What DEI Changes Mean for Employers Featuring Patice Holland

Summary

Emerging Litigation Podcast

Episode: What DEI Changes Mean for Employers | Featuring Patice Holland

Host: Tom Hagy
Guest: Patice Holland, Principal at Woods Rogers, Employment Litigator, JEDI Chair
Date: April 30, 2025

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EPISODE OVERVIEW

Main Theme:
This episode explores the profound changes to Diversity, Equity, and Inclusion (DEI) practices in the wake of the Trump administration’s executive order targeting these programs. Legal expert Patice Holland discusses the current legal landscape, the difference between executive orders and federal law, the challenges for employers (public and private), and the real-world implications for businesses considering changes to DEI initiatives.

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GUEST INTRODUCTION

• About Patice Holland:
  • Principal at Woods Rogers, co-chair of Government & Special Investigations Practice (02:47)
  • Employment litigator focusing on employer compliance (01:53)
  • Chair of the firm’s JEDI (Justice, Equity, Diversity, and Inclusion) Committee
  • Co-chair of Virginia Bar Association’s Diversity Committee, substitute judge, and member of Virginia Bar Board of Governors (02:47–03:35)
  • Former semi-professional singer (01:59)

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KEY DISCUSSION POINTS & INSIGHTS

1. Background: The Trump Executive Order on DEI

• Nature of Order:
  • Eliminates use of “disparate impact” liability, mandates the end of DEI/DEIA programs in federal government, and asks agencies to focus on merit-based treatment. (04:22)
• Definition:
  • “Disparate impact” refers to policies that, while neutral on their face, disproportionately and negatively affect protected groups. (05:48)
  • DEIA adds “Accessibility” to DEI, focusing on access for people with disabilities. (06:55)
• Limits of Executive Orders:
  • “Executive orders…do not make law. They carry the force of federal law, but they don’t really make law.” — Patice Holland (05:48)
  • Orders set policy direction but employers must focus on actual legal compliance with statutes and regulations.

2. What Employers Need To Know

• Federal Law Still Governs:
  • Title VII of the Civil Rights Act (federal) and state laws like the Virginia Values Act still protect various groups even if DEI programs change. (08:24)
  • Employers must comply with Supreme Court precedents (e.g., Bostock decision protecting LGBTQ+ employees) regardless of order. (08:24)
• Review and Assessment:
  • Employers should audit all outward communications, internal policies, vision/mission statements, and job titles for DEI references. (09:37)
  • Cannot just “rename” DEI programs; superficial changes are insufficient. (10:58)

3. Understanding Title VII and State Law

• Title VII:
  • Prohibits discrimination in employment on basis of race, color, national origin, sex (incl. pregnancy, gender identity, and sexual orientation). (11:06)
• Diversity vs. Quotas:
  • “Diversity … has been politicized in so many ways…What has not changed and should not change is what the law is.” — PH (12:04)
  • Efforts to diversify should be about improving thought, background, and experience in the workplace, not quotas. (12:04–13:50)
• Virginia Values Act:
  • Broader than Title VII in some respects; includes protections for LGBTQ+, pregnancy, lactation, and covers discrimination based on hair traits (the “CROWN Act”). (14:46)

4. Current Environment: Social Reaction and Risk Assessment

• Backlash and Boycotts:
  • Companies are caught in a “damned if you do, damned if you don’t” moment—removing or retaining DEI policies can both provoke boycotts or social media campaigns. (07:44)
  • Some companies are superficially rolling back DEI without substantive changes. (09:37)
  • “Just changing the name of something is not enough…You have to really be intentional.” — PH (10:58)

5. Case Study: Target and Other Retailers (20:32)

• Target:
  • Rolled back DEI initiatives following the executive order, prompting a notable boycott that led to financial loss (~$12 billion). (22:18)
  • Target’s impact was larger due to its image as a champion of minority-owned businesses. (21:25)
  • “Target really had a target on its back because of their announcement... it affected the minority-based communities a little bit more.” — PH (22:17)
• Other Companies:
  • Walmart also rolled back DEI, but with less public outcry due to its brand history. (20:32)
  • Apple, Trader Joe’s, Costco, Ben & Jerry’s—publicly recommitted to DEI and saw positive results from consumers. (24:42–25:11)
  • “The companies that are standing their ground on [DEI] do seem to be doing better.” — Tom Hagy (25:11)

