April 30, 2025 • 37 mins
As political forces target Diversity, Equity, and Inclusion programs, companies reassessing their DEI strategies must tread carefully—because, while the landscape has shifted, employment discrimination law has not.
Joining me on the Emerging Litigation Podcast is employment law attorney Patice L. Holland, a Principal at WoodsRogers in Roanoke, Va. Patice shares with me what companies need to know as they reassess their DEI initiatives in light of President Trump's recent executive orders and increasing public and political pressure.
Patice explains that while the administration has moved to eliminate disparate impact liability and deprioritize federal enforcement, core legal protections under Title VII and state laws remain fully intact. Employers—especially federal contractors—face complex new certification requirements and exposure to potential False Claims Act liability, while private businesses must weigh operational risk, employee morale, and public perception in their decisions.
We also examine the ripple effects across corporate America—from Costco and Apple, which continue to be invested in DEI, to Target and Amazon, which scaled back initiatives and faced backlash. Patice suggests practical considerations for navigating any changes, emphasizing clear communication, leadership buy-in, and careful risk assessment.
Listen in as she explains the real impact and power of the executive orders, how obligations differ for government contractors and private companies, the legal and strategic risks of altering DEI policies, and the real-world business consequences of staying the course—or stepping back.
💬 Have thoughts or want to contribute to future episodes? Email: Editor@LitigationConferences.com
Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tom Hagy (00:04):
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:25):
service providers.
And now here's today's episode.
If you like what you hear,please give us a rating.
If you want to reach me, pleasecheck out my contact
information in the show notes.
TiesPatrice Holland.
Welcome to the EmergingLitigation Podcast.
Patrice Holland (00:43):
Thank you, thanks for having me.
Tom Hagy (00:45):
Yeah, so just a little bit about you.
I'll briefly say what you doand then ask you if you want to
say anything else.
But you're Patrice L Hollandand I'm predicting you've had to
correct people on your nameyour entire life.
Patrice Holland (00:59):
Not the Holland part, actually I have, I
thought it was Collins.
Tom Hagy (01:03):
Patrice Collins.
Patrice Collins.
Patrice Holland (01:06):
Patrice Collins .
Tom Hagy (01:08):
Okay, oh, great, all right, excellent.
I just get Tom Haggy, but theyget the Tom every time.
So you're a principal, which islike a partner at the Woods
Rogers, and you are the practicecoach in the government and
special investigations practiceand you're in Roanoke, virginia,
and just this will be in theshow notes.
(01:31):
Of course, but you're anattorney with a diverse
litigation practice.
Did you put that in there as ajoke?
A diverse litigation practice?
Patrice Holland (01:37):
Sorry, hey look , that's actually my old bio.
That's been in there for years.
Okay, all right, very true.
Tom Hagy (01:45):
All right, I know the main way I was introduced to you
was you are an employment lawattorney and you represent
employers.
That's right.
What else could?
Patrice Holland (01:58):
you tell me about yourself.
Are you a bass player orwhatever the bass?
But I am a singer.
I sing now mostly just atchurch, but I used to sing
somewhat professionally before Imade this full-time transition
to law.
But yeah, I used to do a lot of.
Even when I was practicing asan attorney, I did some things
professionally as well.
Yeah.
Tom Hagy (02:20):
I used to play.
I'm a drummer, I'm still adrummer, but I've always just
played with friends mostly.
I've played some other thingsbut and I'm still in touch with
somebody I was when I was ateenager.
I was in a band with her andshe's just an exceptional
pianist and singer and and nowmostly what she does is like
every church in town and a smalltown.
Patrice Holland (02:40):
So they're in high demand.
Tom Hagy (02:42):
Yeah, yeah, they need good musicians.
Okay, what else about yourpractice?
What can you tell me?
Patrice Holland (02:47):
So you're right , I do co-chair our government
special investigations group andI am an employment litigator,
so I do a lot of employmentlitigation for the firm.
I counsel employers, we deal alot with compliance issues and I
also serve on our firm's boardof directors.
I serve as the chair of ourfirm's JEDI committee, which is
(03:10):
the Justice, equity, diversityand Inclusion Committee, and
also I co-chair that for theVirginia Bar Association the
diversity committee for theVirginia Bar Association, and I
serve on the Virginia Bar'sboard of governors.
So I do a lot of stuff in ourfirm and outside of the firm in
the legal community as well, andI'm also a substitute judge for
(03:31):
the 23rd Judicial Circuit.
Tom Hagy (03:35):
That's a state, obviously a state.
Patrice Holland (03:37):
A state court position yes.
Tom Hagy (03:39):
You said substitute.
No kidding, really.
So somebody gets sick, goes onvacation, whatever, or they just
need extra judging.
Patrice Holland (03:47):
That's correct.
I will serve.
Tom Hagy (03:49):
And you will serve on any kind of case.
Patrice Holland (03:51):
Any kind of case.
But I usually serve in whatthey 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 andcustody cases, traffic cases as
part of that there's alsojuvenile and custody cases,
domestic cases.
So I serve in that capacity aswell Not as much as I used to
(04:12):
because I've been pretty busy inmy private practice, but I try
to help the judges when theyneed it.
Tom Hagy (04:18):
Oh man, all right, you're doing good work, I enjoy
it and yeah, you've got a reallydiverse day.
Okay, so I'll just briefly saywhat, in case anybody's been
asleep for the last year.
What has been going on?
President Donald J Trump signedan executive order maybe more
than one eliminating the use ofdisparate impact liability is
(04:41):
the way it's phrased, and maybeyou can explain what that is To
ensure treatment under the law,equal treatment under the law,
which I thought we were doing.
That.
Sorry, I'm not going tointerject my own opinions.
So the order?
It revokes all previouspresidential actions there's
been a lot of that happeningthat approved disparate impact
liability, the way they put it,and he has directed all agencies
(05:03):
to deprioritize enforcement ofrelated statutes and regulations
.
It mandates the termination ofall DEI and DEIA.
I didn't.
I should have looked up whatthat is Programs, policies and
positions within the federalgovernment, including the chief
diversity officer roles.
So what they hope to do isrestore merit based opportunity
(05:24):
and equality of treatment,emphasizing individual effort
and achievement over groupoutcomes.
Okay, I think I did pretty well.
I'm not putting my opinion inthere too much, but yeah, so
this seems to be that they seeDEI as different than
merit-based.
So what else might people wantto know about the executive
(05:46):
orders?
Patrice Holland (05:49):
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 carry the force of federallaw, but they don't really make
law.
There are certainly things thatthe president can utilize to
enforce policies.
It does set the temperatureright as to how the president is
(06:10):
viewing certain policies andcertain laws and looking for
enforcement of those that youhave as an employer, as a
federal contractor, if you haveany sort of business, or if
(06:32):
you're a higher college orhigher educational institution,
that you are making sure yourpolicies are lawful.
That's the key.
Certainly, the executive orders.
They do really targetspecifically DEI and are trying
to dismantle diversity, equityand inclusion programs.
You mentioned DEIA.
The A is the accessibilityportion there.
(06:52):
So, in that context, looking atpeople that have disabilities
that are looking for easy accessor more inclusive access, just
access period that's what the Astands for.
Yes, this administration.
Promptly, the same day thepresident was inaugurated, he
signed an executive orderregarding diversity, equity and
(07:14):
inclusion initiatives.
So this is a priority of thisadministration and so, in terms
of that though you just want tomake sure that, in terms of
disparate impact that's, lookingat things that may not be
intentional, you may not haveintended to discriminate, but
what that executive order interms of targeting those types
of initiatives is to make surethat there's no
(07:34):
disproportionately no negativeeffect of your program.
It's not affecting a protectedgroup or intentionally
discriminating.
Tom Hagy (07:44):
Oh, sorry to interrupt you In talking to you.
When we look at some companies,they're either getting rid of
their DEI policies and gettingboycotted in some cases, or
they're maintaining them andgetting boycotted, or I suspect
some.
I have no basis in fact on this, but I suspect some are doing a
(08:08):
superficial removal of DEI, butthey're not.
That doesn't mean, hey, let'sgo out and discriminate, but in
doing that, what you had told mebefore is make sure that you're
.
There are other laws in placeprotecting different classes, so
talk about that aspect.
Patrice Holland (08:24):
Absolutely so when I say make sure you don't
have any unlawful programs inVirginia, specifically, they are
the courts that Virginia hasthe Virginia Values Act.
