President Donald Trump signed an Executive Order (EO) entitled Ending Illegal Discrimination and Restoring Merit-Based Opportunity that rescinds President Lyndon Johnson’s 1965 EO 11246—which authorize the affirmative action obligations federal contractors have complied with for almost 60 years. The White House released a fact sheet on the EO here. Under Trump’s EO “[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.” The EO bars the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) from holding federal contractors and subcontractors responsible for taking “affirmative action” based on race, color, sex, sexual preference, religion, or national origin. Going forward, federal contractors will be required to certify that they “do not operate any programs promoting Diversity, Equity, and Inclusion (DEI) that violate any applicable federal anti-discrimination laws” and “to agree that [their] compliance in all respects with all applicable federal anti-discrimination laws is material to” whether they are in compliance with the Federal False Claims Act.
President Trump’s EO further directs “all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements…and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” To this end, the U.S. Attorney General must, within 120 days of the order, “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 is to detail “sectors of concern” as far as improper DEI practices within each federal agency’s jurisdiction, examples of the most “egregious and discriminatory DEI practitioners” in each such sector, and provide “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 in the private sector. Each federal 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,” and well as litigation and subregulatory guidance that would promote the EO’s purpose of ending affirmative action and DEI. The EO “does not apply to lawful federal or private-sector employment and contracting preferences for veterans of the U.S. armed forces.”