6. Key Legal Risks for Employers

• Federal Contractors:
  • Greater scrutiny if receiving federal funds. Must certify compliance with the new executive order to avoid liability under the False Claims Act. (29:38–30:54)
  • Private employers have more discretion but should balance business, legal, and reputational risks. (31:17)
• Checklist for Employers:
  • Are you a federal contractor or do you receive federal funds? (31:12)
  • Review DEI positions and consider reorganizing roles/titles. (31:17)
  • Audit external sites and internal handbooks for compliance (31:17–32:30)
  • Assess risk/benefit of policy changes to both external stakeholders and internal culture (33:36)
  • “At the end of the day, it’s a business decision. Target made a business decision, so did Costco … you have to be willing to take the consequences for your company.” — PH (33:45)

7. Impact on Employees & Corporate Culture

• Employee Morale:
  • Employers must consider how rollback of policies may affect LGBTQ+ staff, minority workers, or broader employee psychology. (34:42)
• Stakeholder Buy-In:
  • “Get a buy-in from your shareholders…Because at the end of the day, that’s really going to be important.” — PH (34:20)

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NOTABLE QUOTES & MEMORABLE MOMENTS

• On the Limits of Executive Orders:
  “Executive orders…do not make law. They carry the force of federal law, but they don’t really make law.” — Patice Holland (05:48)
• On Compliance:
  “You want to make sure your policies are lawful. That’s the key.” — PH (06:10)
• On the Politicization of DEI:
  “Diversity…has been politicized in so many ways over the years. But what has not changed and should not change is…what the law is.” — PH (12:04)
• On Company Risk Assessment: “Do you scale back those programs…do nothing…wait and see…be more aggressive…? I will say that the executive orders, though, specifically say just changing the name is not enough.” — PH (09:37–10:58)
• On Target’s Situation: “Target really had a target on its back…these boycotts then pursued. … Target took a risk and that risk unfortunately ended up [with] decreased foot traffic for their company.” — PH (22:17–25:11)
• Advice for Employers: “Look at your employee handbook. Make sure you are complying with the applicable laws: Title VII, EEO statement…at the end of the day, this could end up in court.” — PH (33:36)

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RECOMMENDED EMPLOYER ACTIONS [34:00+]

• Determine if you are a federal contractor or receive federal funds—if so, higher compliance burden
• Audit all internal policies, outward-facing websites, job descriptions, and communications
• Assess disparate impact of existing or proposed initiatives
• Secure buy-in from all stakeholders (internal and external) before making significant policy shifts
• Consider employee morale and psychological impact, and anticipate internal blowback
• Remember that business decisions about DEI now carry both legal and reputational consequences

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TIMESTAMPS FOR IMPORTANT SEGMENTS

• Patice Holland’s Background: 02:47 – 03:35
• Discussion of Executive Order & Definition of Disparate Impact: 04:22 – 07:44
• Legal Protections, State Laws, Title VII Overview: 08:24 – 11:55
• DEI’s Politicization & Value Beyond Compliance: 12:00 – 13:50
• The Virginia Values Act & Expanding Protected Classes: 14:46 – 15:50
• Corporate Cases: Target, Walmart, Boycotts: 20:32 – 25:11
• Employer Compliance Checklist & Federal Contractors: 29:38 – 34:00
• Concluding Employer Advice & Cultural Impact: 34:00 – 35:36

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Tone:
Clear, practical, direct, and nonpartisan, with occasional humor and humanizing anecdotes reflective of both Tom Hagy’s and Patice Holland’s approachable legal style.

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For legal professionals, general counsel, HR managers, and business leaders, this episode is essential listening for understanding both the current and potential future state of DEI compliance under changing federal policies.

Transcript

[A]

Foreign. Welcome to the Emerging Litigation Podcast. I'm Tom Hagee, longtime litigation enthusiast, editor, publisher, and now podcaster. I'm founder of HB Litigation, which is now part of Critical Legal Content, a business I founded in 2012 to serve as a content marketing department for law firms and litigation service providers. And now, here's today's episode. If you like what you hear, please give us a rating.

[B]

Please.

[A]

If you want to reach me, please check out my contact information in the show notes. Tees Holland. Welcome to the Emerging Litigation Podcast.

[B]

Thank you. Thanks for having me.

[A]

Yeah. So just a little bit about you. I'll briefly say what you do and then ask you if you want to say anything else. But you're Patis L. Holland, and I'm predicting you've had to correct people on your name your entire life.

[B]

Not the home, entire life.

[A]

Not the Holland Park.

[B]

Actually, I have. They thought it was Collins.

[A]

Oh, Patrice Collins.

[B]

Patrice Collins.