So that's a state, our statelaws, that will govern what you
can and cannot do in Virginia.
Of course we are all subject toTitle VII if you're an employer
(08:45):
that meets those requirements.
So if you're an employer thatmeets that, then of course
you're going to be subject toTitle VII under federal laws.
And there are other laws, ofcourse, that may relate to some
of the programs or policies thatyou have.
So in terms of that, that'swhat we're really governed by.
Those are actual laws.
The executive orders, again,are not laws but they do carry
the force.
(09:05):
But what we make sure ourclients are knowledgeable of and
that they're adhering to arethe laws that apply and that are
the law of the land.
So of course, any Supreme Courtdecisions that have come down
Bostick decision those have notbeen overturned at this time.
As to sexual identity, gender,all of those things, those are
still laws in this country.
(09:26):
You want to make sure that yourclients and our clients know
those laws, are aware and theirpolicies and procedures fall
within the law.
In terms of looking at your DEIpolicies.
You mentioned boycotts and allof that, something that I made
sure.
When this first came down, ourclients wanted to say, hey, what
should we do?
We have DEI programs, we haveinitiatives.
(09:47):
I'll even speak for our ownfirm.
We have, as I mentioned at thebeginning, we have what's called
the JEDI group, and so welooked at our own website.
We want to make sure you'relooking forward, looking at your
outfacing communication andalso internally, do you have any
policies?
Do you have any procedures?
What does your vision andmission statement say about your
(10:11):
diversity programs?
So those are things thatprivate 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 adifferent viewpoint, but in all
of that, you are assessing yourrisk.
Do you scale back thoseprograms after you've reviewed
your website, your policies,procedures?
Do you take a chance and donothing?
Do you wait and see?
Are you going to be moreaggressive and just say let's
(10:34):
just scrap everything?
We don't want to have a targeton our back, so let's just scrap
everything.
Do you scale back?
In a subtle way, as youmentioned?
I will say that the executiveorders, though, specifically say
just changing the name ofsomething is not enough.
So you can't just have a codedswitch.
You have to really beintentional in scaling back if
(10:57):
you're going to scale back, orremoving, and you mentioned a
couple of things.
Tom Hagy (11:00):
So just for people who are less in tune with
employment law, title VII, whatis that?
Patrice Holland (11:04):
Yeah, so Title VII is a federal law that deals
with, of course, protecting.
It's a federal law thatprohibits discrimination in
employment based on race, color,national origin.
We've now added in pregnancy,sex, sexual orientation, gender
identity.
And then also there are someother laws USERRA that deals
(11:28):
with military.
There are just other laws thatapply, but Title VII is really
the big law.
It was enacted as part of theCivil Rights Act of 1964.
So employers, they arebasically ensuring that they
have equal employment, equalopportunity in their workplaces,
and so you want to use that asthe baseline.
That is really the law thatgoverns workplace, the work
(11:52):
environment, and that equalopportunity and employment.
Tom Hagy (11:55):
Sounds a lot like DEI to me.
Patrice Holland (11:59):
Not in a way.
Tom Hagy (12:00):
OK, it's just my lay kind of impression.
Patrice Holland (12:03):
Well, yeah, I think it's a good point because
you want to make sure you've gotpeople that you're employing.
They have, they're not going tobe discriminated against, and
it goes from all aspects ofemployment.
So from hiring, firing,compensation, it looks at the
entire workplace environment.
I think DEI has been a loadedterm, for it's been politicized
(12:24):
in so many ways over the years.
I'm not saying that from onepolitical party or the other,
just period it's beenpoliticized.
But I think what has notchanged and should not change is
really what the law is and thatis that we, under Title VII, if
you're an employer, you areobligated under the federal law
to make sure you're notdiscriminating against people
(12:44):
based on their race.
You're wanting to add morediversity in your workplace.
It's not just we want to havequota, because of course that's
unlawful, but diversity.
Increasing diversity can bediversity of thought, it can be
geographic diversity, right?
So if I'm sitting here inRoanoke, virginia and southwest
Virginia, so maybe you want yourperson is further west in the
(13:08):
state.
You may not have a lot ofracial diversity, for example.
Maybe your diversity effortsare going to be somewhat
different from someone sittingon the east side of Virginia or
someone that's sitting inPennsylvania.
You may have some differentobjectives.
So I think diversity again hasbeen a loaded politicized term,
but it's truly just a need tosay.
(13:30):
We want a more well-roundedworkforce, we want to work with
people that have differentbackgrounds, and that's our goal
.
We're not trying to count,we're not having a quota, but we
are looking to enhancediversity of thought and to have
people that are different fromus who can add and enhance our
company, our work environment.
Tom Hagy (13:50):
Yeah, I had a jury consultant on Tara Trask and she
was saying that she was talkingabout diversity in juries and
on trial teams and one of thepoints she made was it's not
just a nice thing to do.
There's value in people withperspectives that come from
different places in the world.
(14:11):
You know what I mean.
Different backgrounds andthings.
Patrice Holland (14:14):
A hundred percent yeah.
Tom Hagy (14:16):
Especially if you're well, in her case you might have
a jury that's going to bediverse, and so your trial team
anyway.
So there are advantages.
But your point aboutpoliticization I don't think
anybody would argue that so manywords are politicized right now
.
Climate change is politicized,or climate whatever.
(14:37):
Everything's everything.
It's just that we're just inthat environment right now.
Period, end of story.
What's the Virginia Values Act?
Patrice Holland (14:46):
So the Virginia Values Act similar to Title VII
.
So the Virginia Values Actsimilar to Title VII, but it's
Virginia specific and in someways it was enacted in 2020.
It's a civil rights act inVirginia that sends protections.
So the civil rights law inVirginia similar somewhat to the
Title VII, but there are someextended protections in Virginia
for LGBTQ plus individuals.
(15:09):
There is we have now enactedwhat's called the Crown Act.
So discrimination for anydiscrimination relating to hair
traits in one's hair, how theyare.
If I came on today when I metyou, I think I had my hair
natural.
Tom Hagy (15:25):
It's still natural today.
Patrice Holland (15:26):
Maybe I come today and my hair is braided and
it's different and there areprotections in Virginia that
deal with certain things such aspregnancy, lactation, all of
those things, and it expandssomewhat some of those federal
laws that are recognizedfederally.
But Virginia has a morespecific and in some ways
(15:46):
broader protections for itscitizens in the Commonwealth and
in some ways broaderprotections for its citizens in
Commonwealth.
Tom Hagy (15:51):
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 awrestler.
And now when I wrestled, wedidn't do this.
It was like in the 1800s when Iwrestled.
Now they wear like a head capor something, or looks like
maybe a swim cap or something.
We had to have ear protection,but anyway, so you could have
(16:11):
hair.
My hair was always too long andthey would always cut it with
tape scissors.
I always looked great, and thatwas Ohio.
They're very strict about thehair, but it seemed to me there
was like a certain type ofhairstyle.
Yeah, it was a certain type ofhairstyle and, yeah, they
wouldn't let him wrestle.
I don't know if it became acourt case or not, but it got a
lot of national attention.
Patrice Holland (16:31):
Yeah, there's a lot of cases that you probably
saw in the media where studentsweren't allowed to go to their
graduation or their senior prombecause of their hair, and it's
usually so specifically it'stied to a minority status, so
someone that has dreads, someonethat is wearing their hair
natural, but typically the caseshave been someone that has
their hair in locks or dreads,someone that is wearing their
hair natural, but typically thecases have been someone that has
(16:52):
their hair in locks or dreads.
Tom Hagy (16:54):
Yeah, okay.
Patrice Holland (16:55):
Yeah.
Tom Hagy (16:56):
I say unless it obstructs views at graduation.
Patrice Holland (17:00):
That could be a hat.
Tom Hagy (17:02):
That's true.
That's true.
My daughter.
She is a white girl but she haddreads, which I think is
controversial in some ways.
But she had dreads and, oh mygosh, she went to school.
I don't mean to, I'm not goingto disparage the school, fine
school, but she was in.
So she's like into Bob Marleyand she thinks pot should be
legalized and she's got theGrateful Dead dancing bears on
(17:25):
her car.
She got a Bob Marley sticker onher car.
She's got a Bob Marley stickeron her car and she's got dreads.
