It has been approximately one week since President Donald Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “EO”). The EO’s stated purpose is to ensure federal civil-rights laws are enforced to the benefit of all Americans and to end illegal diversity, equity, inclusion and accessibility (DEI). To reach this stated purpose, the EO declares race and sex-based preferences illegal and orders all federal agencies and federal contractors to terminate any such programs or requirements.
The EO revokes numerous prior executive orders and actions, now deemed illegal, including many related to DEI initiatives in the federal government, such as EO 13583 (Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce) and Presidential Memorandum of October 5, 2016 (Promoting Diversity and Inclusion in the National Security Workforce), among others.
The EO also impacts certain affirmative action requirements for any entity, including private sector employers, that qualifies as a federal contractor. Specifically, the EO revokes EO 11246 issued by Former President Lyndon B. Johnson in 1965 which established affirmative action program requirements for federal contractors. The now-revoked EO 11246 also established the requirement for federal contractors to create annual affirmative action plans (AAPs) for women and minorities.
The EO also revoked EO 13672 issued by Former President Barack Obama which prohibited discrimination based on sexual orientation and gender identity. The Equal Employment Opportunity Commissions (EEOC) has since removed various on-line resources previously published regarding protections for LGBTQ workers.
The EO ordered that federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025 for 90 days or until April 21, 2025. After this date, federal contractors are prohibited from engaging in any of these prohibited practices.
The Order also commands federal agencies to grant contract awards based on a federal contractor’s (1) agreement that its compliance with all federal anti-discrimination laws as being material to the government’s payments and (2) certification that it does not operate any programs promoting “illegal DEI.”
The EO also cut the enforcement authority of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), and ordered the OFCCP to cease all enforcement efforts. Specifically, the Order required 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.
Days after the EO, Acting Secretary of Labor Vince Micone ordered all DOL employees, including, the OFCCP, administrative law judges (ALJs) and review board members to cease any and all investigations, conciliation agreements, cases and any enforcement activity under the rescinded Executive Order 11246 and corresponding regulations. According to Acting Secretary of Labor, “the department no longer has any authority under the rescinded Executive Order 11246 or its regulations.” In sum, the OFCCP cannot pursue any enforcement of any affirmative action requirements for women or minorities – since all such requirements no longer exist. To this end, the Acting Secretary of Labor also ordered OFCCP officials to notify all federal contractors and subcontractors subject to open reviews or cases related to EO 11246 affirmative action obligations for women and minorities by January 31, 2025 that their reviews or cases are closed.
It is vital to note that the EO does not impact the statutory requirements provided for individuals with disabilities by Section 503 of the Rehabilitation Act, 29 U.S.C. 793, and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212. Both of these statutes are enforced by OFCCP and remain in effect. However, the Acting Secretary of Labor’s order also mandated that by January 31, 2025, the OFCCP must notify federal contractors and subcontractors subject to open reviews or cases related to Section 503 (disability) or VEVRAA (veterans) matters that their cases are being held in abeyance “pending further guidance.”
What Should You Do Now??
If your business is a federal contractor, what does this mean and what should your business do? At a minimum, any employer that is a federal contractor must take immediate action to comply with the EO and should consult with their legal counsel. For instance,
- Federal Contractors, subject to EO 11246 requirements to create an AAP for women and minorities, should stop this practice along with ending any women and minorities-related affirmative action practices, policies or initiatives by April 21, 2025. Important: Section 503 (disability) or VEVRAA (veterans) affirmative action requirements are unaffected by the EO. Federal contractors, subject to the requirements to create an AAP for veterans and individuals with disabilities, must continue to comply with those requirements.
- Federal contractors should review all internal and external policies and procedures to ensure compliance with the certification requirements.
- Federal contractors should review whether they are subject to any obligation for applicants and new hires to complete any self-identification or whether they should end this practice.
The swift and extensive changes to affirmative action requirements for federal contractors can feel daunting and confusing. At Bricker Graydon, we are here to help with any questions regarding how these changes apply to your business to help ensure compliance as these changes unfold.