[A]

Okay. Oh, great. All right, excellent. I just get Tom Haggie, but they get the Tom every time. So you're a principal, which is like a partner at the. At Woods Rogers, and you are the practice co chair in the government and special investigations practice. And you're in Roanoke, Virginia. And just. This will be in the show notes, of course. But you're an attorney with a diverse litigation practice. Did you put that in there as a joke? A diverse litigation practice. Sorry.

[B]

Hey, look, that's actually my old bio.

[A]

Oh, okay.

[B]

That's been in there for years.

[A]

Okay.

[B]

All right, Very true.

[A]

All right. I know you. The main way I was introduced to you was you are an employment law attorney and you represent employers.

[B]

That's right.

[A]

What else could you tell me about yourself? Are you a bass player or whatever?

[B]

I don't play the bass, but I am a singer. I sing now mostly just at church, but I used to sing somewhat professionally before I. Before I made this full time transition to law. Oh, cool. But, yeah, I used to do a lot of. Even when I was practicing as an attorney, I did some things professionally as well.

[A]

Yeah, I used to play. I'm a drummer. I'm still a drummer, but I've always just played with friends. Mostly I played some other things, but. And I'm still in touch with somebody. I was. When I was a teenager, I was in a band with her, and she's just an exceptional pianist and singer and. And now mostly what she does is like every church in town, in a small town. So they're high demand. Yeah. Yeah. They need good musicians. Okay. What else about your practice? What can you tell me?

[B]

So you're right. I do co chair our government special investigations group and I am an employment litigator. So I do a lot of employment litigation for the firm council, employers. We deal a lot with compliance issues. And I also serve on our firm's board of directors. I serve as the chair of our firm's JEDI Committee, which is the Justice Equity, Diversity and Inclusion Committee, and also co chair that for the Virginia Bar association, the diversity committee for the Virginia Bar association, and I serve on the Virginia Bars Board of Governors. So I do a lot of stuff in our firm and outside of the firm, in the legal community as well. And I'm also a substitute Judge for the 23rd Judicial Circuit.

[A]

Is. That's a state, obviously a state.

[B]

A state court position, yes.

[A]

You said substitute. No kidding. Really? So somebody gets sick, goes on vacation, whatever, or they just need extra judging?

[B]

That's correct. I will serve and you will serve.

[A]

On any kind of case?

[B]

Any kind of case. But I usually serve in what they consider the general district courts in our district. So the general district court, you can handle civil cases, traffic cases as part of that. There's also juvenile and custody cases, domestic cases. So I serve in that capacity as well. Not as much as I used to. I've been pretty busy in my private practice, but I try to help the judges when they need it.

[A]

Oh, man. All right, you're doing good work.

[B]

I enjoy it.

[A]

And yeah, you've got a really diverse, diverse, diverse day. Okay. Okay. So I'll just briefly say what. In case anybody's been asleep for the last year, what. What has been going on? President Donald J. Trump signed an executive order, maybe more than one, eliminating the use of disparate impact liability is the way it's phrased. And maybe you can explain what that is. To ensure treatment under the law, equal treatment under the law, which. Thought we were doing that. Sorry, I'm not going to interject my own opinions. So the order, it revokes all previous presidential actions. There's been a lot of that happening. And that approved disparate impact liability, the way they put it. And he has directed all agencies to deprioritize enforcement of related statutes and regulations. It mandates the termination of all DEI and deia. I didn't. I should have looked up what that is. Programs, policies and positions within the federal government, including the chief Diversity Officer roles. So what they hope to do is restore merit based opportunity and equality of treatment, emphasizing individual effort and achievement over group outcomes. Okay, I think I did pretty well. And not Putting my opinion in there too much. But yeah. So this seems to be that they're, they, they see DEI as different than merit based. So what else might people want to know about the executive orders?

[B]

I think the first thing and something that we've counseled our clients on is that, you know, executive orders, they do not make law. They are, they carry the force of federal law, but they don't really make law. There are certainly things that the President can utilize to enforce policies. It does set the temperature right as to how the President is viewing certain policies and certain laws and looking for enforcement of those. But I think it's really important to know that you want to make sure that the policies and procedures that you have as an employer, as a federal contractor, if you have any sort of business or if you're a higher, a college or higher educational institution, that you are making sure your policies are lawful. That's the key. Certainly the executive orders, they do really target specifically DEI and are trying to dismantle diversity, equity and inclusion programs. You mentioned deia. The A is the accessibility portion there. So in that context, looking at people that have disabilities that are looking for easy access or more inclusive access, just access, period, that's what the A stands for. Yes. This administration, promptly the same day the President was inaugurated, he signed an executive order regarding diversity equity inclusion initiatives. So this is a priority of this administration. And so in terms of that, though, you just want to make sure that in terms of district impact, that's looking at things that, you know, may not be intentional, you may not have intended to discriminate. But what that executive order in terms of targeting those types of initiatives is to make sure that there's no disproportionately no negative effect of your program. It's not affecting a protected group or intentionally discriminating.