And she went to school inLynchburg, virginia.
I'm like, sweetie, just go tothe police station and turn
yourself in because you standout.
And sure enough, she was.
Anyway, she works with, she'sin Vermont and ended up in
Vermont, which is better, andnow she works with children with
(17:47):
learning disabilities andautism and things like that.
So, anyway, I don't mean sheloves when I talk about her like
that.
Dad, no one wants to hear aboutmy Lynchburg years, but anyhow,
okay.
So, yeah, hair, I didn'trealize.
Yeah, I never thought aboutthat as being part of it, but
you mentioned.
So we're talking about lookingat all of your policies ensuring
(18:07):
that you're compliant withactual laws.
Okay, executive orders are notlaws.
I'm sure that'll be, if itisn't already.
I should know this.
That'll probably end up at theSupreme Court somehow.
I don't know.
I'm just speculating and justas a side note, because we want
to talk, I want to ask you aboutTarget.
(18:28):
Note, because we want to talk.
I want to ask you about Target.
Before I ask about Target, athing that I was fearing was the
influence of these policies oncorporate corporations doing
business, and I was concerned.
The FTC has five commissionersand they're usually balanced.
You can't have more than threecommissioners from one party.
(18:49):
So when President Trump came in, he appointed his commissioner,
replaced Lena Kahn, who wasconsidered liberal under Biden,
but he fired the two Democratic,the two Democrats on the panel.
So now there's only threepeople on the panel and they're
Republicans and the commissioneris very much supportive of the
(19:10):
president.
So I was just concerned.
Okay, they're going to belooking at mergers and
acquisitions and I was justspeculating is that going to
affect the policy, is going toaffect decisions there?
But what I missed was theFederal Communications
Commission.
The head of that came out andsaid openly I think it was maybe
March that if there are bigmergers with media companies
(19:33):
that espouse DEI, that's goingto be a factor, that's going to
be a strike against them in themerger and that's going on right
now in the case of Paramount,which owns CBS, which runs 60
Minutes, which President Trumphas sued.
Right and right now, before theFCC, is this big paramount
(19:54):
merger with another company andthe guy came right out and said
that suit will be a factor andtheir DEI policies will be a
factor, like, okay, so it'sgoing to affect employers in
many different ways and peopledoing business.
Did I sound biased at all inthat?
I'm just aren't I just layingout facts?
Maybe?
Patrice Holland (20:14):
You may be leaning a little bit.
Tom Hagy (20:16):
I'm going to try not to but that merger.
I don't know anything about themerger.
It could be a bad merger.
Market consolidation is a badthing sometimes.
But I wanted to ask you aboutTarget.
What's going on with Target?
It's a fine store.
It's very cheerful when I go inthere.
They have a good selection.
What's happening with them?
Patrice Holland (20:32):
I think Target and I wanted to be careful
because I know that Walmartannounced and I know you want to
talk about Target, but Walmartannounced their rollback of
their DEI initiatives back in Ibelieve it was November.
As soon as President Trump waselected, they announced that
they were going to be rollingback their DEI initiatives as
early as November.
What's really unusual aboutTarget is everybody's figuring
(20:54):
out why is Target being thetarget?
No pun intended, target didn'tannounce their rollback until
January 24th.
So, as I mentioned before Trump, president Trump announced or
signed the executive order thefirst executive order relating
to DEI back on January 20th.
So four days later, target says, hey, we're going to roll back.
(21:15):
And the important part here isthat, again, while executive
orders are not law, they do havethe force of law.
So I think Target and Target'snot a client of mine so I don't
know why they made certaindecisions, but they decided to
roll back their programs and Ithink why most people focus on
(21:38):
Target more than a Walmart, forexample, because Target was
really well known to promoteBlack businesses and small
business owners, minoritybusiness owners, and so the
community as a whole kind ofview Target as somewhat of an
ally and a little bit more, butI'm not speaking on behalf of
(21:59):
what they did or did not viewWalmart as, but I think that's
really where that started.
And Pastor Jamal Bryant inAtlanta, georgia, after that
announcement, initiated this40-day boycott in conjunction
with the Lent, lenten season.
Right, you do 40 days.
So that's where the 40-dayboycott came from but
immediately before that.
(22:20):
People started boycottingTarget immediately and they
started seeing a reduction intheir foot traffic, and then
they started seeing a hugereduction in their money that
they were receiving.
So they had a lot of loss.
Their stockholders apparentlywere very upset about it because
there was, of course, adecrease in their money they
(22:44):
lost about.
I think the record loss wasaround $12 billion as a result
of this boycott, and so Targetreally had a target on its back
because of their announcementAgain because of the programs
that they were rolling backseemed to be more, seemed to
affect the minority-basedcommunities a little bit more
(23:04):
and it hit harder for them.
Reverend Al Sharpton isannouncing that he met with the
CEO of Target recently and theremay be a newer boycott, but
there doesn't seem to be achange right now, even after the
40, we're past the 40-dayperiod of the boycott that
started Target.
Really going back to what I say, we advise our clients that
(23:26):
they want to look at yourpolicies, your outward-facing
messages, your inward facingmessages, assess your risk.
They took a chance of rollingit back and it ended up not
being a really great decisionafter all, but it's what targets
learning is not really a greatdecision.
They're now trying to come backfrom somewhat of the rollback
(23:47):
and do some different things.
The executive order didn'treally mandate Target to do it
because it touched on theprivate sector, but the private
sector was really nervous abouthaving an investigation.
A lot of private sectoremployees like Target are just
nervous about having a robustpolicy like it had pre-executive
(24:08):
order and Target took a riskand that risk unfortunately
ended up being decreased in foottraffic for their company and
they're still losing tons ofmoney.
The flip side real quick ofthat is the companies like Apple
, trader Joe's, costco theydoubled down hard Ben and
Jerry's they doubled down andsaid we are confirming, we are
(24:30):
confirming our commitment to DEI.
Those companies did very wellsince that confirmation.
People that didn't go to Targetwent to Costco if they had a
Costco in their community.
Costco is now opening up moreCostcos and Target is really
feeling the effects of it.
It's really a hard balance foremployers to make the decision
(24:52):
as to how far, if at all, youroll back, or do you just stand
strong and take a chance?
That's a company by companyassessment and there's really no
right or wrong answer.
You just have to be willing totake the consequences of the
decision for your company.
Tom Hagy (25:11):
Yeah, no, that's a good way of putting it.
Yeah, it has to be company bycompany.
It does seem like the peoplethat are standing strong at the
moment, including with the biglaw firms WilmerHale and et
cetera and Jenner they seem tobe winning in court.
The companies that are standingtheir ground on it do seem to
(25:32):
be doing better.
I guess when we mentionedTarget, because that's the
closest thing to me, my wife iswilling to drive further to
Costco, and when she does go toCostco we have so much stuff
suddenly in the house it's justlike how much rice do you think
we're going to eat?
But anyway, it's a great storeand she's always coming back to
me, back with shirts and thingsfor me.
I don't know why.
But the, but I just figuredalso target.
(25:53):
You know, rolling back a policy, it doesn't look good,
certainly, but I kept going to.
What have they actually done?
Have they actuallydiscriminated or whatever?
That company has a policy ornot a policy, but that's just me
.
What's their conduct?
Patrice Holland (26:12):
Yeah, I think that and that's again two
separate analyses right, becausewhether or not they're
discriminating against folksthat come to their store or
their employers excuse me, theiremployees 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 thespotlight is and that's not
really the core of the boycott.
The core portion of the boycottis you are at least they're
(26:34):
claiming that there's divestmentdivestment from the community.
That is why the community nowis divesting from Target.
My understanding is there havebeen some tips that are being
bargained and the CEO is nowheavily involved, both with
speaking with Pastor JamalBryant in Atlanta, georgia, and,
as I mentioned, sharpton aswell.
That's been reported in thenews that there have been
(26:56):
conversations, so there arethings that they are willing now
to negotiate, to get back intothe community to show commitment
.
But does it look the same?
I don't know.
And what they really rolledback was that it was called
their REACH program and again itwas just focusing on increasing
and giving an opportunity tominority, to minority small
(27:17):
businesses, and that includedwomen as well, not just black
women, but white women, allwomen who were not really
provided those opportunities,maybe in other big box stores.
Tom Hagy (27:28):
Yeah, yeah, that also reminds me too, because there's
certainly there are governmentlending programs for women owned
, women of color owned, etcetera.
