Federal Employment Law Swings Wide Right

Changes in the Workplace

By Erica E. Flores, Esq.

Here in Massachusetts, we’ve gotten pretty accustomed to being known as a liberal bastion, a reliably blue populace governed by progressive icons like U.S. Sen. Elizabeth Warren and Gov. Maura Healey. Our laws reflect that ideology, including our many employment laws, which provide broad protections for workers on a wide array of topics, such as discrimination, harassment, retaliation, wage payments, family and medical leave, sick time, and others.

Federal law has never been nearly as protective of workers — for sure, the abysmal federal minimum wage ($7.25 per hour) has not been increased since 2009. But, still, it never really felt at odds with liberal values — just more moderate. Since President Trump took office for the second time, however, federal employment law has been changing at a breakneck pace, and not just via the president’s ever-growing stack of executive orders, but in the federal agencies and the federal courts as well.

“Employers here should start thinking about where their policies, programs, and practices are situated in the growing divide between Massachusetts’ liberal employment laws and the Trump administration’s new policies.”

“How does this affect me or my business?” you may be asking yourself. And it’s a fair question. Massachusetts businesses have to abide by the more employee-friendly Massachusetts laws, so a conservative shift in how federal employment laws are interpreted or enforced doesn’t really change employers’ obligations here. Right? Maybe not.

Under the U.S. Constitution, federal law is the supreme law of the land notwithstanding any state law to the contrary. This means that, when a state law conflicts with a federal law, the federal law trumps (no pun intended) the state law, which is rendered invalid and unenforceable. So, if a Massachusetts employment law were found to be in conflict with a federal law, the Massachusetts law would no longer govern. And conflicts are certainly brewing.

Executive Decisions

In January, President Trump signed a slew of executive orders, including two addressing “illegal” diversity, equity, and inclusion (DEI) and diversity, equity, inclusion, and accessibility (DEIA) initiatives, policies, and programs within the federal government and in place at federal contractors, federal grant recipients, and private employers who are subject to federal anti-discrimination laws.

A third executive order requires the federal government to recognize just two gender identities, male and female, as determined by the biological anatomy a person was born with, and to eliminate federal funding for gender-affirming care and the promotion of so-called “gender ideology.”

The latter also prohibits people who identify as transgender and other gender minorities from using single-sex spaces in federally funded facilities that do not conform with their biological sex, and directed the U.S. Attorney General to issue guidance that will “ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”

The federal government responded swiftly to implement these orders. The acting chair of the Equal Employment Opportunity Commission (EEOC) stated that her priorities will include “rooting out unlawful DEI-motivated race and sex discrimination,” “protecting American workers from anti-American national origin discrimination,” and “defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”

The EEOC and the Department of Justice (DOJ) also published technical assistance documents, offering guidance to employees who believe they have experienced discrimination related to DEI or DEIA programs at work. And the U.S. Deputy Attorney General announced the formation of the Civil Rights Fraud Initiative to investigate and pursue fraud claims against any recipient of federal funds that knowingly violates federal civil rights law.

The initiative will pursue its targets under the False Claims Act (FCA), a law that imposes civil liability on those who make a false statement to the government when seeking payment of government funds. The administration’s theory is that employers who accept federal funds while knowingly violating civil rights laws, or falsely certifying compliance with those laws, defrauds the federal government in violation of the FCA.

As an example, the deputy AG’s memo expressly states that a recipient of federal funding could be in violation of the FCA if it “allows men to intrude into women’s bathrooms.” The memo also encourages private citizens to report suspected DEI-related discrimination to the DOJ and to file their own FCA lawsuits against potential offenders in order to share in any monetary recovery. And the penalties can be steep. Under the FCA, violators are liable for treble damages (three times the government’s actual damages) as well as civil penalties.

Pending Appeals

Legal challenges to President Trump’s executive orders are pending, but most remain undecided. Earlier this year, a group of employers obtained a preliminary injunction that would have prevented the DEI/DEIA executive orders from taking effect while their lawsuit was pending, only to see that decision reversed on appeal, a strong indication that the challenge will ultimately fail.

Earlier this month, a federal judge in California blocked the Trump administration from enforcing both the DEI/DEIA executive orders and the executive order on gender identity, finding that the challengers in that case — a group of health centers, LGBTQ+ services groups, and the Gay Lesbian Bisexual Transgender Historical Society — had successfully demonstrated that the orders likely violate their constitutional rights.

But even if that decision is upheld on appeal, it would set the stage for a likely showdown in the U.S. Supreme Court, where a majority of the justices are considered to be conservative. In fact, the court recently ruled that a straight woman could not be required to satisfy a more demanding standard to prove that she was the victim of discrimination based on her sexual orientation than a gay person would have to satisfy, effectively eliminating the concept of so-called “reverse discrimination.”

The unanimous decision concluded that, “by establishing the same protections for every ‘individual’ — without regard to that individual’s membership in a minority or a majority group — Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

Meanwhile, a federal judge in Texas recently dealt the LGBTQ+ community yet another blow when it vacated enforcement guidance that had been published by the EEOC last year under President Biden. The guidance in question contained information about workplace harassment based on gender identity, such as intentional misgendering and denial of access to restrooms that align with an employee’s gender identity.

The state of Texas and the Heritage Foundation brought a lawsuit against the EEOC, arguing that the EEOC did not have authority to require employers to accommodate employees’ gender identities in the workplace. A federal judge in Texas agreed, holding that the EEOC could not lawfully expand the definition of ‘sex’ under Title VII of the Civil Rights Act of 1964 to include ‘gender identity’ and ‘sexual orientation’ and that Title VII does not require employers to make accommodations related to employee pronouns, bathrooms, or attire.

Back in the Bay State

Massachusetts law, by contrast, expressly protects employees from discrimination on the basis of gender identity and sexual orientation, and both the Massachusetts Commission Against Discrimination and our state courts have long agreed that denying an employee access to the restroom that corresponds to their gender identity, refusing to respect an employee’s request to use their preferred pronouns, and harassing an employee for behaviors that are believed to be inconsistent with their biological sex are forms of prohibited discrimination in Massachusetts.

Additionally, a group of 15 state attorneys general, led by Massachusetts Attorney General Joy Campbell and Illinois Attorney General Kwame Raoul, published a joint memorandum in March emphasizing the difference between DEI/DEIA programs and so-called ‘affirmative action,’ criticizing President Trump’s executive orders for conflating the two, and opining that the federal government does not have the legal authority to prohibit “otherwise lawful activities in the private sector” or to “mandate the wholesale removal of [DEI/DEIA] policies and practices within private organizations, including those that receive federal contracts and grants.”

How all of this ultimately shakes out remains to be seen, but as conflict between federal employment laws and our state’s laws seems more and more likely, employers here should start thinking about where their policies, programs, and practices are situated in the growing divide between Massachusetts’ liberal employment laws and the Trump administration’s new policies.

Erica E. Flores is a partner at Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]