The Death Knell for Affirmative Action Programs and DEI in the Workplace

On January 21, 2025, President Donald J. Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which can be found here. This Order seeks to eliminate certain affirmative action and Diversity, Equity, and Inclusion (DEI) programs and initiatives, which are referred to in the Order as “race- and sex-based preferences,” on the argument they discriminate against non-minority individuals based on their race, gender, national origin, sexual orientation, and gender identity. The Order states that “the purpose of this order is to ensure that [the government enforces civil rights laws] by ending illegal preferences and discrimination.” The Order revoked a slew of long-standing executive orders, including Executive Order 11246, an Order signed by President Johnson in 1965 following the enactment of the Civil Rights Act of 1964, which required federal contractors and subcontractors to have affirmative action programs and written plans to analyze and remedy any obstacles to equal employment opportunity in the workplace.

The Order has several components that all employers should be aware of, but critically for government contractor companies, the Order strips the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) of any authority to enforce equal employment opportunity requirements on the approximately 205,000 federal contractor companies in the U.S. It directs the OFCCP to immediately cease promoting “diversity” in the workplace. The OFCCP is further directed to cease “[h]olding Federal contractors and subcontractors responsible for taking ‘affirmative action’,” and to cease “allowing or encouraging workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” This directive seems to undermine much of the mission and purpose of the OFCCP. Indeed, a recent Order issued by Acting Secretary of Labor Vincent Micone, III directs the OFCCP to cease any enforcement actions, lawsuits, conciliation agreements, investigative reviews, and audits of contractors’ affirmative action compliance programs if stemming from the now-rescinded E.O. 11246.[1]

Similarly, the Order directs the Office of Management and Budget (the “OMB”) to remove DEI principles from all federal contracting policies, contracts, and other government documents. The Order also states that federal contractor companies shall not consider race, color, sex, sexual preference, religion, or national origin in any way that violates the administration’s interpretation of the nation’s civil rights laws. Lastly, federal contractors and subcontractors will now be required to affirm that they are in compliance with the Order and that they do not operate any DEI programs that violate the Order.

Beyond government contractors, the Order also takes aim at all private employers. It encourages private employers to do away with DEI initiatives altogether. Next, the Order directs the U.S. Attorney General to submit a report containing her 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 must contain proposals and plans for identifying “[t]he most egregious and discriminatory DEI practitioners in each sector;” “specific steps or measures to deter DEI programs or principles;” “strategies to encourage the private sector to end illegal DEI discrimination and preferences;” plans for potential litigation; potential regulatory action; and potential civil compliance investigations of companies, non-profits, associations, foundations, bar associations, medical associations, and higher education institutions. This report must be submitted by the Attorney General by May 21, 2025. The Order also directs all executive agency heads to take appropriate action to advance the Trump administration’s policy in the private sector, which could include legal action against private companies that maintain DEI policies and programs that are contrary to the objectives of the current administration.

The Trump administration is drawing clear lines in the sand when it comes to DEI and equal employment. Yet, the Order does not rescind Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act, the Age Discrimination in Employment Act, or any other federal discrimination law. Congress would have to act for those laws to be repealed. Further, the Order explicitly states that it in no way affects hiring preferences for veterans under the Randolph-Sheppard Act. With all of that said, it appears that the administration views employment-related programs or initiatives seeking to protect or promote women, people of color, or the LGBTQ+ community as discriminatory and violative of the law. Federal contractors, and indeed perhaps all private employers, will be scrutinized to ensure they do not have DEI programs that violate the Trump administration’s stance related to discrimination.

Employers, and in particular those who do business with the federal government, should carefully review their EEO, Affirmative Action, and other DEI policies and programs to consider whether they are at risk of noncompliance with the current directives as set forth in the Executive Order. The Order states that “Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025,” but only for 90 days from the date of the Order. After that, absent any successful legal challenges, under the terms of the Order federal government contractors and subcontractors will be prohibited from maintaining affirmative action programs and DEI initiatives that are contrary to the purposes of the Executive Order.