So you wonder if those aregoing to be impacted.
And if the Civil Rights Act andTitle VII are in place, you
wonder if those will be attemptsto undermine or tone those down
.
I hope not, but yeah, there'sjust so much going on with it
(27:50):
right now.
But I think, too, companies,the boycotts do seem to be
working and the court challengesseem to be working.
Tesla has learned that the hardway.
I mean, talk about a change offortune.
Tesla cars were just likeliberals with money, what do
they call them?
Limousine liberals I alwayslove that expression but
(28:10):
liberals who could afford them,who want to believe in climate
change, they're all snappingthem up and look how, my gosh,
how quickly that changed.
So your brand is so obviouslyimportant.
But I do feel for companieswhen I don't know, like Facebook
, when they say we're not goingto have fact-checking or
whatever, when they say thesethings we can hate or we can
(28:32):
disparage Zuckerberg, which Ioften do with my friends, but he
doesn't hear me or care.
But it's like they also.
Long time ago somebody made thestatement CEOs report to
shareholders.
Their goals aren't for the goodof society or the country the
(28:54):
good of society or the country.
Their goals are to supportshare prices and shareholders,
which is a reality that I thinkthat sometimes a good company
can straddle and do both.
But if they make thesedecisions, sometimes they've got
shareholders to answer to.
But anyway, as I mentionedbefore we started, sometimes I
digress.
As I mentioned before westarted, sometimes I digress.
Why don't we, if we could?
So I think you've covered a lotof ground, so maybe you could
(29:18):
give me just I don't know 60seconds on a wrap up.
What should an employer doright now?
They want to stay compliantwith the actual laws.
They don't want to get in thecrosshairs of the president for
whatever reason.
What should employers do now inlight of this shift in DEI?
Patrice Holland (29:38):
So I want to start just saying I know we've
been talking a lot about privatesector employers we do
represent federal contractors aswell and that's really key.
And so the executive order andwe've really been talking
generally about it, but it'scalled ending illegal
discriminationegalDiscrimination and Restoring
Merit-Based Opportunity.
I think you started talking alittle bit about that, but
(29:58):
really it applies to federalcontractors, recipients of the
federal funding, and so thatreally those employers have a
different viewpoint and they'regoing to be looking at whether
or not they have to terminateany illegal DEI or DEIA, all of
those things.
If they're receiving federalfunds, they've got a little bit
of a different standard or a lotdifferent standard than your
(30:21):
private sector employers, Iwould say, and that's why you're
starting to see pushback.
You've seen this new lawsuitfrom Harvard.
You've seen all of these folkswho are receiving federal funds,
the federal contractors.
They're now having to certifythat they are not violating the
law.
They're not having any type ofDEI, all of those things, and
(30:41):
they're having to do acertification of that.
So those are some ramificationsthat they could have under
what's called the False ClaimsAct or False Claims Reporting
Act.
So that's a separate thing.
I know we didn't really diveinto that.
Tom Hagy (30:53):
No, I'm glad you brought it back.
Patrice Holland (30:54):
No, I just wanted to touch on that just for
a second.
They do have differentconsequences.
So our advice to federalcontractors and to any employers
or anyone receiving federalfunds those are a lot different
than our private sector folks,but what I'll leave you with.
I know you said I got 60seconds.
Tom Hagy (31:11):
No, you don't have 60 seconds.
No, you don't have 60 secondsbecause I wanted to talk about
this.
Go ahead.
Patrice Holland (31:17):
I just want to leave with the advice really for
all employers.
But specifically we do have alot more private sector
employers, but we definitelydeal with our federal
contractors as well.
Keep those things in mind.
You want to make sure that youare your federal contractor.
You've got your I's dotted, t'scrossed.
Their risk analysis is a lotdifferent than our private
(31:40):
sector employers.
But for my checklist, really,if someone came to me and said,
hey, we see these new executiveorders, what should we do?
Let's walk through a checklist.
I would first say are you afederal contractor or no?
Do you receive any federalfunds or no?
Those are the first questions Iask because, again, the
analysis is a little differentfor those folks.
(32:00):
The first thing you want to dois look at what you have.
Do you have a position in yourcompany that's a DEI employee,
like the person is like the headof DEI, for example, and that's
their title?
If that's the case, some peopleare, some employers are
deciding to rename that positionor maybe even reorganize what
that person is responsible fordoing.
(32:20):
If you have, again, a websitelooking at that information,
that's your outward facingcommunication.
So if, under the executiveorder, you're going to be
investigated, perhaps because ofyour policies.
That's going to be.
The first place that they'regoing to look is at your website
.
So you want to make sure you'relooking at that website.
Make sure that there's nothingon your website that's unlawful,
violating any federal laws.
(32:42):
Again, if you're a Virginiaemployer, you make sure you look
at your state laws.
If you're in Arizona, get thosestate laws.
California, all of those places.
The other thing you want to dois look internally, look at your
own.
Do you have any DEI initiativesor programs?
Look at those.
Do they have?
Could they have a disparateimpact?
(33:07):
Could they negatively ordisproportionately affect or
discriminate against oneparticular group?
I would look at that.
I would look at all of that.
Make sure you assess your risks.
So if you decide, hey, we wantto just completely cut out all
of our programs, how does thataffect your customers?
If you're an employer, alsothink about it from a law firm
too.
We have a lot of you mentionedsome of the law firms that are
(33:28):
fighting back.
Some of them have beenspecifically named in executive
orders.
Right, skadden decided they'regoing to give some pro bono
hours to the Trumpadministration.
Some of these other firms aredoing different things, but
looking at how it may affectyour clients, you know, on the
clients that you look at, thatyou're dealing with.
These are all assessments,unfortunately, and fortunately,
(33:49):
I guess, for depending on yourviewpoint.
But you have to really make.
Look at your employee handbook,make sure you are complying
with the applicable laws TitleVII and you have an EEO
statement, making sure you'restill lawful, because at the end
of the day, this could end upin court, no matter where you go
, and the courts do.
Look at executive orders to saydid you have the authority to
(34:10):
make that, mr President?
Make that executive order andis this constitutional?
And so you want to make sure,if you're on the other side of
that, that you have your housein order and that your policies
are lawful and sound.
And at the end of the day, it'sa business decision.
Target made a business decision,so did Costco, and whether you
are gambling and whether thatgamble pays off or not is really
(34:34):
the decision you make.
But I think, at the end of theday, 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 makesure everybody's buying into
what you're doing.
I think it's really key that ifyou are going to move forward
and you're going to stand yourground, everybody's buying in on
(34:56):
that decision.
Or if you decide you're goingto scale back, you too have
buy-in for that, because at theend of the day, that's really
going to be important.
And then the last thing I'll sayand I think a lot of employers
forget this sometimes is youremployees.
How does this affect?
How does your rollback, ifyou're going to roll back, how
does it affect your psychology,the mental awareness, your
(35:19):
employees?
So, if you have LGBT employeesand you have a large number of
those employees, if you'regetting rid of certain bathrooms
or you're getting rid ofcertain policies that relate to
that, how does that affect youremployees and what is going to
be your internal blowback fromthose employees, if at all?
Tom Hagy (35:36):
Yeah, good, thank you for wrapping that up and thank
you for steering me back to thefederal contractors.
I forgot to bring that up and Iguess that's going to be an
interesting thing as people areapplying for federal contracts.
Yeah, yeah, gosh, is that goingto be a question on the
questionnaire?
Patrice Holland (35:51):
I'm going to be scrutinized heavily.
Tom Hagy (35:54):
You are going to be scrutinized.
Yes, batiste Holland, thank youvery much for speaking with me
today.
This is obviously a hot topic,interesting one.
Patrice Holland (36:02):
Yeah, thanks for having me, tom, I really
enjoyed it.
Tom Hagy (36:04):
I won't ask you to sing on the way off, but you
should know that in the intromusic I am playing the bongos.
Patrice Holland (36:12):
Sounds great, thank you.
Tom Hagy (36:31):
The Emerging Litigation Podcast is a
production of Critical LegalContent which owns the awesome
brand HB Litigation.
Critical Legal Content is acompany I founded in 2012.
That was a long time ago.
What we do is simple we createcontent that's critical on legal
topics for law firms and legalservice providers.
