Equity-Focused Executive Orders Telling for Businesses Interacting with US Government

Morgan Lewis

President Joe Biden’s first days in office have focused heavily on issues of diversity, inclusion, equity, and human rights as applied across federal agencies and programs. We anticipate that this pattern will continue and that the principles underlying his first actions will heavily influence policy, federal contracting, and eligibility to participate in federal programs, and may help businesses focus their approach to federal policymaking going forward.

In particular, and looking around the corner, it will be important for businesses and nonprofit organizations interacting with the federal government to adjust to changes in the way the federal government operates and to take affirmative advantage of these changes, rather than wait for them to be imposed on the system. Considering how private sector operations can further the underlying principles of the president’s collective actions taken in his first few days in office may be of distinct advantage in creating new opportunities and avoiding risk.

President Biden’s executive orders and directives include the following:

Executive Order on Ensuring an Equitable Pandemic Response and Recovery – Establishing a COVID-19 Health Equity Task Force chaired by the secretary of the US Department of Health and Human Services (HHS), consisting of members of other relevant agencies and up to 20 members from sectors outside the federal government appointed by the president, and further directing that the Task Force and agencies responsible for pandemic response work to address and ensure the equitable distribution of vaccines and other resources. This order is of interest to businesses that manufacture or distribute not only COVID-19 vaccines, but treatment and testing supplies and personal protective equipment (PPE).

Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities – Revoking the prior administration’s policies enforcing immigration policies and requiring the relevant agencies to develop new policies consistent with the protection of national and border security, addressing humanitarian challenges, ensuring public health and safety, and adhering to due process. This order may be of interest to businesses with a need for immigrant labor as well as those supplying goods and services along the borders to federal agencies.

Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government – Requiring a comprehensive and systemic review of policies and actions across the federal government in order to ensure that they confer equal opportunity, particularly for historically underserved communities and individuals. This order should be of interest across the business spectrum because it presents both the opportunities and the risks associated with change. Businesses should expect proposals and other interactions with the federal government to generate questions as to the impact of the business action on racial equity and related goals.

Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) – Directing the US attorney general and secretary of the US Department of Homeland Security to defer the removal of undocumented immigrants brought to the United States as children and who meet certain other qualifications. This order reinstitutes a program first established by President Obama, which President Trump then unsuccessfully sought to terminate. It directs the two Cabinet heads to “preserve and fortify” the program. This order should be of interest to employers and educational institutions.

Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census – President Trump had sought to exclude noncitizens from the census and thus the apportionment of the US House of Representatives. This order has no direct impact on business, but restores the historical status quo to the census process by revoking the former president’s action.

Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform – Establishing a policy that “all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination.” This order revokes memoranda issued by President Trump restricting service by transgender individuals.

Proclamation on Ending Discriminatory Bans on Entry to the United States – Terminating President Trump’s executive order prohibiting entry by individuals from primarily Muslim and African countries. This proclamation ends any vestige of then President Trump’s prohibitions on entry, which were opposed by the education, medical, and technology industries, among others, because the prohibitions reduced their access to knowledge and expertise based on religion rather than competence.

Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies – Requiring the US Department of Housing and Urban Development (HUD) to review the Trump administration’s actions regarding fair housing rules and the consideration of “discriminatory effects” on lending and other housing practices. Actions stemming from this memorandum may be of concern to entities that originate and service residential mortgages, as well as the real estate development and rentals industries and their suppliers.

Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities – Directing the US Department of Justice (DOJ) not to renew contracts with privately operated detention systems (prisons). This order follows on a 2016 DOJ Office of Inspector General report finding that these facilities do not provide the same levels of safety and security for inmates and correctional staff alike as the levels provided by facilities operated by the DOJ’s Bureau of Prisons. This order may be of concern to the private prison industry as well as to employers that provide other services to the federal government.

Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships – Reaffirming a 2000 directive requiring federal agency heads to consult with leaders of tribal nations, including both American Indian and Native Alaskan, on all matters affecting relevant tribal interests. This directive may be of concern to those doing business with tribal governments as well as construction, energy, and telecommunications companies that may undertake activities requiring federal permitting but that also affect tribal interests.

Memorandum Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States – This memorandum is a direct criticism of President Trump’s public statements associating COVID-19 with China, and requires federal agencies to review actions, documents, and statements to ensure that those actions do not contribute to intolerance against Asian Americans and Pacific Islanders. This memorandum may be of interest to businesses that interact with the federal government, including those contractors that may be involved in implementing the federal government’s COVID-19 response, in order to ensure that their communications are framed in a manner that does not offend the underlying principles of the memorandum, even though the memorandum does not directly address nongovernmental entities.

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation – Requiring a government-wide review of all agency actions in order to ensure that they do not discriminate based on gender identity or sexual orientation. This is a sweeping mandate that will cause a vast review and consultative process with power centralized in DOJ. It should be of concern to all doing business with the federal government as it signals a sea change in thought process and may well affect how state and local governments act as well.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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