The White House indicated in its press release that "the full participation of all people— including women and girls—across all aspects of our society is essential to the economic well-being, health and security of our nation and of the world. This is a matter of human rights, justice and fairness. It is also critically important to reducing poverty and promoting economic growth, increasing access to education, improving health outcomes, advancing political stability, and fostering democracy."

Suggesting that Biden is seeking swift, tangible action to address these systemic issues, the executive order sets a deadline of 200 days from the date of the executive order, or Sept. 24, 2021, for the council to develop and submit to the president legislative and policy recommendations to advance gender equity and equality in the United States and around the world.

Council's potential immediate impact

A similar executive order was signed during President Barack Obama's first term in office, creating a White House Council on Women and Girls. Like Biden's executive order, Obama's executive order sought to establish a coordinated federal response to issues that particularly impact the lives of women and girls, such as assisting women-owned businesses and increasing the participation of women in the science, engineering and technology professions.

However, Biden's executive order goes one step further as it contains provisions for following through with the recommendations proposed by the council. First, the heads of each agency will take steps to suspend agency directives, orders, regulations, policies or guidance inconsistent with the recommendations from the council. Second, the council is required to prepare an annual report on progress made in implementing the recommendations, which will be available to the public. Thus, the recommendations proposed by his council may have an immediate effect in the form of rolling back existing inconsistent regulations while also ensuring that the recommendations and their progress are made public.

Given the executive order's broad directive, there is host of possible recommendations that could be produced by the council. Of particular note is the executive order's focus on the effects of COVID-19 on women in the workforce. Recent reports estimate that nearly 3 million women have dropped out of the labor force since the COVID-19 pandemic began. One likely culprit is the closures of daycare facilities and schools as a result of government shutdowns caused by the pandemic. These shutdowns disproportionately affected women and mothers as they were more likely to care for the children left at home.

The Families First Coronavirus Response Act (FFCRA) sought to alleviate some of that burden by expanding available leave under the FMLA to include the need to care for a child as a qualifying reason for leave. The FFCRA also introduced paid leave for the first time at the federal level. Potentially, a more permanent version of the FFCRA or a similar amendment to the FMLA to provide for leave to care for a child or some other form of paid leave may be recommended by the council in order to address gender inequality in the workforce.

Addressing nondisclosure agreements

One other potential recommendation from the council could be reformation of the use of nondisclosure agreements with regard to claims of sexual harassment and discrimination in the workplace. An ever-increasing number of states have sought to limit the use of nondisclosure agreements when parties agree to settle claims of sexual harassment or discrimination. Some states, like New York, prohibit employers from preventing the disclosure of the underlying facts and circumstances to a sexual harassment claim or action unless the condition of confidentiality is the employee's preference.

While Florida continues to permit confidentiality agreements, other states, such as New Jersey, outright prohibit the enforceability of nondisclosure provisions against an employee who is a party to the settlement if the provision conceals the details relating to claims of discrimination, retaliation, or harassment. Potentially, the council could submit recommendations on regulations invalidating agreements settling such claims under federal law if a non-disclosure provision is included.

While employers should be aware that these recommendations are just that, recommendations, they could quickly result in the rescission of existing agency guidance or regulations that are deemed to be inconsistent with the recommendations. Moreover, these recommendations could very well lead to longer lasting change in the form of new regulations interpreting existing federal employment laws, such as the Title VII of the Civil Rights Act of 1964 or the Family and Medical Leave Act, or to new legislation being advanced by the Biden administration.

Shannon Kelly is a shareholder and Steven Reardon is an associate with the Miami-based law firm Allen Norton & Blue, a statewide firm devoted exclusively to the practice of labor and employment law. Contact them at [email protected] and [email protected].

Read more: 

• In an abrupt shift, 1 in 4 women are considering leaving the workforce
• Report highlights disproportionate impact of pandemic on women
• Retaining employees who are mothers: What employers – and parents – must consider