Employers have seen a whirlwind of activity from the Trump administration during its first month in office. The Administration has issued Executive Orders and other guidance impacting a myriad of employment issues. Employers are now assessing to adjust their practices in light of new Trump Administration policies and guidance. One area impacted by the Administration’s new activity is pay equity. Employers considering pay equity issues should reevaluate their policies and programs in light of new Trump administration developments.
The Trump Administration has issued new Orders and guidance that impact pay equity issues in several ways. One of President Trump’s first Executive Orders eliminated race and gender based affirmative action programs required by President Johnson’s Executive Order 11246. The pay equity audits required by Executive Order 11246 are now no longer required. In addition, the Administration has issued multiple Executive Orders attacking diversity, equity and inclusion programs or other policies that it believes benefit women and minorities over white and male employees. The Administration has announced that its agencies, including the EEOC, will make it a priority to investigate and bring claims against employers with such policies. These Trump Administration announcements potentially impact pay equity efforts in several ways.
Initially, to the extent that employers conduct pay equity audits and then remediate pay equity disparities to the benefit of women and minorities, the Administration may argue that such actions discriminate against white males. Because the Administration holds that employers may not take actions to benefit women and minorities even in light of past discrimination, the Administration may argue that pay equity adjustments benefiting only women and minorities constitute race and gender based discrimination. In addition, if there are pay equity disparities that operate to the disadvantage of white males, the Trump EEOC may consider bringing claims against employers based upon those pay disparities. All of these claims may be more likely, given the activities of employees and activist groups searching for discrimination claims against white males. Reverse race and gender discrimination claims were already on the upswing before the Trump administration; we expect to see that trend accelerate during the coming years.
In light of these new developments, we recommend that employers carefully consider their pay equity processes. Employers should avoid pay equity audits that merely seek to remediate pay disparities against women and minorities; employers conducting pay equity audits should address pay disparities in both directions. In addition, when describing pay equity practices, employers should focus on the their desire to avoid discrimination against anyone, as well as equal treatment for all. The Administration has wrapped most of its pronouncements in this area in the language of equal and consistent treatment; employers would be well advised to do the same.
The first month of the Trump Administration has been a very busy time for employers seeking to comply with new Administration pronouncements. Employers would be well advised to remain vigilant and to keep abreast of new Administration announcements, including those pertaining to pay equity.
