Fulfilling obligations after revocation of LBJ’s EO prohibiting discrimination in employment by federal contractors | McAfee & Taft
“It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, 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.”
As such, EO 11246 prohibits employment discrimination on the basis of race, creed, color, national origin or sex by governmental contractors, and requires governmental 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.” Johnson subsequently executed an amendment in 1967 to extend these prohibitions and obligations to discrimination on the basis of sex.
These prohibitions and affirmative obligations are not unique. Discrimination in federal employment on the basis of disability is prohibited pursuant to Section 503 of the Rehabilitation Act (1973), and discrimination on the basis of veteran status is prohibited under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (1974). These laws also include affirmative action obligations that are specified in federal regulations.
The Office of Federal Contract Compliance Programs (OFCCP) was created in order to enforce EO 11246, as well as Section 503 and VEVRAA. The OFCCP enacted regulations providing guidelines for affirmative action policies required by EO 11246. Generally speaking, those guidelines apply to any prime contract or subcontract with the federal government for more than $10,000 for the purchase, sale or use of personal or non-personal services. See e.g., 41 C.F.R. § 60-1.40; 41 C.F.R. Part 60-2.
In recent years, the OFCCP has relied on extensive audit authority to enforce EO 11246, often with a focus on pay equity, including pay equity among senior executives and managers.
Trump revokes EO 11246
EO 11246 was in effect throughout each administration until it was revoked by President Trump on January 21, 2025, as part of his Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” In the order, Trump states that “diversity, equity, and inclusion” (“DEI”) and “diversity, equity, inclusion, and accessibility” (“DEIA”) policies “can violate the civil-rights laws of this Nation.” He further states such “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….”
Trump then revoked several executive orders, including EO 11246.
The order further directs the OFFCP to “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.”
To that end, the Trump order directs the OFCCP to “excise references to DEI and DEIA principles, under whatever name they may appear,” from federal contracts. It also requires “every contract or grant award” include a certification that the contractor “does not operate any programs promoting DEI that violate any federal anti-discrimination laws.”
The Trump order provides, however, that “[f]or 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.”
Immediate Impact
What does all of this mean – at least in the short term? It’s a bit hard to say, but it seems clear that through April 21, 2025, no federal (sub)contractor will be penalized for complying with existing affirmative action plans or efforts established pursuant to EO 11246.
Governmental agencies have begun implementing the Trump order, including by issuing directives to personnel (sometimes referred to as “deviations”) to cease inclusion of standard affirmative action provisions in contracts.
The OFCCP has ceased enforcing EO 11246, even notifying employers in the midst of ongoing audits that its investigations will cease, without completion.
Longer-term compliance
What does this mean for employers going forward? The intent of the Trump order certainly seems to be to eliminate all affirmative action or broader diversity efforts by federal contractors and subcontractors. In fact, it expressly “encourage[es] the Private Sector to End Illegal DEI Discrimination and preferences.”
It may be helpful to revisit Schoolhouse Rock. There are three separate branches of government, each intended to be independent of the others. Executive orders do not revoke or somehow supersede federal legislation passed by Congress. Executive orders do not overturn or somehow eliminate decisions by state and federal courts interpreting such legislation. The Trump order does not alter existing obligations under Title VII, or the principles announced by countless courts interpreting Title VII.
Private employers, whether they are qualifying federal contractors or not, remain subject to prohibitions on discrimination as set forth in Title VII (which prohibits discrimination on the basis of race, gender and national origin). And employers remain free to pursue affirmative action goals, subject to existing limitations.
“Diversity programs, no matter how well-meaning, are not constitutionally permissible absent a specific showing of prior discrimination.” See e.g., Messer v. Meno, 130 F.3d 130, 136 (5th Cir. 1997). Such programs – whether implemented in order to comply with governmental regulation or voluntarily adopted – have been found unlawful when implemented by an employer who has not first determined that it has a need to eliminate consequences of historical discrimination.
Executive Order 11246 has often been cited as evidence to support efforts, including executive findings regarding the lasting impact of prior discrimination such as addressed in EO 11246. Employers have relied on the findings and policies announced in EO 11246 to support their own diversity initiatives based on race, gender and/or national origin.
With the revocation of EO 11246, employers are advised to continue with affirmative action efforts relating to race, gender and/or national origin only after first determining that such classifications are underrepresented in its own workforce as a result of historical discrimination. See e.g., Taxman v. Bd. of Educ. of Tp. of Picataway, 91 F.3d 1547 (3rd Cir. 1996) (noting that “unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of [Title VII],” and suggesting that without evidence of prior discrimination, either within the industry or by the employer, general diversity goals do not justify such plans). Employers can also focus on historical discrimination within a particular industry, as opposed to historical discrimination within its own workforce which is an unfavored or at least delicate admission.
