President Trump Rescinds Executive Order 11246 and Restores Merit-Based Opportunity

A copy of this alert can be found HERE.

On inauguration day and the day to follow, President Trump issued 49 Presidential Actions, which included one titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This order establishes the policy of the United States to “protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work.”

The order identifies that “‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) programs can violate the civil-rights laws of this Nation.” The order calls out DEI and DEIA programs as being implemented by the “Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education.” This order not only revokes several orders that promote diversity and inclusion in the Federal workforce, but also significantly changes expectations of Federal contractors and businesses in the private sector.

Changes for Federal Contractors

This order revokes Executive Order 11246 of September 24, 1965, which requires certain Federal contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Federal contractors may continue to comply with the regulatory requirements previously in effect until April 20, 2025 (90 days from the date of this order).

Effective immediately, however, there will likely be no enforcement of prior Affirmative Action Plan requirements. The Office of Federal Contract Compliance Programs has been ordered to immediately cease from: 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. Instead, the order encourages enforcement of Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations) to ensure that the “employment, procurement, and contracting practices of Federal contractors and subcontractors shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation’s civil rights laws.”

In federal contracts to come, the head of each Federal agency is required under this order to include in every contract or grant award a term requiring the contracting party or grant recipient to agree that it will comply with all anti-discrimination laws and to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

Changes for the Private Sector

President Trump has ordered “all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” To effectuate strategic enforcement in the private sector, President Trump has requested a report within 120 days of the order identifying, among other things, “[k]ey sectors of concern within each agency’s jurisdiction,” “[t]he most egregious and discriminatory DEI practitioners in each sector of concern,” and “[a] plan of specific steps or measures to deter DEI programs or principles.”

Each agency has been asked to “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.” The agencies will also be identifying litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest that will advance this new policy. Regulatory guidance can also be expected to be issued on this new policy of the United States.

For additional information, please contact any of the following:

Kaitlin A. Brown at [email protected],

David Black at [email protected] with any questions or more specific situations.