[A]

Oh, sorry to interrupt you in talking to you. When we look at some companies are, they're either getting rid of their DEI policies and getting boycotted in some cases, or they're maintaining them and getting boycotted. Or I suspect some. I'm just, this is. I have no basis in fact on this. I just suspect some are doing a superficial removal of dei, but they're not. That doesn't mean, hey, let's go out and just in discriminate. But, but in doing that, what you had told me before is make sure that you're. There are other laws in place protecting different classes. So talk about that aspect.

[B]

Absolutely. So when I say make sure you don't have any unlawful programs in Virginia specifically, they Are the courts. Virginia has the Virginia Values Act. So that's a state. There are state laws that will govern what you can and cannot do in Virginia. The courts, we are, we are all subject to Title vii if you are an employer that meets those requirements. So if you're an employer that meets that, then of course you're going to be subject to Title VII under federal laws. And there are other laws, of course, that may relate to some of the programs or policies that you have. So in terms of that, that's what we're really governed by. Those are actual laws. Executive orders, again, are not laws that they do carry the force. But what we make sure our clients are knowledgeable of and that they're adhering to are the laws that and that are the law of the land. So of course, any Supreme Court decisions that have come down, bostic decision, those have not been overturned at this time as to sexual identity, gender, all of those things, those are still laws in this country. You want to make sure that your clients and our clients know those laws are aware and their policies and procedures fall within the law. In terms of looking at your DEI policies, you mentioned boycotts and all of that. Something that I made sure when this first came down, our clients wanted to say, hey, what should we do? We have DEI programs, we have initiatives. I'll even speak for our own firm. We have, as I mentioned at the beginning, we have what's called the JEDI group. And so we looked at our own website. You want to make sure you're looking forward, looking at your outfacing communication. And also internally, do you have any policies? Do you have any procedures? What does your vision and mission statement say about your diversity programs? So those are things that private employers are looking at. If you're a federal contractor, you're receiving any type of federal funds, you've got a little bit of a different viewpoint. But in all of that, you are assessing your risk. Do you scale back those programs after you've reviewed your website, your policies, procedures? Do you take a chance and do nothing? Do you wait and see? Are you going to be more aggressive and just say, let's just scrap everything? We don't want to have a target on our back, so let's just scrap everything? Do you scale back in a subtle way, as you mentioned? I will say that the executive orders, though, specifically say just changing the name of something is not enough. So you can't just have a coded switch. You have to really be intentional in scaling back. If you're going to scale back or.

[A]

Removing and you mentioned a couple things. So just for people who are less in tune with employment law, Title vii, What is that?

[B]

So Title VII is federal law that deals with, of course, protecting. It's a federal law that prohibits discrimination and employment based on race, color, national origin. We've now added in pregnancy, sex, sexual orientation, gender identity. And then also there are some other laws, Usera, that deals with military. They're just other laws that apply for. Title VII is really the big law was enacted as part of the Civil Rights act of 1964. So employers, they are basically ensuring that they have equal employment, equal opportunity in their workplaces. And so you want to use that as the baseline. That is really the law that governs workplace, the work environment and that equal opportunity and employment.

[A]

Sounds a lot like DEI to me.

[B]

Not in a way.

[A]

Okay. It's just my lay kind of impression.

[B]

Yeah, I think it's a good point because you want to make sure you've got people that you're employing. They have, they're not going to be discriminated against. And it goes from all aspects of employment. So from hiring, firing, compensation, it looks at the entire workplace environment. I think DEI has been a loaded term for. It's been politicized in so many ways over the years. I'm not saying that from one political party or the other. No, period, it's been politicized. But I think what has not changed and should not change is, is really what the law is. And that is that we, under Title seven, if you're an employer, you are obligated under the federal law to make sure you're not discriminating against people based on their race. You're wanting to add more diversity in your workplace. It's not just we want to have a quota because of course that's unlawful. But diversity, increasing diversity can be diversity of thought. It can be geographic diversity. Right. If I'm sitting here in Roanoke, Virginia and southwest Virginia, so maybe you want your person that's further west in the state, you may not have a lot of racial diversity. For example, maybe your diversity efforts are going to be somewhat different from someone sitting on the east side of Virginia or someone that's sitting in Pennsylvania. You may have some different objectives. So I, I think diversity, again, has been a loaded politicized term, but it's truly just a need to say we want a more well rounded workforce. We want to work with people that have different backgrounds. And that's our goal. We're not trying to count, we're not having a quota, but we are looking to enhance diversity of thought and to have people that are different from us who can add and enhance our company, our work environment.

