President Donald Trump has rescinded the 60-year-old Executive Order 11246 (EO 11246), which required federal contractors to practice affirmative action based on race and gender. The president also issued a separate executive order this week to end diversity, equity, and inclusion (DE&I) programs and preferencing in the federal government.
In 1965, President Lyndon Johnson issued EO 11246, which also required nondiscrimination by federal contractors.
While the affirmative action obligation for EO 11246 will end due to its rescission by the EO Trump issued Jan. 21, contractors’ affirmative action obligations will continue for people with disabilities and veterans, due to the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act of 1973, explained Zev Grumet-Morris, an attorney with Duane Morris in Chicago. Nondiscrimination obligations based on race, gender, and other protected categories will continue as well.
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Trump Rescinds Affirmative Action by Contractors Based on Race, Gender
SHRM | Jan 2025
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In addition, companies that wish to do business with the federal government should take immediate steps to review their affirmative action and DEI programs to ensure compliance with the new executive order, and when deciding on policies and hiring practices, companies should follow directive to "not consider race, color, sex, sexual preference, religion, or national origin" in the executive order.
If a contractor was previously identified on the corporate scheduling announcement list as being subject to an annual compliance review, that contractor should ask for guidance from OFCCP to verify whether such review will still take place. At the moment, it appears that all such reviews are halted, but contractors should confirm this with OFCCP.
If contractors or grant recipients have personnel filling roles such as diversity officer, careful attention should be given to the authorities and responsibilities of these positions. Contractors and grant recipients should review their internal policies and procedures to identify potential violations of the new directives.
A Look At Order Ending Federal Contractor Affirmative Action
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There is still much uncertainty as to how the Order will intersect with or overlap with other laws like Title VII, or with state law regarding DEI and employment protections. At the moment, employers should be in consultation with employment attorneys to stay updated on the latest developments, especially as we see how and what steps will be taken to enforce the Order. In the meantime, it is advisable for employers, whether federal contactors or not, to take time and review any DEI programs or internal practices that otherwise consider criteria regarding diversity in hiring or promotion practices, perhaps taking short term steps like ensuring non-preferential treatment and making previously mandatory programs optional while the Order and its effects become clearer as time goes on.
What Employers Need to Know About Recent Changes to Affirmative Action Policies in the Workplace
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President Trump’s Order directs the Office of Federal Contract Compliance Programs (OFCCP) to immediately cease promoting diversity, or requiring affirmative action from federal contractors and subcontractors. It also explicitly prohibits workforce balancing based on race, color, sex, “sexual preference,” religion, or national origin.
While the Order dramatically curtails OFCCP’s role in promoting diversity and enforcing affirmative action requirements under EO 11246, the Agency appears to retain its statutory authority to enforce federal contractors’ Section 503 and VEVRAA obligations. The Order explicitly states that it does not apply to “lawful Federal or private-sector employment and contracting preferences for veterans of the U.S. armed forces or persons protected by the Randolph-Sheppard Act.”
Management Alert: Trump Executive Order Eliminates Federal Contractor Affirmative Action Requirements and Creates New DEI Enforcement Framework
Seyfarth | Jan 2025
The revocation of Executive Order 11246 impacts pending and new OFCCP audits — as the agency’s audit jurisdiction is predicated on Executive Order 11246 and its implementing regulations. OFCCP audit requests focus on an employer’s “current” affirmative action plans, and the new executive order provides that contractors “may continue to comply with the regulatory scheme” for now (indicating that compliance is discretionary). Further, the new executive order directs OFCCP to “immediately cease” certain activities related to OFCCP’s audit practices and the agency’s focus on statistical impact.
New Executive Order Revokes Executive Order 11246 and Targets Employer DEI Efforts
McGuire Woods | Jan 2025
The Order provides contractors and subcontractors 90 days to eliminate their affirmative action programs to the extent they are inconsistent with the Order's requirements. Starting April 21, 2025, contractors "shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation's civil rights laws." Furthermore, contractors, subcontractors, and grant recipients are prohibited from maintaining any DEI programs.
President Trump Ends Affirmative Action Requirements for Government Contractors
Holland & Knight | Jan 2025
Require Contractor Acknowledgement of Materiality. The Trump EO also requires federal agencies to include in every contract or grant award a clause requiring the contractor or grant recipient to (1) agree that its compliance with federal anti-discrimination laws is material to the government’s payment decisions for purposes of the civil False Claims Act, and (2) certify that it does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.
President Trump Signs Executive Order Eliminating Affirmative Action Requirements for Federal Contractors
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