By: Samantha J. Wood

February 12, 2025

On January 21, 2025, President Trump issued an Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”  This Order revokes Executive Order 11246 (signed in 1965), which historically required federal contractors and subcontractors to take affirmative action initiatives to ensure applicants and employees were treated without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.

While President Trump’s directive allows contractors to continue complying with E.O. 11246 for a period of 90 days (or until April 21, 2025), it instructs the Office of Federal Contract Compliance Programs (OFCCP) to immediately refrain from holding federal contractors and subcontractors responsible for taking affirmative action, promoting diversity, or allowing or encouraging contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.  It also instructs the Attorney General to submit recommendations for other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including diversity, equity, and inclusion (DEI).

Under this new Order, federal contractors and subcontractors are no longer required to prepare and maintain annual affirmative action programs pursuant to E.O. 11246.  Additionally, any pending or ongoing compliance evaluations or audits under E.O. 11246 will be terminated.

However, on February 3, 2025, several groups, including the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers, and the Mayor and City Council of Baltimore Maryland, sued the Trump Administration in the U.S. District Court for the District of Maryland, seeking a court order declaring that the Executive Order is unlawful.  Specifically, the Plaintiffs argue that the Order exceeds the President’s executive legal authority, violates the First Amendment by chilling free speech and academic freedom, and violates the Fifth Amendment right to due process due to a lack of guidance and clarity.

Regardless of the outcome of the litigation, employers must be mindful that they still have anti-discrimination and affirmative action obligations under other statutory frameworks, including:

• Section 503 of the Rehabilitation Act of 1973 & the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). These laws require contractors to develop annual affirmative action plans, solicit self-identification information, and set utilization goals for individuals with disabilities and protected veterans.
• Title VII of the Civil Rights Act of 1964 and state non-discrimination laws. These laws mandate equal employment opportunity and non-discrimination of individuals on the basis of race, color, religion, national origin, and sex. As such, nothing within the new Order prevents contractors from continuing to monitor or evaluate their employment practices to ensure they are free from discriminatory effect.
• EEO-1 Reporting. Private employers with 100 or more employees and certain federal contractors are still required to file annual EEO-1 reports.
• VETS-4212 Reporting. Federal contractors and subcontractors with contracts worth at least $150,000 must still file annual VETS-4212 reports.
• Federal Equal Pay Act and similar state or local laws. These laws require pay equity and pay transparency.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have