White House Revokes Executive Order 11246, Discourages DEI

History and Background of E.O. 11246, as Amended

President Lyndon B. Johnson issued Executive Order 11246 in 1965. The original mandate of the executive order was to require the Secretary of Labor to ensure equal opportunity in federal contractors’ employment practices, including recruitment and hiring.²  Under Executive Order 11246, federal contractors were both prohibited from discriminating in employment and required to take affirmative action to ensure applicants and employees received equal opportunities based on such protected characteristics as race and religion.³  In 2014, under President Barack Obama, Executive Order 11246 was amended to include sexual orientation and gender identity as protected characteristics.⁴

The OFCCP is responsible for ensuring that federal contractors and subcontractors comply with legal requirements not to discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or veteran status.⁵  The OFCCP conducts evaluations and investigations of federal contractors’ and subcontractors’ policies and procedures, monitors their progress in upholding regulatory requirements, including the requirement to maintain written affirmative action plans, and makes recommendations to the Solicitor of Labor regarding enforcement actions.⁶

“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”

According to the Executive Order “critical and influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called “diversity, equity, and inclusion” (“DEI”) or “diversity, equity, inclusion, and accessibility” (“DEIA”) that can violate the civil-rights laws of this Nation.” For this reason, President Trump stated in the Order that “I therefore order all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”

In furtherance of its stated objectives, the Executive Order states that Executive Order 11246 is revoked, although federal contractors may continue to comply with Executive Order 11246 for ninety (90) days from the date of the Order.⁷  The Order further requires that each party to a federal contract must “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Finally, the Executive Order also states that the OFCCP must immediately cease the following:

1. "Promoting ‘diversity’;
2. Holding Federal contractors and subcontractors responsible for taking ‘affirmative action’; and
3. Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion or national origin.”⁸

The Order clarifies that it does not apply to lawful federal or private sector employment and contracting preferences for veterans of the United States Armed Forces.⁹  The Order also does not apply to individuals protected by the Randolph-Sheppard Act, which was enacted to provide blind individuals with employment opportunities through the operation of vending facilities in federal buildings.¹⁰

Potential Impact

This Executive Order appears to be part of President Trump’s broader endeavors to eliminate DEI and DEIA initiatives both in the federal government and the private sector.¹¹  In the Executive Order, President Trump stated that various government and private institutions use “dangerous, demeaning, and immoral race- and sex-based preferences” under the guise of DEI and DEIA, and that such “illegal” DEI and DEIA policies violate both the text and spirit of federal civil rights laws and decrease the importance of individual merit in hiring and employment.¹²

On January 24, 2025, acting Secretary of Labor Vincent Micone issued an order for all Department of Labor (“DOL”) employees, including OFCCP employees, to immediately cease and desist all investigative and enforcement activity that was carried out under E.O. 11246.¹³  This cease and desist order applies to all pending cases and investigations pertaining to E.O. 11246, and requires that all regulated parties with open reviews and investigations under E.O. 11246 be notified by January 31, 2025 that the component of the review or investigation involving the revoked executive order is closed.¹⁴

As noted above, federal contractors “may” continue to comply for at least 90 days with OFCCP’s E.O. 11246 regulations in place before the new Executive Order issued. During the 90-day period, legal challenges to the new Executive Order and recent guidance from the DOL should help clarify uncertainties. Federal contractors should ensure that they are prepared to comply with the revocation of Executive Order 11246 by April 21, 2025, but remain mindful that the new Executive Order does not eliminate prohibitions against discrimination under federal law.