I believe we even have a catchytagline, which is your legal
(36:53):
content marketing department.
That kind of content can beblogs, papers, they can be
podcasts, webinars and we have agood time doing it and S4HB
litigation well, that's the nameunder which we publish
interesting at least interestingto me legal news items,
webinars, articles, guestarticles all on emerging
litigation topics.
(37:15):
That's what we do.
Once again, I'm Tom Hagee, withCritical Legal Content and HB
Litigation.
If you like what you hear andyou want to participate, give me
a shout.
My contact information's in theshow notes.
Thanks for listening.
Thank you.
Welcome to the Emerging Litigation Podcast.
I'm Tom Hagy, longtimelitigation enthusiast, editor,
publisher and now podcaster.
I'm founder of HB Litigation,which is now part of Critical
Legal Content, a business Ifounded in 2012 to serve as a
content marketing department forlaw firms and litigation
(00:25):
service providers.
And now here's today's episode.
If you like what you hear,please give us a rating.
If you want to reach me, pleasecheck out my contact
information in the show notes.
TiesPatrice Holland.
Welcome to the EmergingLitigation Podcast.
Patrice Holland (00:43):
Thank you, thanks for having me.
Tom Hagy (00:45):
Yeah, so just a little bit about you.
I'll briefly say what you doand then ask you if you want to
say anything else.
But you're Patrice L Hollandand I'm predicting you've had to
correct people on your nameyour entire life.
Patrice Holland (00:59):
Not the Holland part, actually I have, I
thought it was Collins.
Tom Hagy (01:03):
Patrice Collins.
Patrice Collins.
Patrice Holland (01:06):
Patrice Collins .
Tom Hagy (01:08):
Okay, oh, great, all right, excellent.
I just get Tom Haggy, but theyget the Tom every time.
So you're a principal, which islike a partner at the Woods
Rogers, and you are the practicecoach in the government and
special investigations practiceand you're in Roanoke, virginia,
and just this will be in theshow notes.
(01:31):
Of course, but you're anattorney with a diverse
litigation practice.
Did you put that in there as ajoke?
A diverse litigation practice?
Patrice Holland (01:37):
Sorry, hey look , that's actually my old bio.
That's been in there for years.
Okay, all right, very true.
Tom Hagy (01:45):
All right, I know the main way I was introduced to you
was you are an employment lawattorney and you represent
employers.
That's right.
What else could?
Patrice Holland (01:58):
you tell me about yourself.
Are you a bass player orwhatever the bass?
But I am a singer.
I sing now mostly just atchurch, but I used to sing
somewhat professionally before Imade this full-time transition
to law.
But yeah, I used to do a lot of.
Even when I was practicing asan attorney, I did some things
professionally as well.
Yeah.
Tom Hagy (02:20):
I used to play.
I'm a drummer, I'm still adrummer, but I've always just
played with friends mostly.
I've played some other thingsbut and I'm still in touch with
somebody I was when I was ateenager.
I was in a band with her andshe's just an exceptional
pianist and singer and and nowmostly what she does is like
every church in town and a smalltown.
Patrice Holland (02:40):
So they're in high demand.
Tom Hagy (02:42):
Yeah, yeah, they need good musicians.
Okay, what else about yourpractice?
What can you tell me?
Patrice Holland (02:47):
So you're right , I do co-chair our government
special investigations group andI am an employment litigator,
so I do a lot of employmentlitigation for the firm.
I counsel employers, we deal alot with compliance issues and I
also serve on our firm's boardof directors.
I serve as the chair of ourfirm's JEDI committee, which is
(03:10):
the Justice, equity, diversityand Inclusion Committee, and
also I co-chair that for theVirginia Bar Association the
diversity committee for theVirginia Bar Association, and I
serve on the Virginia Bar'sboard of governors.
So I do a lot of stuff in ourfirm and outside of the firm in
the legal community as well, andI'm also a substitute judge for
(03:31):
the 23rd Judicial Circuit.
Tom Hagy (03:35):
That's a state, obviously a state.
Patrice Holland (03:37):
A state court position yes.
Tom Hagy (03:39):
You said substitute.
No kidding, really.
So somebody gets sick, goes onvacation, whatever, or they just
need extra judging.
Patrice Holland (03:47):
That's correct.
I will serve.
Tom Hagy (03:49):
And you will serve on any kind of case.
Patrice Holland (03:51):
Any kind of case.
But I usually serve in whatthey 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 andcustody cases, traffic cases as
part of that there's alsojuvenile and custody cases,
domestic cases.
So I serve in that capacity aswell Not as much as I used to
(04:12):
because I've been pretty busy inmy private practice, but I try
to help the judges when theyneed it.
Tom Hagy (04:18):
Oh man, all right, you're doing good work, I enjoy
it and yeah, you've got a reallydiverse day.
Okay, so I'll just briefly saywhat, in case anybody's been
asleep for the last year.
What has been going on?
President Donald J Trump signedan executive order maybe more
than one eliminating the use ofdisparate impact liability is
(04:41):
the way it's phrased, and maybeyou can explain what that is To
ensure treatment under the law,equal treatment under the law,
which I thought we were doing.
That.
Sorry, I'm not going tointerject my own opinions.
So the order?
It revokes all previouspresidential actions there's
been a lot of that happeningthat approved disparate impact
liability, the way they put it,and he has directed all agencies
(05:03):
to deprioritize enforcement ofrelated statutes and regulations
.
It mandates the termination ofall DEI and DEIA.
I didn't.
I should have looked up whatthat is Programs, policies and
positions within the federalgovernment, including the chief
diversity officer roles.
So what they hope to do isrestore merit based opportunity
(05:24):
and equality of treatment,emphasizing individual effort
and achievement over groupoutcomes.
Okay, I think I did pretty well.
I'm not putting my opinion inthere too much, but yeah, so
this seems to be that they seeDEI as different than
merit-based.
So what else might people wantto know about the executive
(05:46):
orders?
Patrice Holland (05:49):
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 carry the force of federallaw, but they don't really make
law.
There are certainly things thatthe president can utilize to
enforce policies.
It does set the temperatureright as to how the president is
(06:10):
viewing certain policies andcertain laws and looking for
enforcement of those that youhave as an employer, as a
federal contractor, if you haveany sort of business, or if
(06:32):
you're a higher college orhigher educational institution,
that you are making sure yourpolicies are lawful.
That's the key.
Certainly, the executive orders.
They do really targetspecifically DEI and are trying
to dismantle diversity, equityand inclusion programs.
You mentioned DEIA.
The A is the accessibilityportion there.
(06:52):
So, in that context, looking atpeople that have disabilities
that are looking for easy accessor more inclusive access, just
access period that's what the Astands for.
Yes, this administration.
Promptly, the same day thepresident was inaugurated, he
signed an executive orderregarding diversity, equity and
(07:14):
inclusion initiatives.
So this is a priority of thisadministration and so, in terms
of that though you just want tomake sure that, in terms of
disparate impact that's, lookingat things that may not be
intentional, you may not haveintended to discriminate, but
what that executive order interms of targeting those types
of initiatives is to make surethat there's no
(07:34):
disproportionately no negativeeffect of your program.
It's not affecting a protectedgroup or intentionally
discriminating.
Tom Hagy (07:44):
Oh, sorry to interrupt you In talking to you.
When we look at some companies,they're either getting rid of
their DEI policies and gettingboycotted in some cases, or
they're maintaining them andgetting boycotted, or I suspect
some.
I have no basis in fact on this, but I suspect some are doing a
(08:08):
superficial removal of DEI, butthey're not.
That doesn't mean, hey, let'sgo out and discriminate, but in
doing that, what you had told mebefore is make sure that you're
.
There are other laws in placeprotecting different classes, so
talk about that aspect.
Patrice Holland (08:24):
Absolutely so when I say make sure you don't
have any unlawful programs inVirginia, specifically, they are
the courts that Virginia hasthe Virginia Values Act.
So that's a state, our statelaws, that will govern what you
can and cannot do in Virginia.
Of course we are all subject toTitle VII if you're an employer
(08:45):
that meets those requirements.
So if you're an employer thatmeets that, then of course
you're going to be subject toTitle VII under federal laws.
And there are other laws, ofcourse, that may relate to some
of the programs or policies thatyou have.
So in terms of that, that'swhat we're really governed by.
Those are actual laws.
The executive orders, again,are not laws but they do carry
the force.
