Equal Employment Opportunity Revoked – Now What?
President Trump’s Jan. 21, 2025, executive order directs all executive departments and agencies to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders and requirements” and combat “private-sector DEI preferences, mandates, policies, programs and activities.” It does not provide for an enforcement mechanism as it pertains to private employers.
In addition to revoking Executive Order 11246 (Equal Employment Opportunity), Trump’s Order specifically directs the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) to immediately cease:
- 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
President Trump also issued a Fact Sheet emphasizing his commitment to terminating Diversity, Equity and Inclusion (DEI) efforts in the federal government and by government contractors. It further directed federal agencies to act against perceived DEI efforts by private entities.
Moving Forward
The OFCCP can still enforce affirmative action obligations stemming from the Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act of 1973, which prohibit discriminating in employment and require federal contractors to engage in affirmative action to recruit, hire, promote and retain protected veterans and individuals with disabilities. Federal contractors are also still required to adhere to Title VII of the 1964 Civil Rights Act, the Equal Pay Act, the Pregnancy Discrimination Act and the Americans with Disabilities Act, among other federal employment statutes. Accordingly, employers should continue to ensure unbiased employment decisions.
Moreover, in light of President Trump’s executive order, federal contractors will need to consider whether to maintain their affirmative action programs, and how to maintain commitments to diversity while still complying with the current order.
What was Executive Order 11246?
On Sept. 24, 1965, President Lyndon B. Johnson issued Executive Order 11246 “to prohibit discrimination in employment because of race, creed, color or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency.” Executive Order 11246 also provided the authority requiring the OFCCP to root out race, gender and sex discrimination by federal contractors and enforce federal contractors’ and subcontractors’ affirmative action obligations.
The term affirmative action first appeared in John F. Kennedy’s Executive Order 10925, which directed federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”
We will continue to monitor this and other related employment and labor law developments. For questions regarding how this will affect your business, please contact Lisa M. Scidurlo, Kenneth D. Kleinman, Michael G. Tierce or the Stevens & Lee attorney with whom you regularly work.