The End of Executive Order 11246
In one of the first acts of his new term, President Trump issued an executive order entitled Ending Illegal Discrimination and Restoring Merit-Based Opportunity (the “Merit Order”). Most notably, especially for federal contractors, the Merit Order revokes the long-standing Executive Order 11246 entitled Equal Employment Opportunity (“EO 11246”).
EO 11246 was first issued by President Johnson in 1965, to establish non-discriminatory practices and affirmative action in federal government hiring and employment, and it was amended to require that federal contractors not engage in discriminatory employment practices and to ensure that federal contractors would “take affirmative action to ensure that [diverse] applicants are employed.” In more recent years, the “affirmative action” required by EO 112246, along with its subsequent amendments and corresponding regulations, led to robust diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion and accessibility (“DEIA”) policies. The Merit Order, however, provides that DEI and DEIA programs are “dangerous, demeaning and immoral race- and sex- based preferences” that can violate what commentators have referred to as our “color blind” civil rights laws.
In addition to revoking EO 11246, the Merit Order directs the Office of Federal Contract Compliance Programs to immediately cease: (i) promoting diversity; (ii) holding federal contractors and subcontractors responsible for taking “affirmative action”; and (iii) allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. Affirmative action policies that were required for decades under EO 11246 are now considered illegal. Federal contractors have 90 days to comply with the Merit Order’s new regulatory scheme.
What if Your Company Is Not a Federal Contractor?
Even if a company is not a federal contractor, purely private sector companies still need to be aware of the potential implications of the Merit Order. Section 4 of the Merit Order is explicitly titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences.” Section 4 directs the Attorney General, in consultation with the heads of relevant agencies and the Director of the Office of Management and Budget, to submit a report that recommends enforcement of “federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”
The plan also requires each agency to determine up to 9 potential public corporations, large non-profits, foundations with assets of at least $500 million, State or local bar and medical associations, and industries of higher education with endowments over $1 billion dollars for civil compliance investigations.
In short, the Merit Order does not eliminate DEI policies at purely private sector employers, but the administration is clear that continuing such policies could subject a company or organization to scrutiny for violating civil rights laws by having and implementing DEI programs.
Especially given EO 11246’s long history, the Merit Order is a tectonic shift in U.S. civil rights law. If you would like to discuss how this recent development might affect your business, we at Carver Darden are happy to help.
FOR MORE INFORMATION, PLEASE CONTACT THE AUTHORS:
Russell L. Foster
(504) 585-3837
foster@carverdarden.com
Patrick R. Stewart
(504) 585-3829
pstewart@carverdarden.com
