On January 21, 2025, President Trump signed the “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” Executive Order (the “EO”). Among other things, this EO rescinds Executive Order 11246.
Executive Order 11246
Under Executive Order 11246, covered federal contractors and subcontractors were required to affirmatively recruit women and minorities for employment and ensure employment practices did not discriminate on the basis of race, color, religion, sex, and national origin. Executive Order 11246 further mandated that contractors develop annual affirmative action plans measuring their compliance with these objectives.
The Rescission of Executive Order 11246
The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has been responsible for enforcing Executive Order 11246 and its implementing regulations. Trump’s new EO directs the OFCCP to immediately stop:
- Promoting “diversity.”
- Holding Federal contractors and subcontractors responsible for taking “affirmative action.”
- Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
The EO further provides, however, that contractors “may continue to comply with the regulatory scheme” for a period of 90 days, or until April 21, 2025.
Moving forward under the EO, executive agencies must require federal contractors “to agree that . . . compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions” and “to certify that [the contractor] does not operate any program promoting DEI that violates any applicable Federal anti-discrimination laws” going forward.
The Bottom Line
The full effect of the EO is yet to be determined as we wait for additional information and guidance from the Trump administration. For now, we know that affirmative action and related certification obligations as to gender and race/ethnicity no longer exist.
In contrast, because covered federal contractors/subcontractors’ affirmative action-related obligations with respect to protected veterans and individuals with a disability are based on federal Acts (i.e., the Vietnam Era Veterans’ Readjustment Act of 1974 and Section 503 of the Rehabilitation Act of 1973), the requirements imposed by those Acts and their implementing regulations presumably remain. Additionally, employers must still comply with and file EEO-1, VETS-4212, and state reporting obligations to date.
Though the EO may be challenged, and a lot of questions remain at this point (including the impact of the EO on state contactors’ ability to comply with state affirmative action-related requirements), federal contractors and subcontractors (and other employers) should review their DEI policies and practices for compliance now with existing law and consult their Felhaber attorneys for guidance.