[A]

Yeah. I had a jury consultant on Terra Trask, and she was saying that she was talking about diversity in juries and on trial teams. And one of the points she made was it's not just a nice thing to do. There's value in people with perspectives that come from different places in the world. You know what I mean? Different. Different backgrounds and things.

[B]

100%.

[A]

Yeah. Especially if you're. Well, in her case, you might have a jury that's. It's going to be diverse. And so your trial team anyway. So there, there are advantages. But to your point about politic politicization, I think. I don't think anybody would argue that so many words are politicized right now. Climate change is politicized or climate. Whatever. Everything's everything. It's just that we're just in that environment right now, period. End of story. There's nothing. What's the Virginia Values Act?

[B]

So the Virginia Values act, similar to Title vii, but it's Virginia specific. And in some ways it was enacted in 2020. It's a civil rights act in Virginia that extends protections. So the civil rights law in Virginia, similar somewhat to the Title vii, but there are some extended protections in Virginia for lgbt, LGBTQ individuals. There is. We have now enacted what's called the Crown Act. So discrimination for any discrimination relating to hair traits in one's hair, how they are. If I came on today, when I met you, I think I had my hair natural. It's still natural today. Maybe I come today and my hair is braided and it's different. And there are protections in Virginia that deal with certain things such as pregnancy, lactation, all of those things. And it expands somewhat some of those federal laws that are recognized federally. But Virginia has a more specific and in some ways broader protections for its citizens in Commonwealth.

[A]

Yeah, there was a hair case. Was it a wrestler or. Oh, shoot. There was a big case about hair and I think it had to do with a wrestler. And now when I wrestled, we didn't do this. It was like in the 1800s when I wrestled. Now they wear like a head cap or something or looks like maybe a swim cap or something. We had to have ear protection, but anyway, so you could have hair. My hair was always too long. Long and they would always cut it with tape. Scissors always look great. But the. And that was Ohio. They're very strict about the hair. But I seem to me there was Like a certain type of hairstyle. Yeah, it was a certain type of hairstyle.

[B]

And.

[A]

Yeah, they wouldn't let him wrestle. And it became. I don't know if it became a court case or not, but it got a lot of national attention.

[B]

Yeah. There's a lot of cases that you probably saw in the media where students weren't allowed to go to their graduation or their singing prom because of their hair. And it's usually so specifically, it's tied to a minority status. So someone that has dreads, someone that is wearing their hair natural. But typically the cases have been someone that has their hair in locks or dreads.

[A]

Yeah. Okay.

[B]

Yeah.

[A]

I say unless it obstructs views. Graduation.

[B]

That could be a hat.

[A]

That's true. That's true. My daughter, she is a white girl, but she had dreads, which I think is controversial in some ways, but she had dreads and. Oh, my gosh. She went to school. I don't mean to. I'm not going to disparage the school. Fine school. But she was in. So she's, like, into Bob Marley, and she thinks pot should be legalized. And she's got the Grateful Dead dancing bears on her car. She's got a Bob Marley sticker on her car, and she's got dreads. And she went to school in Lynchburg, Virginia. I'm like, sweetie, just go to the police station and turn yourself in because you stand out. And sure enough, she was. Anyway, she works with. She's in Vermont and ended up in Vermont, which is better. And now she works with children with learning disabilities and autism and things like that. So. Anyway, I don't mean. She loves when I talk about her like that. Dad. Nobody wants to hear about my Lynchburg years. But anyhow. Okay. So, yeah. Hair. I didn't realize. Yeah, I never thought about that as being. Being part of it. But you mentioned. So we're talking about looking at all of your policies, ensuring that you're compliant with actual laws. Okay. Executive orders are not laws. I'm sure that'll be. If it isn't already, I should know this. They'll probably be. That'll probably end up at the Supreme Court somehow. I don't know. I'm just speculating. You know, and just as a side note, because we want to talk, I want to ask you about Target.

[B]

Yes.

