Among the wave of Executive Orders issued by President Trump was one rescinding a 1965 Order established by President Lyndon B. Johnson (“LBJ”) designed to prevent workplace discrimination by federal contractors. This LBJ Order is the basis for all Affirmative Action obligations of federal contractors. President Trump’s rescinding Executive Order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” is part of President Trump’s broader campaign to dismantle diversity, equity, and inclusion (“DEI”) initiatives in both the public and private sectors.
LBJ’s Order and Trump’s Rollback
Executive Order 11246 was signed by LBJ in 1965, just one year after the Civil Rights Act was passed. The Order prohibited workplace discrimination by federal contractors and subcontractors and required them to take “affirmative action” to ensure equal opportunity. It also gave the Labor Department the authority to enforce its provisions.
President Trump’s Executive Order rescinding LBJ’s Order stated DEI initiatives can violate civil rights laws. This Order removed all affirmative action requirements imposed on federal contractors/subcontractors while still prohibiting consideration of race, color, sex, sexual preference, religion, or national origin when making employment decisions. Additionally, the Order requires the following provisions to be included in every federal contract or grant award:
- A term requiring the recipients to agree that compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions; and
- A term requiring such recipient to certify it does not operate any programs promoting DEI that violate Federal anti-discrimination laws.
For Federal contractors, this is a huge development but whether the Order will withstand court scrutiny is unknown. Right now, affirmative action is gone but before relying on this to change federal contractor’s practices check with counsel to monitor the status of the legal challenges.
Warning to the Private Sector
Trump’s efforts to dismantle DEI initiatives extend beyond just federal contractors and the public sector. Trump’s Executive Order encourages the private sector to “end illegal DEI discrimination and preferences.” Specifically, Trump ordered the Attorney General to prepare a report within 120 days providing recommendations to encourage the private sector to end DEI initiatives. The report was ordered to contain a proposed strategic enforcement plan intended to deter DEI efforts.
Employer takeaways
The crackdown on DEI does not come as a surprise, and many large corporations rolled back their DEI initiatives in the months leading up to Trump’s second term. As a precaution, employers with DEI programs or similar initiatives should review any such program to ensure compliance with anti-discrimination laws. Moreover, employers should remain vigilant for updates regarding any further anti-DEI actions. The current Administration has many irons in their fire. Whether it will push this issue, remains to be seen.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
