One of the executive orders included in the flurry of those signed by President Trump on January 21, 2025, took direct aim at a 60-year-old executive order that had formed the foundation for certain affirmative action obligations for federal contractors. More particularly, through his executive order entitled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” President Trump revoked Executive Order 11246, which was signed by President Lyndon B. Johnson in 1965. In support of this action, President Trump cited to what he called “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility (DEIA) that can violate the civil-rights laws’.’”
Which affirmative action obligations no longer apply?
Executive Order 11246 was one of three key legal authorities enforced by the Office of Federal Contract Compliance Programs (OFCCP) to promote diversity and require affirmative action by federal contractors. Most notably, Executive Order 11246 required federal agencies to include certain affirmative action obligations with respect to women and minorities in their agreements with federal contractors (which obligations would vary depending on the dollar threshold of the federal contracts). More generally, Executive Order 11246 further prohibited federal contractors from discriminating based on race, color, religion, sex, sexual orientation, gender identity, or national origin. President Trump’s executive order expressly rescinded Executive Order 11246, and it also instructed the OFCCP to immediately cease:
- Promoting “diversity”;
- Holding federal contractors and subcontractors responsible for taking “affirmative action”; and
- 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’s executive order provided a 90-day period during which federal contractors “may continue to comply with the regulatory scheme in effect.”
While Trump’s executive order makes clear that federal agencies should no longer include affirmative action obligations with respect to women and minorities in their agreements with federal contractors, it does not directly address one key question: What happens to federal contractors who have contractual affirmative action obligations already included in their current contracts with federal agencies? At this point, only time will tell, as we will need to wait to see how the Trump administration and the OFCCP interpret and implement Trump’s executive order.
Which affirmative action obligations remain?
Importantly, President Trump’s executive order does not purport to do away with all affirmative action obligations for federal contractors. Specifically, Section 503 of the Rehabilitation Act of 1973, which bars discrimination against workers with disabilities, and the Vietnam Era Veterans’ Readjustment Assistance Act, which bars discrimination against veterans, both are products of statute—rather than prior executive order. Those statutes both remain in effect.
Next steps for federal contractors
With this massive change, federal contractors who are subject to current OFCCP compliance reviews or who were listed on the OFCCP’s recently published Corporate Scheduling Announcement List should seek advice from their legal counsel concerning how to best proceed. Federal contractors should also seek advice from their legal counsel in connection with preparation of any affirmative action plans in the coming year.
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