(09:05):
But what we make sure ourclients are knowledgeable of and
that they're adhering to arethe laws that apply and that are
the law of the land.
So of course, any Supreme Courtdecisions that have come down
Bostick decision those have notbeen overturned at this time.
As to sexual identity, gender,all of those things, those are
still laws in this country.
(09:26):
You want to make sure that yourclients and our clients know
those laws, are aware and theirpolicies and procedures fall
within the law.
In terms of looking at your DEIpolicies.
You mentioned boycotts and allof that, something that I made
sure.
When this first came down, ourclients wanted to say, hey, what
should we do?
We have DEI programs, we haveinitiatives.
(09:47):
I'll even speak for our ownfirm.
We have, as I mentioned at thebeginning, we have what's called
the JEDI group, and so welooked at our own website.
We want to make sure you'relooking forward, looking at your
outfacing communication andalso internally, do you have any
policies?
Do you have any procedures?
What does your vision andmission statement say about your
(10:11):
diversity programs?
So those are things thatprivate 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 adifferent viewpoint, but in all
of that, you are assessing yourrisk.
Do you scale back thoseprograms after you've reviewed
your website, your policies,procedures?
Do you take a chance and donothing?
Do you wait and see?
Are you going to be moreaggressive and just say let's
(10:34):
just scrap everything?
We don't want to have a targeton our back, so let's just scrap
everything.
Do you scale back?
In a subtle way, as youmentioned?
I will say that the executiveorders, though, specifically say
just changing the name ofsomething is not enough.
So you can't just have a codedswitch.
You have to really beintentional in scaling back if
(10:57):
you're going to scale back, orremoving, and you mentioned a
couple of things.
Tom Hagy (11:00):
So just for people who are less in tune with
employment law, title VII, whatis that?
Patrice Holland (11:04):
Yeah, so Title VII is a federal law that deals
with, of course, protecting.
It's a federal law thatprohibits discrimination in
employment based on race, color,national origin.
We've now added in pregnancy,sex, sexual orientation, gender
identity.
And then also there are someother laws USERRA that deals
(11:28):
with military.
There are just other laws thatapply, but Title VII is really
the big law.
It was enacted as part of theCivil Rights Act of 1964.
So employers, they arebasically ensuring that they
have equal employment, equalopportunity in their workplaces,
and so you want to use that asthe baseline.
That is really the law thatgoverns workplace, the work
(11:52):
environment, and that equalopportunity and employment.
Tom Hagy (11:55):
Sounds a lot like DEI to me.
Patrice Holland (11:59):
Not in a way.
Tom Hagy (12:00):
OK, it's just my lay kind of impression.
Patrice Holland (12:03):
Well, yeah, I think it's a good point because
you want to make sure you've gotpeople that you're employing.
They have, they're not going tobe discriminated against, and
it goes from all aspects ofemployment.
So from hiring, firing,compensation, it looks at the
entire workplace environment.
I think DEI has been a loadedterm, for it's been politicized
(12:24):
in so many ways over the years.
I'm not saying that from onepolitical party or the other,
just period it's beenpoliticized.
But I think what has notchanged and should not change is
really what the law is and thatis that we, under Title VII, if
you're an employer, you areobligated under the federal law
to make sure you're notdiscriminating against people
(12:44):
based on their race.
You're wanting to add morediversity in your workplace.
It's not just we want to havequota, because of course that's
unlawful, but diversity.
Increasing diversity can bediversity of thought, it can be
geographic diversity, right?
So if I'm sitting here inRoanoke, virginia and southwest
Virginia, so maybe you want yourperson is further west in the
(13:08):
state.
You may not have a lot ofracial diversity, for example.
Maybe your diversity effortsare going to be somewhat
different from someone sittingon the east side of Virginia or
someone that's sitting inPennsylvania.
You may have some differentobjectives.
So I think diversity again hasbeen a loaded politicized term,
but it's truly just a need tosay.
(13:30):
We want a more well-roundedworkforce, we want to work with
people that have differentbackgrounds, and that's our goal
.
We're not trying to count,we're not having a quota, but we
are looking to enhancediversity of thought and to have
people that are different fromus who can add and enhance our
company, our work environment.
Tom Hagy (13:50):
Yeah, I had a jury consultant on Tara Trask and she
was saying that she was talkingabout diversity in juries and
on trial teams and one of thepoints she made was it's not
just a nice thing to do.
There's value in people withperspectives that come from
different places in the world.
(14:11):
You know what I mean.
Different backgrounds andthings.
Patrice Holland (14:14):
A hundred percent yeah.
Tom Hagy (14:16):
Especially if you're well, in her case you might have
a jury that's going to bediverse, and so your trial team
anyway.
So there are advantages.
But your point aboutpoliticization I don't think
anybody would argue that so manywords are politicized right now
.
Climate change is politicized,or climate whatever.
(14:37):
Everything's everything.
It's just that we're just inthat environment right now.
Period, end of story.
What's the Virginia Values Act?
Patrice Holland (14:46):
So the Virginia Values Act similar to Title VII
.
So the Virginia Values Actsimilar to Title VII, but it's
Virginia specific and in someways it was enacted in 2020.
It's a civil rights act inVirginia that sends protections.
So the civil rights law inVirginia similar somewhat to the
Title VII, but there are someextended protections in Virginia
for LGBTQ plus individuals.
(15:09):
There is we have now enactedwhat's called the Crown Act.
So discrimination for anydiscrimination relating to hair
traits in one's hair, how theyare.
If I came on today when I metyou, I think I had my hair
natural.
Tom Hagy (15:25):
It's still natural today.
Patrice Holland (15:26):
Maybe I come today and my hair is braided and
it's different and there areprotections in Virginia that
deal with certain things such aspregnancy, lactation, all of
those things, and it expandssomewhat some of those federal
laws that are recognizedfederally.
But Virginia has a morespecific and in some ways
(15:46):
broader protections for itscitizens in the Commonwealth and
in some ways broaderprotections for its citizens in
Commonwealth.
Tom Hagy (15:51):
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 awrestler.
And now when I wrestled, wedidn't do this.
It was like in the 1800s when Iwrestled.
Now they wear like a head capor something, or looks like
maybe a swim cap or something.
We had to have ear protection,but anyway, so you could have
(16:11):
hair.
My hair was always too long andthey would always cut it with
tape scissors.
I always looked great, and thatwas Ohio.
They're very strict about thehair, but it seemed to me there
was like a certain type ofhairstyle.
Yeah, it was a certain type ofhairstyle and, yeah, they
wouldn't let him wrestle.
I don't know if it became acourt case or not, but it got a
lot of national attention.
Patrice Holland (16:31):
Yeah, there's a lot of cases that you probably
saw in the media where studentsweren't allowed to go to their
graduation or their senior prombecause of their hair, and it's
usually so specifically it'stied to a minority status, so
someone that has dreads, someonethat is wearing their hair
natural, but typically the caseshave been someone that has
their hair in locks or dreads,someone that is wearing their
hair natural, but typically thecases have been someone that has
(16:52):
their hair in locks or dreads.
Tom Hagy (16:54):
Yeah, okay.
Patrice Holland (16:55):
Yeah.
Tom Hagy (16:56):
I say unless it obstructs views at graduation.
Patrice Holland (17:00):
That could be a hat.
Tom Hagy (17:02):
That's true.
That's true.
My daughter.
She is a white girl but she haddreads, which I think is
controversial in some ways.
But she had dreads and, oh mygosh, she went to school.
I don't mean to, I'm not goingto disparage the school, fine
school, but she was in.
So she's like into Bob Marleyand she thinks pot should be
legalized and she's got theGrateful Dead dancing bears on
(17:25):
her car.
She got a Bob Marley sticker onher car.
She's got a Bob Marley stickeron her car and she's got dreads.
And she went to school inLynchburg, virginia.
I'm like, sweetie, just go tothe police station and turn
yourself in because you standout.
And sure enough, she was.
Anyway, she works with, she'sin Vermont and ended up in
Vermont, which is better, andnow she works with children with
(17:47):
learning disabilities andautism and things like that.
So, anyway, I don't mean sheloves when I talk about her like
that.
Dad, no one wants to hear aboutmy Lynchburg years, but anyhow,
okay.
So, yeah, hair, I didn'trealize.
Yeah, I never thought aboutthat as being part of it, but
you mentioned.