[A]

Before I ask about Target, a thing that I was fearing was the influence of these policies on corporate corporations doing business. And I was concerned. The FTC has five commissioners, and they're usually balanced. You can't have more than three commissioners from one party. So when President Trump came in, he appointed his commissioner, replaced Lina Khan, who was considered liberal under Biden, but he fired the two Democratic, the two Democrats on the panel. So now there's only three people on the panel and the Republicans and, and the commissioner is very much supportive of the president. So I was just concerned, okay, they're going to be looking at mergers and acquisitions. And I was just speculating, is that going to affect the policy, is going to affect decisions there. But what I missed was the Federal Communications Commission, the head of that came out and said openly, I think it was maybe March, that if there are big mergers with companies that espouse media companies that espouse dei, that's going to be a factor. That's going to be a strike against them in the merger. And that's going on right now in the case of Paramount, which owns CBS, which runs 60 Minutes, which President Trump has sued. And right now before the FCC is this big Paramount merger with another company. And the guy came right out and said that suit will be a factor and their DEI policies will be a factor. Like, okay, so it's going to affect employers in many different ways and people doing business. Did I sound biased at all in that? I'm just, aren't I just laying out facts? Maybe.

[B]

You may be leaning a little bit.

[A]

I'm leaning, I'm trying not to, but I don't know. But that merger, I don't anything about the merger. It could be a bad merger. This is market consolidation is not always is a bad thing sometimes. But I wanted to ask you about Target. What's going on with Targets? Fine store. It's very cheerful when I go in there, have a good selection, what's happening with them?

[B]

I think Target and I wanted to be careful because I know that Walmart announced and I know you want to talk about Target, but Walmart announced of their DEI initiatives back in, I believe it was November. As soon as President Trump was elected, they announced that they were going to be rolling back their DEI initiatives as early as November. What's really unusual about Target is everybody's figuring out why is Target being the Target, no pun intended.

[A]

Yeah.

[B]

Well, Target didn't announce their rollback until January 24th. So as I mentioned before Trump, President Trump announced or signed the executive order, the first executive order relating to DEI, back on January 20. So four days later, Target says, hey, we're going to roll back. And the important part here is that again, while executive orders are not law, they do have the force of laws, right?

[A]

Sure.

[B]

So I think Target and Target is not a client of mine, so I don't know why they made certain decisions, but they decided to roll back their programs. And I think why most people focused on Target more than a Walmart, for example, because Target was really well known to promote black businesses and small business owners, minority business owners. And so the community as a whole kind of view Target as somewhat of an ally and a little bit more. But I'm not speaking on behalf of what they did or did not view Walmart as, but I think that's really where that started. And Pastor Jamal Bryant in Atlanta, Georgia after that announcement initiated this 40 day boycott in conjunction with the Lent Linton season. Right. So that's where the 40 day boycott came from.

[A]

Oh, I didn't know.

[B]

But immediately before that, people started boycotting Target immediately and they started seeing a reduction in their foot traffic and then they started seeing a huge reduction in their, their money that they were receiving. So they had a lot of losses. Their, their stockholders apparently were very upset about it because there was of course decrease in their money. They lost about, I think the record loss was around 12 million, no billion dollars as a result of this boycott. And so Target really had a Target on its back because of their announcement. Again, because of the programs that they were rolling back seem to be more, seem to affect the minority based communities a little bit more and it hit harder for them. And so these boycotts then pursued. I know that Reverend Al Sharpton is announcing that he met with the CEO of Target recently and there may be a newer boycott, but there doesn't seem to be a change right now even after the 40. We're past the 40 day period of the boycott that started Target. Really going back to what I said we advise our clients of they want to look at your policies, your outward facing messages, your inward facing messages, assess your risk. They took a chance of rolling it back and it ended up not being a really great decision after all that Target's learning is not really a great decision. They're now trying to come back from somewhat of the rollback and do some different things. The executive order didn't really mandate Target to do it because it touched on the private sector. But the private sector was really nervous about kind of having an investigation or a lot of private sector employees like Target are just nervous about having a robust policy. Like it had pre executive order. And Target took a risk and that risk unfortunately ended up being decreased in foot traffic for their company. And they're still losing tons of money. The flip side real quick of that is the companies like Apple, Trader Joe's, Costco, they doubled down hard. Ben and Jerry's, they doubled down and said, we are confirming, we are confirming our commitment to ddi. Those companies did very well since that, since that confirmation, people that didn't go to Target went to Costco. If they had a Costco in their community. Target, Costco is now opening up more Costcos and Target is really feeling the effects of it. So it's really a hard balance for employers to make the decision as to how far, if at all, you roll back or do you just stand strong and take a chance? That's a company by company assessment and there's really no right or wrong answer. You just have to be willing to take the consequences of the decision for your company.

