On January, 21, 2025, President Donald Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” As a result of this Executive Order, government contractors are no longer required to maintain affirmative action programs.
Specifically, this Executive Order rescinded the 1965 Executive Order 11246, which had required companies doing business with the federal government to take “affirmative action” to “recruit and advance” qualified women and minorities and to assess their efforts though affirmative action programs. Depending on the nature of the government contract, government contractors were required at a minimum to establish written policies and in many instances prepare an annual written Affirmative Action Plan.
According to the January 21, 2025 Executive Order, its purpose is to ensure that the “[l]ongstanding Federal civil-rights laws protect[ing] individual Americans from discrimination based on race, color, religion, sex, or national origin” (“Federal Civil Rights laws”) are enforced for the benefit of all Americans.
In furtherance of this Executive Order, on January 24, 2025, the Acting US Department of Labor (DOL) Secretary issued an order instructing employees of the DOL’s Office of Federal Contract Compliance Programs (OFCCP) to cease and desist all investigative and enforcement activity under the rescinded Executive Order 11246 and the regulations promulgated under it. The order also provided that the OFCCP must “notify all regulated parties with impacted open reviews or investigations by January 31, 2025, that the EO 11246 component of the review or investigation has been closed and the Section 503[ of the Rehabilitation Act] and VEVRAA [Vietnam Era Veterans Readjustment Assistance Act] components of the review or investigation are being held in abeyance.”
What does this mean for Federal Government Contractors?
- The Executive Order provides contractors with 90 days to continue to comply with Executive Order 11246.
- The Executive Order further directs federal agencies to include a provision in federal contracts and grant awards requiring the contractor to certify that it does not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
- It is not clear yet when such certifications will begin to be required, but contractors should use this 90 day period to review their compliance programs as well as their Discrimination and Diversity, Equity and Inclusion (DEI) policies to determine what changes may be needed in order to comply with the new Executive Order and in particular for the certification.
- Questions still exist as to the status of compliance with the statutes requiring affirmative action for persons with disabilities and Vietnam Era War Veterans pursuant respectively to Section 503 and VEVRAA
