Analyzing the latest Executive Order of President Trump entitled “Ending illegal discrimination and restoring merit-based opportunity”
The implications of this Executive Order are far-reaching, affecting both federal contractors and private employers across the United States. The Executive Order has far-reaching implications for both federal contractors and employers in the United States.
Key aspects of the Executive Order
A major component of the Executive Order, is the revocation Executive Order 11246. Executive Order 11246 was enacted by President Lyndon B. Johnson in 1965. It mandated that federal contractors implement affirmative action programs for equal employment opportunities for minorities and women. According to the Department of Labor this requirement is deeply embedded in the operating frameworks of around 25,000 firms and 120,00 establishments, affecting nearly 20% of U.S. workers. The Executive Order of President Trump effectively dismantles federal affirmative action mandates based on race and gender. This includes the cessation or activities such as promoting diverse initiatives and holding contractors responsible for affirmative actions measures. Contractors “may’ continue to comply with the existing affirmative actions requirements under Executive Order 11246 up until April 20, 2025. The Office of Federal Contract Compliance Programs is also directed to stop balancing the workforce based on race or color, sex or sexual preference, religion or nationality. The overarching goal, as stated in the Executive Order, is to promote individual initiative, excellence, and hard work, aligning employment practices more closely with merit-based principles.
Despite these sweeping changes, it is crucial for federal contractors and subcontractors to remain compliant with existing anti-discrimination laws, such as Title VII of the Civil Rights Act, the Equal Pay Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act. Moreover, obligations under the Vietnam Era Veterans Readjustment Assistance Act and Section 503 Rehabilitation Act remain unchanged. These statutes continue to require affirmative action and non-discriminatory practices specific to employees who are veterans or are disabled, underscoring the nuanced landscape of compliance that employers must navigate.
Additionally, the Executive Order calls for the development of a new contract term, likely replacing the current Equal Employment Opportunity clause, for inclusion in federal contracts. This clause will require contractors agree that compliance with federal anti-discrimination law is essential for the government’s decision to pay. Contractors must certify they do not run any programs that promote DEI in violation of federal anti-discrimination law. This certification is described in the White House Fact Sheet about the Executive Order as a clear declaration that contractors will not engage illegal discrimination including any DEI practices that the order deems illegal. This certification is expected to be published in the upcoming weeks.
Employers should carefully review their current employment practices to ensure compliance with nondiscrimination statutes, such as Title VII of the Civil Rights Act of 1964. To ensure compliance, employers should review any policies or practices which may be in conflict with the law. Additionally, employers should review their Equal Employment Opportunity policies and communications to assess potential risks of enforcement agency investigations.
Employers should also stay informed about potential challenges to the Executive Order and look for additional information about sectors, industries, and organizations that federal agencies may identify for investigation. As these changes unfold, guidance from the Attorney-General, Secretary of Education and other federal agencies is essential. Employers must remain vigilant in their compliance strategies as the ramifications from this order unfold. It is important to stay informed about these developments, and seek legal advice in order to navigate this new era.