By Eve Hill
On President Trump’s first day in office, he immediately issued a new Executive Order declaring Diversity, Equity and Inclusion (“DEI”) efforts “illegal.” With this new order in effect, previous mandates that implemented DEI efforts both in the federal government and among federal contractors were revoked.
Unfortunately, the federal government and federal contractors were not the only ones affected. The Order also came after businesses in the private sector, threatening to target them with investigations. At present, federal DEI offices have been shutting their doors and placing employees on administrative leave in the wake of this order. While the rapid action has left little time to reflect and plan how to move forward, the question of how this will impact disability inclusion, nondiscrimination, and accessibility in the workplace and beyond weighs heavily on the minds of all affected as we ask: Will we be collateral damage?
Here’s what we can tell you:
Is Disability Inclusion in the Crosshairs?
While the primary focus is on race- and sex-based affirmative action, the Order lumps together “DEI” and Diversity, Equity, Inclusion and Accessibility (“DEIA”) efforts. So, disability inclusion efforts may now be under scrutiny as well.
Here’s what makes disability-based affirmative actions programs different: unlike race- and sex-based affirmative action, there is no constitutional argument against disability-based affirmative action programs, nor could they be classified as “illegal.” In fact, programs promoting disability inclusion, nondiscrimination, and accessibility are actually required under federal law, such as the Rehabilitation Act. However, laws can only be as effective as their enforcement, and if the new administration chooses to dismantle oversight, the burden to enforce these protections will be placed on individuals and advocates.
Key Protections at Stake
1. Section 501 and Schedule A
Section 501 of the Rehabilitation Act forbids discrimination by federal agencies against people with disabilities, including requiring reasonable accommodations, and it requires federal agencies to implement affirmative action for employment of people with disabilities. Specifically, federal agencies are required to aim for having people with disabilities make up 12% of their workforce, while 2% of their workforce must be people with “targeted” disabilities. These requirements come from statute and regulations, not from executive orders, which means they cannot easily be changed by the new administration. In order for the administration to implement changes to these requirements, Congress would have to act to eliminate the nondiscrimination and affirmative action requirements,and the government would need to undergo a rulemaking process and publish a new proposed rule for public notice and comment requesting to change the hiring goal. Still, it could just stop its self-oversight, and force individuals and organizations to take on the burden of enforcement.
Schedule A, the federal non-competitive hiring process, provides an employment path for people with documented severe disabilities. While Schedule A is not subject to the constitutional challenges sometimes leveled against race- and sex-based affirmative action and is not specifically mentioned in the Order, it remains unclear if the Trump Administration plans to take its hatchet to this program. This possibility is especially troublesome for people hired under the Schedule A program who are still in their probationary periods.
2. Section 503 – Affirmative Action for Federal Contractors
Protections for individuals with disabilities hired by federal contractors can be found in Section 503 of the Rehabilitation Act, which prohibits discrimination against individuals with disabilities in employment, including employees who require reasonable accommodations. Under Section 503, federal contractors must also take affirmative action to hire people with disabilities, setting a goal for people with disabilities to make up at least 7% of their workforce. Similar to the requirements under Section 501, these requirements come from statute and regulations and not executive orders, which would make it a more difficult process for the new administration to change. However, if the government chooses to stop its enforcement of the requirements, individuals and organizations will bear the burden of enforcing the law.
3. Section 504 – Accessibility Beyond Employment
Protections in employment aren’t all that the Rehabilitation Act provides. Section 504 of the Rehabilitation Act prohibits the federal government and federal grantees from discriminating on the basis of disability in providing programs and services. Once again, this is a requirement established by statute and regulations like the Section 501 and 503 requirements, meaning it cannot easily be changed by the federal government. But the current state of federal DEI offices being closed and civil rights offices being frozen complicates these protections and leaves individuals with disabilities vulnerable, while the question of who will be there to ensure their protections are implemented remains unclear.
4. Section 508 – Accessible Technology for All
Digital accessibility is also protected in the Rehabilitation Act under Section 508, which mandates that from federal websites to software, all federal electronic materials must meet the Web Content Accessibility Guidelines (WCAG). Like the other pieces of the Rehabilitation Act, these requirements are set by statute and regulations and would be difficult to change. But these protections are at risk if the new administration cuts back on its implementation efforts, placing the onus on private individuals and organizations to enforce the law. It is unclear at the moment whether the directive to close federal DEIA offices has targeted Section 508 offices.
What Lies Ahead for Accessibility?
As the dust settles in the wake of this Executive Order, ripple effects are still unfolding. Will disability inclusion survive the storm? Will nondiscrimination and accessibility requirements hold firm? Or will enforcement fade, leaving individuals and organizations to battle for their rights alone?
One thing is clear: the fight for accessibility is far from over. Advocates must remain informed, vigilant and prepared to hold both public and private entities accountable.
About Eve hill
Eve Hill is one of the nation’s leading civil rights lawyers, known especially for her work with clients with disabilities and LGBTQ+ clients. She has been recognized by Law360 as one of just 12 “Titans of the Plaintiffs’ Bar” for 2023, as well as by Lawdragon as one of the 500 Leading Lawyers in America (2022 and 2023). Her wide-ranging experience complements Brown, Goldstein & Levy’s decades of dedication to high-impact disability rights cases and its advocacy on behalf of individuals with disabilities and their families. Eve chairs the Board of Trustees for the Judge David L. Bazelon Center for Mental Health Law, a national legal advocacy organization advancing and protecting the civil rights of adults and children with mental illness. Eve also leads Inclusivity, BGL’s Strategic Consulting Group, which works with organizations to promote the education, engagement, and employment of people with disabilities. Learn more about Eve here.
About Brown Goldstein & Levy
Founded in 1982, Brown Goldstein & Levy is a law firm based in Baltimore, Maryland, with an office in Washington, D.C. The firm is nationally recognized in a wide variety of practice areas, including complex civil and commercial litigation, civil rights, health care, family law, and criminal defense. Above all else, Brown, Goldstein & Levy is a client-centered law firm that brings decades of experience and passionate, effective advocacy to your fight for justice.
