Breaking News: Trump Ends Affirmative Action

Order ends all federal DEI initiatives

Order will impact private DEI initiatives as well

On January 21, 2024, President Trump issued an Executive Order (link below) entitled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity." The Trump Order ends federal affirmative action and all federal DEI initiatives. It also signals a new federal policy that is hostile to private company DEI initiatives. In other words, it's a 180-degree change from the last 60 years.

Background

On September 24, 1965, President Lyndon Johnson signed Executive Order 11246, which since then has governed how the federal government, federal contractors, and federal subcontractors address equal employment opportunity. E.O. 11246 is the source of the requirement that these employers affirmatively promote the hiring and advancement of certain protected classes:

The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

A large body of regulations sets forth E.O. 11246 enforcement policies and practices, and a large segment of the Office of Federal Contract Compliance (OFCCP) is devoted to enforcing it. Because of the amount of federal contracting in the US, this E.O. 11246 is an integral component in the fabric of US employment law, and its policies have bled over into voluntary action within sectors outside of the federal contracting sphere. There are thousands of US workers, not to mention quite a few lawyers, whose occupations are devoted to E.O. 11246 compliance. They will all need to find new work to do.

The Trump order

There will plenty of commentary in the media to follow. For now, SLN will summarize the more significant provisions of the Trump Order, starting with its core mandates revoking E.O. 11246, ending promotion of diversity, and ending affirmative action:

Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), is hereby revoked.  For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.
(ii)   The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease:
(A)  Promoting “diversity”;
(B)  Holding Federal contractors and subcontractors responsible for taking “affirmative action”; and
(C)  Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.

Broader implications for the private sector

The Trump Order signals consequences far beyond the federal contracting sphere, including the potential for future federal discrimination enforcement actions against private sector employers that engage in DEI initiatives:

Sec. 4. Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences. (a) The heads of all agencies, with the assistance of the Attorney General, shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order.
(b) To further inform and advise me so that my Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. The report shall contain a proposed strategic enforcement plan identifying:
(i) Key sectors of concern within each agency’s jurisdiction;
(ii) The most egregious and discriminatory DEI practitioners in each sector of concern;
(iii) A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
(iv) Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
(v) Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
(vi) Potential regulatory action and sub-regulatory guidance.

In short, it's new world folks. In the future, DEI initiatives are to be treated as unlawful discrimination under federal law.

Will the Trump Order be challenged in the courts? Perhaps, but if LBJ could write an Order, there is probably no reason why a successor President cannot, at a minimum, withdraw it. Otherwise, how far this will go remains to be seen.

End of an era

In a 2003 case that unsuccessfully challenged affirmative action in law school admissions, Justice Sandra Day O'Connor famously wrote:

The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

The end of an era envisioned by Justice O'Connor has arrived, although likely not in the manner she envisioned.

Full text of the Trump Order here: Ending Illegal Discrimination And Restoring Merit-Based Opportunity – The White House