[A]

Yeah, no, that's a good way of putting it. The. Yeah, it has to be company by company. It does seem like the people that are standing strong at the moment, including with the big law firms Wilmer Hale and et cetera and Jenner, they seem to be, they seem to be winning in court. The companies that are standing their ground on it do seem to be, be doing better, I guess when we mentioned Target, because that's the closest thing to me and my wife is willing to drive further to Costco and when she does go to Costco, we have so much stuff suddenly in the house. It's just like, how much rice do you think we're going to eat? But anyway, it's a great store. And she's always coming back to me, back with shirts and things for me, I don't know why, but the, But I just figured also Target though, rolling back a policy, it doesn't look good, certainly, but I kept going to what have they actually done? Have they actually discriminated or whatever? That company has a policy or not a policy, but that's just me.

[B]

Yeah.

[A]

What's their conduct?

[B]

Yeah, I think that. And that's again, two separate analyses. Right. Because whether or not they're discriminating against folks that come to their store or their employers, excuse me, their employees, you're going to see lawsuits that come from that. You're going to see EEOC charges that come from that. That's really not what the spotlight is. And that's not really the core of the boycott. The core portion of the boycott is you are. At least they're claiming that there's divestment, divestment from the community. That is why the community now is divesting Target there. My understanding is there have been some chips that are being bargained and the CEO is now heavily involved both with speaking with Pastor Jamal Bryant in Atlanta, Georgia and as I mentioned, Sharpton as well. That's been reported in the news that there have been conversations. So there are things that they are willing now to negotiate to get back into the community, to show commitment. But does it look the same? I don't know. And they, what they really rolled back was called their reach program. And again it was just focusing on increasing and giving an opportunity to minority, to minority small businesses. And that included women as well. Not just black women, but white women, all women who were not really provided those opportunities. Maybe in other big box stores.

[A]

Yeah, yeah, that also reminds me too because there's certainly there are government lending programs for women owned, women of color owned, etc. So you wonder if those are going to be impacted. And if the Civil Rights act and Title VII are in place, you wonder if those will then be attempts to undermine or tone those down. I hope not. But the. Yeah, there's just so much going on with it right now. There's just. But I think two companies, the boycotts do seem to be working and the court challenges seem to be working. Tesla has learned that the hard way. I mean that talk about a change of fortune. Tesla cars were just like liberals with money. What do they call them? Liberal limousine Liberals always love that expression. But liberals who could afford them, who want to believe in climate change, want to have they're all snapping them up and look how my gosh, how quickly that changed. So your brand is so obviously important. But I do feel for companies when I don't like Facebook when they we're not going to have fact checking or whatever when they say these things we can hate or we can disparage Zuckerberg, which I often do with my friends, but he doesn't hear me or care. But it's like they also long time ago somebody made the statement CEOs report to shareholders. Their goals aren't for the good of society or the country. Their goals are to support share prices and shareholders, which is a reality that I think that sometimes a good company can straddle and do both. But if they make these decisions, sometimes they've got shareholders to answer to. But anyway, as I mentioned before we started sometimes I digress. But why don't we, if we could. So I think you've covered a lot of ground so maybe you could give me just, I don't know, 60 seconds on to wrap up what should an employer do right now, they want to stay compliant with the actual laws. They don't want to get in the crosshairs of the president for whatever reason. What should employers do now in light of this shift in dei?

[B]

So I want to start just saying, I know we've been talking a lot about private sector employee employers. We do represent federal contractors as well, and that's really key. And so the executive order, and we really have been talking generally about it, but it's called ending illegal discrimination and restoring merit based opportunity. I think you started talking a little bit about that, but really it applies to federal contractors or recipients of the federal funding. And so that really those employers have a different viewpoint and they're going to be looking at whether or not they have to terminate any illegal DEI or dei, the eia, all of those things. If they're receiving federal funds. They've got a little bit of a different standard or a lot of, a lot different standard than your private sector employers. Employers, I would say. And that's why you're starting to see pushback. You've seen this new lawsuit from Harvard. You've seen all of these folks who are receiving federal funds, the federal contractors, they are now having to certify that they are not violating the law, they're not having any type of dei, all of those things, and they're having to do a certification of that. So those are some ramifications that they could have under what's called the False Claims act or False Claims Reporting Act. So that's a separate thing. I know we didn't really dive into that heavy.

[A]

No, I'm glad you brought it back.

[B]

No, I just wanted to touch on that just for a second. They do have different consequences. So our advice on to federal contractors and to any employers or anyone receiving federal funds, those are a lot different than our private sector folks. But what I'll leave you with, I know you said I got sixty seconds.

[A]

No, you don't have sixty seconds. No, you don'T have sixty seconds. Because I did. I wanted to talk about this. Go ahead.

