President Trump Rescinds Executive Order 11246
On January 21, President Trump issued a broad Executive Order (EO) titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The order is aimed at what the president describes as “illegal” diversity, equity, inclusion, and accessibility policies.
President Trump’s EO revokes a number of prior executive orders. Most significantly, the EO revoked Executive Order 11246 which was signed by President Lyndon B. Johnson in 1965 and is the legal underpinning for federal contractors’ race and sex affirmative action program requirements.
Additional key points in the EO include:
- Ordering the Office of Federal Contract Compliance Programs (OFCCP)—the agency that enforces Executive Order 11246—to immediately cease promoting diversity.
- Barring the OFCCP from pushing contractors to balance their workforce based on race, sex, gender identity, sexual preference, or religion.
- Requiring agency heads to include in every contract or grant award a term requiring the contractor/grantee to certify that it does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.
Importantly, Section 503 of the Rehabilitation Act of 1973 (a federal law protecting the disabled), the Vietnam Era Veterans’ Readjustment Act of 1974 (VEVRAA) (protecting certain veterans), and OFCCP’s enforcement of these laws do not appear to be in any way impacted by the new EO. In addition, potential obligations of contractors under state or local laws remain unchanged. At this point it is unclear what, if anything, will replace Executive Order 11246. Further, as the obligations under Executive Order 11246 are contractual, there are questions as to how the revocation will be implemented.
More details on this EO and its ongoing impact are certainly forthcoming, and we will continue to monitor these developments and update you as they occur. Please contact the authors of this alert if you have any questions.