On Tuesday, President Trump signed an Executive Order to end employment preferences based on, among other things, race and gender, as well as programs to encourage diversity, equity and inclusion. He has directed federal agencies to investigate private sector employers which are not complying with equal opportunity statutes (like Title VII) and are, instead, showing impermissible racial and gender preferences. While the actions aimed at DEI programs was expected, the Executive Order goes as far as to revoke the 1965 Executive Order 11246 which established and governs affirmative action programs required of virtually all federal contractors. While federal contractors may continue to comply with their Affirmative Action Plans and the current regulations for 90 days, OFCCP has been directed to immediately cease promoting “diversity,” holding employers liable for affirmative action or requiring employers to obtain workforce balancing based on race, gender, sexual identity, religion or national origin, etc. DEI objectives are to be removed from grants and federal acquisition materials. The Order specifically provides that it does not affect employment preferences for veterans and does not prohibit free speech, including speech which endorses or advocates DEI initiatives (even if considered to be illegal under this Executive Order). The Order is silent about the statutory Rehabilitation Act and Vietnam Era Readjustment Act requirements of federal contractors. The DOL and OFFCP indicated on Thursday that all pending EO 11246 investigations, enforcement activity and conciliations will be closed and the Rehab and VERA investigations and reviews are being held in abeyance pending further guidance.
The Order also indicates an intention to formulate a policy of
private sector enforcement of EEO laws against DEI policies. As part of that initiative:
As a part of this plan, each
agency shall identify up to nine potential civil compliance investigations
of publicly traded corporations, large non-profit corporations or associations,
foundations with assets of 500 million dollars or more, State and local bar and
medical associations, and institutions of higher education with endowments over
1 billion dollars;
The text of the order is below, with parts boded of
particular interest:
ENDING ILLEGAL DISCRIMINATION
AND RESTORING MERIT-BASED OPPORTUNITY
Section 1. Purpose.
Longstanding Federal civil-rights laws protect individual Americans from
discrimination based on race, color, religion, sex, or national origin.
These civil-rights protections serve as a bedrock supporting equality of
opportunity for all Americans. As President, I have a solemn duty to
ensure that these laws are enforced for the benefit of all Americans.
Yet today, roughly 60 years after the passage of the Civil Rights Act of 1964,
critical and influential institutions of American society, including the
Federal Government, major corporations, financial institutions, the medical
industry, large commercial airlines, law enforcement agencies, and institutions
of higher education have adopted and actively use 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 of this Nation.
Illegal DEI and DEIA policies not only violate the text and spirit of our
longstanding Federal civil-rights laws, they also undermine our national unity,
as they deny, discredit, and undermine the traditional American values of hard
work, excellence, and individual achievement in favor of an unlawful,
corrosive, and pernicious identity-based spoils system. Hardworking
Americans who deserve a shot at the American Dream should not be stigmatized,
demeaned, or shut out of opportunities because of their race or sex.
These illegal DEI and DEIA policies also threaten the safety of American men,
women, and children across the Nation by diminishing the importance of
individual merit, aptitude, hard work, and determination when selecting people
for jobs and services in key sectors of American society, including all levels
of government, and the medical, aviation, and law-enforcement
communities. Yet in case after tragic case, the American people have
witnessed first-hand the disastrous consequences of illegal, pernicious
discrimination that has prioritized how people were born instead of what they
were capable of doing.
The Federal Government is charged with enforcing our civil-rights laws.
The purpose of this order is to ensure that it does so by ending illegal
preferences and discrimination.
Sec. 2. Policy. It is the policy of the United States to protect
the civil rights of all Americans and to promote individual initiative,
excellence, and hard work. I therefore order all executive departments
and agencies (agencies) to terminate all discriminatory and illegal
preferences, mandates, policies, programs, activities, guidance, regulations,
enforcement actions, consent orders, and requirements. I further order
all agencies to enforce our longstanding civil-rights laws and to combat
illegal private-sector DEI preferences, mandates, policies, programs, and
activities.
Sec. 3. Terminating Illegal Discrimination in the Federal
Government. (a) The following executive actions are hereby revoked:
(i) Executive Order 12898 of February 11, 1994 (Federal
Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations);
(ii) Executive Order 13583 of August 18, 2011 (Establishing a
Coordinated Government-wide Initiative to Promote Diversity and Inclusion in
the Federal Workforce);
(iii) Executive Order 13672 of July 21, 2014 (Further Amendments to
Executive Order 11478, Equal Employment Opportunity in the Federal Government, and
Executive Order 11246, Equal Employment Opportunity); and
(iv) The Presidential Memorandum of October 5, 2016 (Promoting
Diversity and Inclusion in the National Security Workforce).
(b) The Federal
contracting process shall be streamlined to enhance speed and efficiency,
reduce costs, and require Federal contractors and subcontractors to comply with
our civil-rights laws. Accordingly:
(i) Executive Order 11246 of September 24, 1965 (Equal
Employment Opportunity), is hereby revoked. For 90 days from the date of
this order, Federal contractors may continue to comply with the regulatory
scheme in effect on January 20, 2025.
