Since 1965, federal contractors have been required to take affirmative action to ensure that they are not discriminating against employees. The affirmative action requirement stemmed from an executive order (11246) issued during the Johnson Administration. That executive order related specifically to taking affirmative action to avoid discrimination on the basis of sex, race, and ethnicity. From Executive Order 11246, the Office of Federal Contract Compliance Programs (OFCCP) was born, and a body of regulation was developed. Affirmative action was later expanded by legislative action of Congress to include disability and veteran status. Our federal contractor clients are well aware of these affirmative action requirements, and many have endured audits by OFCCP evaluating their compliance.
Today, the pendulum swung. As part of his executive order eliminating DEI initiatives, President Trump also gutted affirmative action. President Trump’s executive order revokes the entirety of President Johnson’s Executive Order 11246, the origin of affirmative action. As a result, the affirmative action requirements relative to sex and race/ethnicity no longer exist. Federal contractors are only permitted to continue complying with the current regulatory scheme for 90 days.
President Trump’s executive order does not stop there. It also orders OFCCP to stop: (1) promoting diversity; (2) “holding federal contractors and subcontractors responsible for taking ‘affirmative action’”; and (3) allowing or encouraging federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. In effect, OFCCP is severely hamstrung.
Instead of the affirmative action requirements, President Trump’s order simply requires that federal contractors agree that its compliance with existing anti-discrimination laws is material to the government’s issuance of payment on the contract. The order also requires that a contractor affirmatively certify that it does not operate any DEI programs that violate federal anti-discrimination laws.
Notably, President Trump cannot eliminate by executive order the statutory affirmative action requirements created by Congress related to disability and veteran status. Unless and until Congress revokes those statutes, federal contractors continue to have affirmative action obligations with respect to those traits.
So, where does that leave you if you are a federal contractor? Well, if you are collecting data and performing data analyses related to sex and race affirmative action, you need not. You should, however, continue to comply with disability and veteran affirmative action requirements (though these are somewhat easier than sex and race).
It is clear that the intent behind President Trump’s executive order is to rely on existing federal discrimination laws to address employment discrimination in America. It will be interesting to see whether a spike in federal discrimination lawsuits, and related burden on the judiciary, is an unintended consequence of today’s executive order.
