Amidst a flurry of employment-related executive orders issued during the first few days of the new administration, on January 21, 2025, President Trump signed an executive order titled Ending Illegal Discrimination and Restoring Merit-Based Opportunity (“the Executive Order”).
The Executive Order describes diversity, equity, inclusion, and accessibility as “dangerous, demeaning, and immoral” and in violation of federal civil rights legislation. The Executive Order goes on to undo decades of federal government practice and authority, directing all executive departments and federal agencies to stop enforcing affirmative action program requirements and instead focus upon enforcing existing civil rights law to prevent employers from implementing such programs.
Revocation of Existing Executive Orders
The Executive Order overturned four longstanding executive orders and a presidential memorandum:
- Executive Order 11246: Issued September 24, 1965, Executive Order 11246 prohibited federal contractors from discriminating against employees because of race, color, religion, sex, or national origin and required federal contractors to take affirmative action to ensure that applicants and employees are treated without regard to these characteristics. Executive Order 11246 further required federal contractors with at least 50 employees and who met certain contract thresholds to develop and maintain written Affirmative Action Programs and evaluate their compensation practices for pay disparities by gender and race, known as pay equity audits. Employers have 90 days from January 21, 2025, to cease complying with Executive Order 11246.
- Executive Order 13672: Issued on July 21, 2014, Executive Order 13672 amended Executive Order 11246 to prohibit discrimination against employees because of their sexual orientation or gender identity.
- Executive Order 12898: Issued on February 11, 1994, Executive Order 12898 focused federal attention on the environmental and health impacts of federal actions on minority and low-income populations.
- Executive Order 13583: Issued on August 18, 2011, Executive Order 13583 imposed equal opportunity, diversity, and inclusions requirements on the federal government as an employer and required the Director of the Office of Personnel Management (OPM) and Deputy Director for Management of the Office of Management and Budget (OMB) to establish a government-wide initiate to promote diversity and inclusion in the federal workforce by developing a Diversity and Inclusion Strategic Plan to improve federal agency efforts to recruit, hire, promote, retain, develop, and train a diverse and inclusive workforce consistent with merit system principles.
- The Presidential Memorandum of October 5, 2016: This memorandum provides guidance to national security personnel to promote talent and diversity, including the collection and dissemination of demographic data of the national security workforce, implementing personnel policies to ensure that all national security employees have access to professional development opportunities and rewarding diversity and inclusion efforts, including through training on unconscious bias for the national security workforce.
Changes to the Office of Federal Contract Compliance Programs
The Office of Federal Contract Compliance Programs (OFCCP) is an agency within the federal Department of Labor that oversees federal contractors and subcontractors and enforces compliance with legal requirements related to affirmative action, anti-discrimination, and retaliation. The Executive Order has reversed the OFCCP’s mission and prohibits it from promoting diversity, enforcing affirmative action requirements, or allowing federal contractors and subcontractors to “engage in workforce balancing” on the basis of an employee’s race, color, sex, sexual orientation,[1] religion, or national origin. In short, the OFCCP is not only prohibited from requiring affirmative action by federal contractors, but it must also actively prevent federal contractors from implementing affirmative action and diversity and equity initiatives as a means to engage in discrimination in violation of the non-discrimination laws.
New Requirements for Federal Contractors
The Executive Order further imposes additional requirements on federal contractors. Federal contractors and subcontractors are prohibited from considering race, color, sex, sexual orientation, religion, or national origin in their employment, procurement, and contracting practices. In entering into federal contracts, every contract or grant must include terms agreeing that compliance with applicable federal anti-discrimination law is material to the government’s decision to pay under the contract and certifying that the federal contractor does not operate any programs promoting diversity, equity, and inclusion that violate applicable federal anti-discrimination laws. The Executive Order directs the Director of the OMB and the Attorney General to revise government processes to comply with these new requirements and excise references to diversity, equity, and inclusion principles from federal grants, contracts, programs, and mandates.
Provisions Applicable to Non-Federal-Contractor Private Employers
The Executive Order does not impose any specific requirements on private employers who are not federal contractors or subcontractors. However, it does contain provisions indicating how the Trump Administration plans to make efforts to prevent private employers from promoting diversity, equity, and inclusion in their workplaces. Specifically, the Executive Order directs the Attorney General to submit a recommendation for measures to encourage private employers to end diversity, equity, and inclusion practices and formulate civil-rights policy to this end within 120 days of the Executive Order. The Executive Order asks the Attorney General to identify large companies and educational institutions to target for civil compliance investigations and federal lawsuits to advance these stated goals.
Exceptions to the Executive Order
The Executive Order makes several notable exceptions to its prohibition on diversity, equity, and inclusion. For example, the Executive Order does not apply to federal or private sector employment preferences to veterans in the U.S. armed forces or to blind employees protected by the Randolph-Sheppard Act. Additionally, the Executive Order does not prevent state and local governments, federal contractors, federally funded educational agencies, or institutions of higher education from engaging in constitutionally protected free speech. And lastly, the Executive Order does not prohibit teachers at federally funded institutions of higher education from advocating for or discussing the employment and contracting practices prohibited by the Executive Order.
Employment Laws Still in Effect
Notwithstanding the prohibitions and requirements regarding affirmative action imposed by the Executive Order, private employers — whether federal contractors or not — are still required to follow the various state and federal anti-discrimination laws that protect employees on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, disability, and more. And those private employers who are federal contractors or subcontractors retain other contracting obligations they are required to follow under federal law, such as the Davis Bacon and Related Acts, the McNamara O’Hara Service Contract Act, and the National Labor Relations Act, among others. Among the ever-changing landscape of employment laws related to anti-discrimination and affirmative action, employers must be cognizant of these developments as they arise. We are in the midst of sea changes in the federal government’s approach to a variety of employment-related matters, and we will continue to keep our readers posted.
[1] Note that the Executive Order uses the phrase “sexual preference” throughout, but federal law and regulations protect employees on the basis of sexual orientation, not sexual preference, and do not generally use the phrase “sexual preference.”