[B]

Yeah, I just want to leave with the advice really for all employer, all employers. But specifically, we do have a lot more private sector employers, but we definitely deal with our federal contractors as well. Keep those things in mind. You want to make sure that you are, you're a federal contractor, you've got your eyes dotted, T's crossed. Their risk analysis is a lot different than our private sector employers. But for my checklist, really, if someone came to me and said, hey, we See these new executive orders. What should we do? Let's walk through a checklist. I would first say, are you a federal contractor or no. Do you receive any federal funds or no. Those are the first questions I ask. Because again, the analysis is a little different for those folks. The first thing you want to do is look at what you have. Do you have a position in your company that's a DEI employee? Like the person is like the head of dei, for example, and that's their title. If that's the case, some people are, some employers are deciding to rename that position or maybe even reorganize what that person is responsible for doing. If you have again, a website looking at that information, that's, that's your outward facing communication. So if under the executive order, you're going to be investigated, perhaps because of your policies, that's going to be the first place that they're going to look. Is that your website? So you want to make sure you're looking at that website, make sure that there's nothing on your website that's unlawful violating any federal laws. Again, if you're a Virginia employer, you make sure you look at your state laws. If you're in Arizona, get those state laws. California, all of those places. The other thing you want to do is look internally, look at your own. Do you have any DEI initiatives or programs? Look at those. Do they have, could they have a disparate impact? Could they negatively or disproportionately affect or discriminate against one particular group? I would look at that, I would look at all of that. Make sure you assess your risk. So if you decide, hey, we want to just completely cut out all of our programs, how does that affect your, your customers if you're an employer? Also think about it from a law firm too. We have a lot of, you mentioned some of the law firms that are fighting back. Some of them have been specifically named in executive orders. Right. Scadden decided they're going to give some pro bono hours to the Trump administration. Some of these other firms are doing different things, but looking at how it may affect your clients, you know, on the clients that you look at, that you're dealing with. These are all assessments, unfortunately and fortunately I guess for depending on your viewp. But you have to really make, look at your employee handbook, make sure you are complying with the applicable laws. Title seven, you have an EEO statement making sure you're still lawful, because at the end of the day this could end up in court no matter where you go. And the courts do look at executive orders to say, did you have the authority to make that, Mr. President, make that executive order, and is this constitutional? And so you want to make sure if you're on the other side of things, that, that you have your house in order and that your policies are lawful and sound. And at the end of the day, it's a business decision. Target made a business decision, so did Costco. And whether you are gambling and whether that gamble pays off or not is really the decision you make. But I think at the end of the day, what I don't know that Target did, that you should do, I think is to get a buy in from your. If you have shareholders, if you have partners, if you, from your C suite, your CEO, make sure everybody's buying into what you're doing. I think it's really key that if you are going to move forward and you're going to stand your ground, everybody's buying in on that decision. Or if you decide you're going to scale back, you too have buy in for that. Because at the end of the day, that's really going to be important. And then the last thing I'll say, and I think a lot of employers forget this sometimes, is your employees. How does this affect, how does your rollback? If you're going to roll back, how does it affect your psychology, the mental awareness the your employees? So if you have LGBT employees and you have a large number of those employees, if you're getting rid of certain bathrooms or you're getting rid of certain policies that relate to that, how does that affect your employees? And what is going to be your internal blowback from those employees, if at all?

[A]

Yeah, good. Thank you for wrapping that up and thank you for steering me back to the federal contractors. I forgot to bring that up. And I guess that's going to be an interesting thing as people are applying for federal contracts.

[B]

Yeah, yeah.

[A]

Gosh. Is that going to be a question on the questionnaire?

[B]

And we scrutinized heavily.

[A]

You are going to be scrutinized, yes. Batiste Holland, thank you very much for speaking with me today. This is a obviously a hot topic. Interesting one.

[B]

Yeah, thanks for having me, Tom. I really enjoyed it.

[A]

I won't ask you to sing on the way off, but you should know that in the intro music I am playing the bongos.

[B]

Sounds great. Thank you.

[A]

The Emerging Litigation Podcast is a production of Critical Legal Content, which owns the awesome brand HB Litigation. Critical Legal Content is a company I founded in 2012. That was a long time ago. What we do is simple. We create content that's critical on legal topics for law firms and legal service providers. I believe we even have a catchy tagline, which is your legal content marketing department. That kind of content can be blogs, papers, they can be podcasts, webinars, and we have a good time doing it. And as for HB Litigation, well, that's the name under which we publish. Interesting. At least interesting to me. Legal news items, webinars, articles, guest articles, all on emerging litigation topics. That's what we do. Once again, I'm Tom Hagee with Critical Legal Counsel Content NHP Litigation. If you like what you hear and you want to participate, give me a shout. My contact information is in the show Notes. Thanks for listening. It.