So we're talking about lookingat all of your policies ensuring
(18:07):
that you're compliant withactual laws.
Okay, executive orders are notlaws.
I'm sure that'll be, if itisn't already.
I should know this.
That'll probably end up at theSupreme Court somehow.
I don't know.
I'm just speculating and justas a side note, because we want
to talk, I want to ask you aboutTarget.
(18:28):
Note, because we want to talk.
I want to ask you about Target.
Before I ask about Target, athing that I was fearing was the
influence of these policies oncorporate corporations doing
business, and I was concerned.
The FTC has five commissionersand they're usually balanced.
You can't have more than threecommissioners from one party.
(18:49):
So when President Trump came in, he appointed his commissioner,
replaced Lena Kahn, who wasconsidered liberal under Biden,
but he fired the two Democratic,the two Democrats on the panel.
So now there's only threepeople on the panel and they're
Republicans and the commissioneris very much supportive of the
(19:10):
president.
So I was just concerned.
Okay, they're going to belooking at mergers and
acquisitions and I was justspeculating is that going to
affect the policy, is going toaffect decisions there?
But what I missed was theFederal Communications
Commission.
The head of that came out andsaid openly I think it was maybe
March that if there are bigmergers with media companies
(19:33):
that espouse DEI, that's goingto be a factor, that's going to
be a strike against them in themerger and that's going on right
now in the case of Paramount,which owns CBS, which runs 60
Minutes, which President Trumphas sued.
Right and right now, before theFCC, is this big paramount
(19:54):
merger with another company andthe guy came right out and said
that suit will be a factor andtheir DEI policies will be a
factor, like, okay, so it'sgoing to affect employers in
many different ways and peopledoing business.
Did I sound biased at all inthat?
I'm just aren't I just layingout facts?
Maybe?
Patrice Holland (20:14):
You may be leaning a little bit.
Tom Hagy (20:16):
I'm going to try not to but that merger.
I don't know anything about themerger.
It could be a bad merger.
Market consolidation is a badthing sometimes.
But I wanted to ask you aboutTarget.
What's going on with Target?
It's a fine store.
It's very cheerful when I go inthere.
They have a good selection.
What's happening with them?
Patrice Holland (20:32):
I think Target and I wanted to be careful
because I know that Walmartannounced and I know you want to
talk about Target, but Walmartannounced their rollback of
their DEI initiatives back in Ibelieve it was November.
As soon as President Trump waselected, they announced that
they were going to be rollingback their DEI initiatives as
early as November.
What's really unusual aboutTarget is everybody's figuring
(20:54):
out why is Target being thetarget?
No pun intended, target didn'tannounce their rollback until
January 24th.
So, as I mentioned before Trump, president Trump announced or
signed the executive order thefirst executive order relating
to DEI back on January 20th.
So four days later, target says, hey, we're going to roll back.
(21:15):
And the important part here isthat, again, while executive
orders are not law, they do havethe force of law.
So I think Target and Target'snot a client of mine so I don't
know why they made certaindecisions, but they decided to
roll back their programs and Ithink why most people focus on
(21:38):
Target more than a Walmart, forexample, because Target was
really well known to promoteBlack businesses and small
business owners, minoritybusiness owners, and so the
community as a whole kind ofview Target as somewhat of an
ally and a little bit more, butI'm not speaking on behalf of
(21:59):
what they did or did not viewWalmart as, but I think that's
really where that started.
And Pastor Jamal Bryant inAtlanta, georgia, after that
announcement, initiated this40-day boycott in conjunction
with the Lent, lenten season.
Right, you do 40 days.
So that's where the 40-dayboycott came from but
immediately before that.
(22:20):
People started boycottingTarget immediately and they
started seeing a reduction intheir foot traffic, and then
they started seeing a hugereduction in their money that
they were receiving.
So they had a lot of loss.
Their stockholders apparentlywere very upset about it because
there was, of course, adecrease in their money they
(22:44):
lost about.
I think the record loss wasaround $12 billion as a result
of this boycott, and so Targetreally had a target on its back
because of their announcementAgain because of the programs
that they were rolling backseemed to be more, seemed to
affect the minority-basedcommunities a little bit more
(23:04):
and it hit harder for them.
Reverend Al Sharpton isannouncing that he met with the
CEO of Target recently and theremay be a newer boycott, but
there doesn't seem to be achange right now, even after the
40, we're past the 40-dayperiod of the boycott that
started Target.
Really going back to what I say, we advise our clients that
(23:26):
they want to look at yourpolicies, your outward-facing
messages, your inward facingmessages, assess your risk.
They took a chance of rollingit back and it ended up not
being a really great decisionafter all, but it's what targets
learning is not really a greatdecision.
They're now trying to come backfrom somewhat of the rollback
(23:47):
and do some different things.
The executive order didn'treally mandate Target to do it
because it touched on theprivate sector, but the private
sector was really nervous abouthaving an investigation.
A lot of private sectoremployees like Target are just
nervous about having a robustpolicy like it had pre-executive
(24:08):
order and Target took a riskand that risk unfortunately
ended up being decreased in foottraffic for their company and
they're still losing tons ofmoney.
The flip side real quick ofthat is the companies like Apple
, trader Joe's, costco theydoubled down hard Ben and
Jerry's they doubled down andsaid we are confirming, we are
(24:30):
confirming our commitment to DEI.
Those companies did very wellsince that confirmation.
People that didn't go to Targetwent to Costco if they had a
Costco in their community.
Costco is now opening up moreCostcos and Target is really
feeling the effects of it.
It's really a hard balance foremployers to make the decision
(24:52):
as to how far, if at all, youroll back, or do you just stand
strong and take a chance?
That's a company by companyassessment and there's really no
right or wrong answer.
You just have to be willing totake the consequences of the
decision for your company.
Tom Hagy (25:11):
Yeah, no, that's a good way of putting it.
Yeah, it has to be company bycompany.
It does seem like the peoplethat are standing strong at the
moment, including with the biglaw firms WilmerHale and et
cetera and Jenner they seem tobe winning in court.
The companies that are standingtheir ground on it do seem to
(25:32):
be doing better.
I guess when we mentionedTarget, because that's the
closest thing to me, my wife iswilling to drive further to
Costco, and when she does go toCostco we have so much stuff
suddenly in the house it's justlike how much rice do you think
we're going to eat?
But anyway, it's a great storeand she's always coming back to
me, back with shirts and thingsfor me.
I don't know why.
But the, but I just figuredalso target.
(25:53):
You know, rolling back a policy, it doesn't look good,
certainly, but I kept going to.
What have they actually done?
Have they actuallydiscriminated or whatever?
That company has a policy ornot a policy, but that's just me
.
What's their conduct?
Patrice Holland (26:12):
Yeah, I think that and that's again two
separate analyses right, becausewhether or not they're
discriminating against folksthat come to their store or
their employers excuse me, theiremployees 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 thespotlight is and that's not
really the core of the boycott.
The core portion of the boycottis you are at least they're
(26:34):
claiming that there's divestmentdivestment from the community.
That is why the community nowis divesting from Target.
My understanding is there havebeen some tips that are being
bargained and the CEO is nowheavily involved, both with
speaking with Pastor JamalBryant in Atlanta, georgia, and,
as I mentioned, sharpton aswell.
That's been reported in thenews that there have been
(26:56):
conversations, so there arethings that they are willing now
to negotiate, to get back intothe community to show commitment
.
But does it look the same?
I don't know.
And what they really rolledback was that it was called
their REACH program and again itwas just focusing on increasing
and giving an opportunity tominority, to minority small
(27:17):
businesses, and that includedwomen as well, not just black
women, but white women, allwomen who were not really
provided those opportunities,maybe in other big box stores.
Tom Hagy (27:28):
Yeah, yeah, that also reminds me too, because there's
certainly there are governmentlending programs for women owned
, women of color owned, etcetera.
So you wonder if those aregoing to be impacted.
And if the Civil Rights Act andTitle VII are in place, you
wonder if those will be attemptsto undermine or tone those down
.
I hope not, but yeah, there'sjust so much going on with it
(27:50):
right now.
But I think, too, companies,the boycotts do seem to be
working and the court challengesseem to be working.
Tesla has learned that the hardway.
I mean, talk about a change offortune.
Tesla cars were just likeliberals with money, what do
they call them?
