medical conditions. Notably, the expansive definition in the current final rules of “pregnancy, childbirth, or related medical conditions” includes, but is not limited to, current, past, potential, or intended pregnancy; termination of pregnancy, including miscarriage and abortion; postpartum depression; and lactation conditions.
Lucas’s position statement notes that the EEOC should reconsider these rules as Lucas believes they are unsupported by law. Specifically, she argues that “the rule fundamentally erred in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction” due to the expanded definition of the phrase “pregnancy, childbirth, or related medical conditions.”
Legal Challenges to the Pregnant Workers’ Fairness Act
In addition to the EEOC’s potential reconsideration of the PWFA’s final implementing rules, the PWFA is also facing challenges in court. In April of 2024, seventeen state Attorneys General brought a suit in the Eastern District of Arkansas claiming that portions of the PWFA’s final rules related to abortion infringe on the states’ sovereignty and coerce the states to “violate their policies of regulating abortion to protect unborn life.” The suit alleged that the EEOC’s stance on the PWFA would force employers to either facilitate workers’ abortions or face federal litigation. In June of 2024, the complaint was dismissed for lack of standing.
On February 20, 2025, the Eighth Circuit reversed the lower court’s decision, and found that the states do, in fact, have standing to bring the case. The Eighth Circuit did not make a determination as to the merits of the case but remanded it to the lower court for further review. A separate case challenging the PWFA on constitutional quorum requirements and proxy voting remains pending before the Fifth Circuit.
We will continue to track and report on developments from the courts and at the EEOC as they occur.
2. Federal Judge Blocks Portions of President Trump’s Anti-DEI Executive Orders – By Hailey Golds, Franczek P.C.
On Friday, February 21, 2025, a judge in the U.S. District Court for the District of Maryland issued a decision blocking portions of President Trump’s “Ending Radical and Wasteful Government DEI Programs and Preferencing” as well as his “Ending Illegal Discrimination and Restoring Merit Based Opportunity” executive orders on the basis that their anti-diversity, inclusion, and equity (“DEI”) and anti-diversity, equity, inclusion, and accessibility (“DEIA”) provisions were likely unconstitutionally vague and violate the First Amendment’s prohibition on viewpoint discrimination.
The suit was brought by the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunity Centers United, and the Mayor and City Council of Baltimore. It challenges three provisions contained in both orders: (1) “Termination Provisions” directing executive agencies to “terminate … equity-related’ grants or contracts”; (2) “Certification Provisions” that directed all executive agencies to certify that no government contractor or grantee operates “any program[] promoting DEI that violate any applicable Federal anti-discrimination laws”; and (3) “Enforcement Threat Provisions” directing the Attorney General to identify potential investigations to deter illegal discrimination, including DEI (together the “Challenged Provisions”).
The plaintiffs argued, and Judge Adam Abelson agreed, that the executive orders are unconstitutionally vague because they do not define any of the operative terms, including “DEI,” “equity-related,” “promoting DEI,” “illegal DEI,” “illegal DEI and DEIA policies,” or “illegal discrimination or preferences,” nor did they identify the types of programs or policies the administration considers “illegal.”
The opinion noted that the “Ending Radical and Wasteful Government DEI Programs and Preferencing” executive order has wide-reaching impact because approximately 20% of the nation’s labor force works for federal contractors. Given the vagueness of the order, the affected contractors and their employees would be left with no idea whether the administration would deem their contracts, grants, work, or speech, to be “equity-related.” Similarly, the court said that the “Ending Illegal Discrimination and Restoring Merit Based Opportunity” order did not provide guidance to private sector businesses as to what activities the administration considers “illegal.” Thus, the court found that the Challenged Provisions were unconstitutionally vague on their face, and likely to cause irreparable harm.
The court further found that the Challenged Provisions violate the First Amendment because they leverage funding to regulate speech outside the contours of the funded program itself, and, under the executive orders, the government would be terminating contracts because of the contractors’ speech on matters of public concern. The court noted that, while the Constitution gives the President discretion over policy, a President is not exempt from general provisions of the Constitution.
As such, a preliminary injunction was issued against the Challenged Provisions. The ruling does not, however, block the Attorney General from preparing reports or pursuing investigations related to the executive orders, and the administration has already filed an appeal, so it remains unclear how long the block will remain in place.