(ii) The Office of Federal Contract Compliance Programs
within the Department of Labor shall immediately cease:
(A) Promoting “diversity”;
(B) Holding Federal contractors and subcontractors responsible for taking
“affirmative action”; and
(C) Allowing or encouraging Federal contractors and subcontractors to
engage in workforce balancing based on race, color, sex, sexual preference,
religion, or national origin.
(iii) In accordance with
Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for
Faith-Based and Community Organizations), the employment, procurement, and
contracting practices of Federal contractors and subcontractors shall not
consider race, color, sex, sexual preference, religion, or national origin in
ways that violate the Nation’s civil rights laws.
(iv) The head of each
agency shall include in every contract or grant award:
(A) A term requiring the contractual counterparty or grant recipient to
agree that its compliance in all respects with all applicable Federal
anti-discrimination laws is material to the government’s payment decisions for
purposes of section 3729(b)(4) of title 31, United States Code; and
(B) A term requiring such counterparty or recipient to certify that it
does not operate any programs promoting DEI that violate any applicable Federal
anti-discrimination laws.
(c) The Director of the Office of Management and Budget (OMB), with the
assistance of the Attorney General as requested, shall:
(i) Review and revise, as appropriate, all Government-wide
processes, directives, and guidance;
(ii) Excise references to DEI and DEIA principles, under whatever
name they may appear, from Federal acquisition, contracting, grants, and
financial assistance procedures to streamline those procedures, improve speed
and efficiency, lower costs, and comply with civil-rights laws; and
(iii) Terminate all “diversity,” “equity,” “equitable decision-making,”
“equitable deployment of financial and technical assistance,” “advancing
equity,” and like mandates, requirements, programs, or activities, as
appropriate.
Sec. 4. Encouraging the Private Sector to End Illegal DEI Discrimination
and Preferences.
(a) The heads of all
agencies, with the assistance of the Attorney General, shall take all
appropriate action with respect to the operations of their agencies to advance
in the private sector the policy of individual initiative, excellence, and hard
work identified in section 2 of this order.
(b) To further inform and
advise me so that my Administration may formulate appropriate and effective
civil-rights policy, the Attorney General, within 120 days of this order, in
consultation with the heads of relevant agencies and in coordination with the
Director of OMB, shall submit a report to the Assistant to the President for
Domestic Policy containing recommendations for enforcing Federal civil-rights
laws and taking other appropriate measures to encourage the private sector to
end illegal discrimination and preferences, including DEI. The report
shall contain a proposed strategic enforcement plan identifying:
(i) Key sectors of concern within each agency’s
jurisdiction;
(ii) The most egregious and discriminatory DEI practitioners in
each sector of concern;
(iii) A plan of specific steps or measures to deter DEI programs or
principles (whether specifically denominated “DEI” or otherwise) that
constitute illegal discrimination or preferences. As a part of this plan,
each agency shall identify up to nine potential civil compliance investigations
of publicly traded corporations, large non-profit corporations or associations,
foundations with assets of 500 million dollars or more, State and local bar and
medical associations, and institutions of higher education with endowments over
1 billion dollars;
(iv) Other strategies to encourage the private sector to end
illegal DEI discrimination and preferences and comply with all Federal
civil-rights laws;
(v) Litigation that would be potentially appropriate for
Federal lawsuits, intervention, or statements of interest; and
(vi) Potential regulatory action and sub-regulatory guidance.
Sec. 5. Other Actions. Within 120 days of this order, the Attorney
General and the Secretary of Education shall jointly issue guidance to all
State and local educational agencies that receive Federal funds, as well as all
institutions of higher education that receive Federal grants or participate in
the Federal student loan assistance program under Title IV of the Higher
Education Act, 20 U.S.C. 1070 et seq., regarding the measures and practices
required to comply with Students for Fair Admissions, Inc. v. President and
Fellows of Harvard College, 600 U.S. 181 (2023).
Sec. 6. Severability. If any provision of this order, or the
application of any provision to any person or circumstance, is held to be
invalid, the remainder of this order and the application of its provisions to
any other persons or circumstances shall not be affected thereby.
Sec. 7. Scope. (a) This order 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,
20 U.S.C. 107 et seq.
(b) This order does not prevent State or local governments, Federal
contractors, or Federally-funded State and local educational agencies or
institutions of higher education from engaging in First Amendment-protected
speech.
(c) This order does not prohibit persons teaching at a Federally
funded institution of higher education as part of a larger course of academic
instruction from advocating for, endorsing, or promoting the unlawful
employment or contracting practices prohibited by this order.
Sec. 8. General Provisions. (a) Nothing in this order shall
be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department,
agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
(c) This order is not intended to and does not create any right or
benefit, substantive or procedural, enforceable at law or in equity by any
party against the United States, its departments, agencies, or entities, its
officers, employees, or agents, or any other person.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
