In a series of early-term Executive Orders, President Trump has changed the affirmative action landscape for employers doing business with the Federal government. Ending Illegal Discrimination and Restoring Merit-Based Opportunity, released January 21, 2025, revokes Executive Order 11246, as amended, which requires Federal contractors and subcontractors (contractors) to take affirmative action to ensure equal opportunity based on race, color, religion, sex, sexual orientation, gender identity, and national origin.
The new Executive Order aims to enforce civil rights laws by stopping what the President refers to as “race- and sex-based preferences under the guise of” diversity, equity, and inclusion programs. Key aspects of the Executive Order include:
- Revoking Executive Order 11246. Notably, employers may continue to comply with related regulations for 90 days following January 21st.
- Instructing the Office of Federal Contract Compliance Programs to cease “promoting diversity,” holding contractors responsible for taking affirmative action, and allowing or encouraging contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
- Streamlining the Federal contracting process by requiring each contract or grant recipient to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
Over the next 120 days, the Attorney General, Director of OMB, and heads of relevant agencies have been instructed to submit “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.” This includes identifying “sectors of concern,” “egregious and discriminatory DEI practitioners,” and measures to deter DEI initiatives. Each agency is instructed to identify up to nine potential civil compliance investigations, with the Executive Order listing publicly traded corporations, large non-profits, foundations, bar and medical associations, and higher education as targets.
It is important to note that many other requirements impacting contractors remain in place:
- Affirmative action for protected veterans and individuals with disabilities, both of which were created by Acts of Congress, continues in its current form.
- Federal reporting of EEO-1 and VETS-4212 Reports remains unchanged.
- Employers holding contracts with various States still have reporting requirements, depending on the State. Minnesota, Ohio, and New Jersey are among the numerous states with additional reporting or filing requirements.
- State-based pay or demographic data reporting requirements remain in place in California, Illinois, and, most recently, Massachusetts.
ONGOING REQUIREMENTS
- Veteran & Disability AAPs
- EEO-1 & VETS-4212 Reports
- State-based AAPs
- State Pay Data Reporting
The January 21st Executive Order follows two related Executive Orders released the prior day:
- Ending Radical and Wasteful Government DEI Programs and Preferencing, which terminates DEI programs within the Federal government, and
- Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which defines “sex” as either male or female, as biologically classified.
For now, employers should ensure they remain in compliance with their continuing obligations, including their AAPs for protected veterans and individuals with disabilities. Many of the implementation efforts employers undertake are driven by the regulations for these two groups, so it’s important to be cautious when beginning the process of removing implementation efforts related to women and minorities. HR Works will provide further guidance to clients over the next 90 days, helping employers ensure compliance with both the continuing and changing rules.
President Trump’s focus is one of ensuring non-discrimination, which is the work of many HR professionals. Reframing the tools historically used in affirmative action planning to ensure non-discrimination and equal opportunity for all workers is both lawful and familiar to many practitioners in the industry.
As we have for over 30 years, HR Works will continue to be your trusted partner for all HR compliance needs in a volatile regulatory environment. We are here to support our Clients through the transition to any new compliance framework, regardless of direction. HR Works will continue providing updates to assist you through this and other changes as they occur.
