With the stroke of a pen, President Trump demolished a sixty-year cornerstone of federal anti-discrimination law that required federal government contractors to prepare and adhere to affirmative action plans.
The Executive Order titled “ENDING ILLEGAL DISCRIMINATION AND RESTORING MERIT-BASED OPPORTUNITY” was signed by the President on the evening of his first full day in office, Tuesday, January 21st. Among other changes, the EO formally revokes “Executive Order 11246 (Equal Employment Opportunity)” which was signed by President Lyndon B. Johnson on September 24,1965. EO 11246 has long prohibited federal contractors and federally assisted construction contractors and sub contractors, who do over $10,000 in Government business per year, from discriminating in employment decisions on the basis of race, color, religion, sex, gender identity or national origin. EO 11246 also imposed the requirement on such contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. President Barack Obama in 2014 amended that order via Executive Order 13672, which added “sexual orientation or gender identity” to the list of protected classes.
The Office of Federal Contract Compliance Programs (OFCCP), an agency within the United States Department of Labor (DOL), has been the federal entity primarily responsible for ensuring that employers comply with EO 11246. OFCCP also enforces Section 503 of the Rehabilitation Act of 1973, which provides disability protections for federal workers, and the Vietnam Era Veterans Readjustment Assistance Act of 1974. OFCCP has promulgated and enforced its detailed regulations, requiring federal contractors to prepare and follow annual “affirmative action plans.” The revocation of EO 11246 substantially curtails the authority and the scope of responsibilities of the OFCCP.
“The [OFCCP]……shall 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,” Trump’s order reads.
Sweeping changes to federal-level affirmative action and DEI programs were widely anticipated after Trump’s electoral victory in November 2024. During the first Trump administration (2017-2021), many had predicted the demise of OFCCP and the downfall of EO11246. However, OFCCP remained active during Trump’s presidency, instituting new types of audits and issuing new Directives and regulations that were widely seen as contractor-friendly. Many of these efforts were predictably rescinded at the outset of the Biden administration. This time, President Trump has taken more immediate and decisive action, essentially obliterating the OFCCP. Trump’s order came just a day after he rescinded multiple Biden-era executive orders, including several others pertaining to diversity and affirmative action.
The impact of Trump’s rescission of EO 11246 (and subsequent EOs that modified and expanded it) is enormous. President Trump has given contractors 90 days to continue their compliance with the existing regulatory scheme, but the recission of EO 11246 all-but certainly marks the end of mandatory “affirmative action plans” for federal government contractors (for at least the next four years). President Trump’s EO also requires each federal government contractor “to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
President Trump’s Executive Order may present a lose-lose decision for government contractors. While his Order effectively renders a contractor’s affirmative action plan or DEI policy unlawful, Ohio law still requires contractors to develop affirmative action plans. Section 153.59 of the Ohio Revised Code prohibits the Department of Development from expending capital funds appropriated by the General Assembly unless the project to receive those funds develops an affirmative action plan. Specifically, the statute requires contractors to develop “an affirmative action program for the employment and effective utilization of disadvantaged persons whose disadvantage may arise from cultural, racial, or ethnic background, or other similar cause, including, but not limited to, race,religion, sex, disability or military status as defined in section 4112.01 of the Revised Code, national origin, or ancestry.” Section 125.111 of the Revised Code implements the same requirements for contracts with cities, villages, counties, townships,and any other political subdivision. President Trump’s order creates a dilemma for businesses that work on government contracts: their affirmative action efforts, which will still be necessary to comply with state contracts, will likely place these contractors into noncompliance with their federal contracts.
Employers who do business with the federal government should remain attentive to the fast-paced and sweeping changes that are underway in the early days of the second Trump presidency.
*Scott DeHart represents public and private sector employers in all aspects of labor and employment law including employment discrimination, collective bargaining, union avoidance and affirmative action plans. Ken Hurley represents public and private employers in all facets of labor and employment law. For assistance in navigating the landscape of affirmative action, DEI, and anti-discrimination law at the federal and state levels, contact Scott DeHart (shd@zrlaw.com) or Ken Hurley (kjh@zrlaw.com) at 614-224-4411.