Limousine liberals I alwayslove that expression but
(28:10):
liberals who could afford them,who want to believe in climate
change, they're all snappingthem up and look how, my gosh,
how quickly that changed.
So your brand is so obviouslyimportant.
But I do feel for companieswhen I don't know, like Facebook
, when they say we're not goingto have fact-checking or
whatever, when they say thesethings we can hate or we can
(28:32):
disparage Zuckerberg, which Ioften do with my friends, but he
doesn't hear me or care.
But it's like they also.
Long time ago somebody made thestatement CEOs report to
shareholders.
Their goals aren't for the goodof society or the country the
(28:54):
good of society or the country.
Their goals are to supportshare prices and shareholders,
which is a reality that I thinkthat sometimes a good company
can straddle and do both.
But if they make thesedecisions, sometimes they've got
shareholders to answer to.
But anyway, as I mentionedbefore we started, sometimes I
digress.
As I mentioned before westarted, sometimes I digress.
Why don't we, if we could?
So I think you've covered a lotof ground, so maybe you could
(29:18):
give me just I don't know 60seconds on a wrap up.
What should an employer doright now?
They want to stay compliantwith the actual laws.
They don't want to get in thecrosshairs of the president for
whatever reason.
What should employers do now inlight of this shift in DEI?
Patrice Holland (29:38):
So I want to start just saying I know we've
been talking a lot about privatesector employers we do
represent federal contractors aswell and that's really key.
And so the executive order andwe've really been talking
generally about it, but it'scalled ending illegal
discriminationegalDiscrimination and Restoring
Merit-Based Opportunity.
I think you started talking alittle bit about that, but
(29:58):
really it applies to federalcontractors, recipients of the
federal funding, and so thatreally those employers have a
different viewpoint and they'regoing to be looking at whether
or not they have to terminateany illegal DEI or DEIA, all of
those things.
If they're receiving federalfunds, they've got a little bit
of a different standard or a lotdifferent standard than your
(30:21):
private sector employers, Iwould say, and that's why you're
starting to see pushback.
You've seen this new lawsuitfrom Harvard.
You've seen all of these folkswho are receiving federal funds,
the federal contractors.
They're now having to certifythat they are not violating the
law.
They're not having any type ofDEI, all of those things, and
(30:41):
they're having to do acertification of that.
So those are some ramificationsthat they could have under
what's called the False ClaimsAct or False Claims Reporting
Act.
So that's a separate thing.
I know we didn't really diveinto that.
Tom Hagy (30:53):
No, I'm glad you brought it back.
Patrice Holland (30:54):
No, I just wanted to touch on that just for
a second.
They do have differentconsequences.
So our advice to federalcontractors and to any employers
or anyone receiving federalfunds those are a lot different
than our private sector folks,but what I'll leave you with.
I know you said I got 60seconds.
Tom Hagy (31:11):
No, you don't have 60 seconds.
No, you don't have 60 secondsbecause I wanted to talk about
this.
Go ahead.
Patrice Holland (31:17):
I just want to leave with the advice really for
all employers.
But specifically we do have alot more private sector
employers, but we definitelydeal with our federal
contractors as well.
Keep those things in mind.
You want to make sure that youare your federal contractor.
You've got your I's dotted, t'scrossed.
Their risk analysis is a lotdifferent than our private
(31:40):
sector employers.
But for my checklist, really,if someone came to me and said,
hey, we see these new executiveorders, what should we do?
Let's walk through a checklist.
I would first say are you afederal contractor or no?
Do you receive any federalfunds or no?
Those are the first questions Iask because, again, the
analysis is a little differentfor those folks.
(32:00):
The first thing you want to dois look at what you have.
Do you have a position in yourcompany that's a DEI employee,
like the person is like the headof DEI, for example, and that's
their title?
If that's the case, some peopleare, some employers are
deciding to rename that positionor maybe even reorganize what
that person is responsible fordoing.
(32:20):
If you have, again, a websitelooking at that information,
that's your outward facingcommunication.
So if, under the executiveorder, you're going to be
investigated, perhaps because ofyour policies.
That's going to be.
The first place that they'regoing to look is at your website
.
So you want to make sure you'relooking at that website.
Make sure that there's nothingon your website that's unlawful,
violating any federal laws.
(32:42):
Again, if you're a Virginiaemployer, you make sure you look
at your state laws.
If you're in Arizona, get thosestate laws.
California, all of those places.
The other thing you want to dois look internally, look at your
own.
Do you have any DEI initiativesor programs?
Look at those.
Do they have?
Could they have a disparateimpact?
(33:07):
Could they negatively ordisproportionately affect or
discriminate against oneparticular group?
I would look at that.
I would look at all of that.
Make sure you assess your risks.
So if you decide, hey, we wantto just completely cut out all
of our programs, how does thataffect your customers?
If you're an employer, alsothink about it from a law firm
too.
We have a lot of you mentionedsome of the law firms that are
(33:28):
fighting back.
Some of them have beenspecifically named in executive
orders.
Right, skadden decided they'regoing to give some pro bono
hours to the Trumpadministration.
Some of these other firms aredoing different things, but
looking at how it may affectyour clients, you know, on the
clients that you look at, thatyou're dealing with.
These are all assessments,unfortunately, and fortunately,
(33:49):
I guess, for depending on yourviewpoint.
But you have to really make.
Look at your employee handbook,make sure you are complying
with the applicable laws TitleVII and you have an EEO
statement, making sure you'restill lawful, because at the end
of the day, this could end upin court, no matter where you go
, and the courts do.
Look at executive orders to saydid you have the authority to
(34:10):
make that, mr President?
Make that executive order andis this constitutional?
And so you want to make sure,if you're on the other side of
that, that you have your housein order and that your policies
are lawful and sound.
And at the end of the day, it'sa business decision.
Target made a business decision,so did Costco, and whether you
are gambling and whether thatgamble pays off or not is really
(34:34):
the decision you make.
But I think, at the end of theday, 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 makesure everybody's buying into
what you're doing.
I think it's really key that ifyou are going to move forward
and you're going to stand yourground, everybody's buying in on
(34:56):
that decision.
Or if you decide you're goingto scale back, you too have
buy-in for that, because at theend of the day, that's really
going to be important.
And then the last thing I'll sayand I think a lot of employers
forget this sometimes is youremployees.
How does this affect?
How does your rollback, ifyou're going to roll back, how
does it affect your psychology,the mental awareness, your
(35:19):
employees?
So, if you have LGBT employeesand you have a large number of
those employees, if you'regetting rid of certain bathrooms
or you're getting rid ofcertain policies that relate to
that, how does that affect youremployees and what is going to
be your internal blowback fromthose employees, if at all?
Tom Hagy (35:36):
Yeah, good, thank you for wrapping that up and thank
you for steering me back to thefederal contractors.
I forgot to bring that up and Iguess that's going to be an
interesting thing as people areapplying for federal contracts.
Yeah, yeah, gosh, is that goingto be a question on the
questionnaire?
Patrice Holland (35:51):
I'm going to be scrutinized heavily.
Tom Hagy (35:54):
You are going to be scrutinized.
Yes, batiste Holland, thank youvery much for speaking with me
today.
This is obviously a hot topic,interesting one.
Patrice Holland (36:02):
Yeah, thanks for having me, tom, I really
enjoyed it.
Tom Hagy (36:04):
I won't ask you to sing on the way off, but you
should know that in the intromusic I am playing the bongos.
Patrice Holland (36:12):
Sounds great, thank you.
Tom Hagy (36:31):
The Emerging Litigation Podcast is a
production of Critical LegalContent which owns the awesome
brand HB Litigation.
Critical Legal Content is acompany I founded in 2012.
That was a long time ago.
What we do is simple we createcontent that's critical on legal
topics for law firms and legalservice providers.
I believe we even have a catchytagline, which is your legal
(36:53):
content marketing department.
That kind of content can beblogs, papers, they can be
podcasts, webinars and we have agood time doing it and S4HB
litigation well, that's the nameunder which we publish
interesting at least interestingto me legal news items,
webinars, articles, guestarticles all on emerging
litigation topics.
(37:15):
That's what we do.
Once again, I'm Tom Hagee, withCritical Legal Content and HB
Litigation.
If you like what you hear andyou want to participate, give me
a shout.
My contact information's in theshow notes.
Thanks for listening.
Thank you.
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