President Trump Unravels 60 Years’ Worth of Equal Employment Opportunity Policies and Practices for Government Contractors and Beyond: Key Points in this Developing Area

On January 21, 2025, President Trump issued an executive order titled, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," dismantling over 60 years of equal employment opportunity laws. Among other things, the Executive Order purportedly seeks to end "illegal preferences and discrimination" in enforcing federal civil-rights laws.

Key Point #1: Revocation of Longstanding Affirmative Action Requirements for Federal Contractors

Among others, the Executive Order revokes Executive Order 11246, which has required federal contractors to engage in affirmative action with respect to women and minorities since 1965. Federal contractors were not allowed to make employment decisions based on those protected characteristics but instead were required to evaluate their workforce data to set goals for women and minorities and to make good-faith efforts to provide for equal employment opportunities for all.

In revoking Executive Order 11246, President Trump's Executive Order has demanded the Office of Federal Contract Compliance Programs (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.

The new mandate does not currently impact affirmative action requirements for veterans (under the Vietnam Era Veterans' Readjustment Act of 1974 (VEVRAA)) or individuals with disabilities (under the Rehabilitation act of 1973).

Federal contractors should work closely with employment counsel to evaluate their existing and future affirmative action and reporting requirements in light of President Trump's Executive Order.

Key Point #2: Dismantling of DEI in the Federal Government and Private Sectors

President Trump's Executive Order also targets "illegal" diversity, equity, and inclusion ("DEI") policies. According to his Executive Order, certain DEI policies may "violate the text and spirit of our longstanding Federal civil-rights laws" and "undermine our national unity" by "discredit[ing] … the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system."

Thus, the Executive Order purportedly fulfills President Trump's "promise" to "terminate DEI in the federal government" while also encouraging private employers to "end illegal discrimination and preferences, including DEI." Federal contractors will be required to specifically certify that they do not maintain such programs. The Executive Order could also impact consent decrees that promote DEI initiatives.

The Executive Order does not define what constitutes an "illegal" DEI policy. Thus, employers should work closely with employment counsel to evaluate existing DEI and Equal Employment Opportunity policies and stay tuned for updates as the Trump Administration provides further guidance on the intended scope and consequence of the newest order.

For the Executive Order, visit: (https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/).

For a Fact Sheet explaining the Executive Order, visit: (https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/

Authors: Employment and Labor Law Attorneys MacKenzie Hertz and Lisa Edison-Smith