Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Since taking office on January 20, 2025, President Trump has issued several executive orders that address inclusion, equity, and diversity (IE&D) programs and policies. Although these orders are important to consider, employers should be aware that they do not alter federal civil rights laws. Indeed, the language used in these orders specifically calls for the enforcement of existing laws, which provide that it is unlawful to make employment decisions based on an employee’s protected traits.
These orders therefore do not call into question the continued legality of IE&D programs that are consistent with non-discrimination laws and recent Supreme Court rulings. That said, we expect the new administration (including the Equal Employment Opportunity Commission) to scrutinize IE&D programs and initiatives very closely. Indeed, in her first statement as acting chair of the EEOC, Commissioner Andrea Lucas noted, “Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination…” Given this fact—and that numerous high-profile advocacy groups are committed to publicly highlighting and calling for investigation of IE&D programs they consider unlawful—employers are strongly advised to review their current practices and policies with experienced counsel under attorney-client privilege.
IE&D Executive Orders Repealed by President Trump
The following are some of the more noteworthy executive orders implicating IE&D issues that were recently repealed by the president.
|
Executive Order Repealed |
Summary |
Proffered Reason for Repeal1 |
|
Executive Order 11246 (September 24, 1965) |
Required federal contractors to implement and maintain affirmative action programs for women and minorities. |
Illegal IE&D policies violate federal civil rights laws, undermine national unity, and shut out individuals from pursuing opportunities. To improve the speed and efficiency of federal acquisition, contracting, grants, and financial assistance procedures, and to comply with civil rights laws. |
|
Executive Order 13672 (July 21, 2014) |
Amended executive order 11246 to require that government contractors take affirmative action to ensure that applicants are employed and treated without regard to their sexual orientation or gender identity during their employment. |
Illegal IE&D policies violate federal civil rights laws, undermine national unity, and shut out individuals from pursuing opportunities. To improve the speed and efficiency of federal acquisition, contracting, grants, and financial assistance procedures, and to comply with civil rights laws. |
|
Executive Order 14035 (June 25, 2021) |
Directed the Office of Management and Budget to: (a) coordinate a government-wide initiative to promote diversity and inclusion in the federal workforce; and (b) develop and issue a government-wide IE&D Strategic Plan. Among other things, the Strategic Plan would define standards of success for IE&D efforts based on leading policies and practices in the public and private sectors as well as identify strategies to advance IE&D, and eliminate, where applicable, barriers to equity in federal workforce functions, including in recruitment; hiring; promotion; retention; performance evaluations and awards; professional development programs; and mentoring programs or sponsorship initiatives. |
To ensure that the country is united, fair, safe, and prosperous, and to ensure that IE&D does not replace hard work, merit, and equality. |
|
Executive Order 13583 (August 18, 2011) |
Directed the federal government’s executive departments and agencies to develop and implement a more comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of their human resources strategies, including by developing a government-wide strategic plan focusing on workforce diversity, workplace inclusion, and agency accountability and leadership. |
Illegal IE&D policies violate federal civil rights laws, undermine national unity, and shut out individuals from pursuing opportunities. |
The decision to repeal Executive Order 11246 will likely have the most significant impact on the private sector, as it will have a direct effect on government contractors, which employ millions of people throughout the country. Note that while federal contractors will no longer have to maintain affirmative action programs for women and minorities, the obligation to maintain such programs for veterans and the disabled, including the preparation of annual plans, remains in place.
Executive Orders Issued by President Trump that Impact IE&D
|
Executive Order |
Notable Provisions |
|
Ending Illegal Discrimination and Restoring Merit-Based Opportunity (January 21, 2025) |
In addition to repealing a host of different executive orders that promote IE&D programs and policies, including Executive Order 11246 (requiring affirmative action in government contracting), the order dictates that action be taken to address IE&D programs and policies in the private sector. More specifically, the order instructs all agencies to “enforce our longstanding civil rights laws and to combat illegal private sector [IE&D] preferences, mandates, policies, programs, and activities.” The order also requires that the heads of all agencies “take all appropriate action” to ensure that the private sector does not maintain IE&D programs or policies. To that end, the order further requires that within 120 days, the U.S. attorney general submit a report 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 [IE&D].” The report shall also identify the “most egregious and discriminatory practitioners” and create a strategic enforcement plan of specific steps or measures to deter IE&D programs or principles. Likewise, each agency is required to 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 one billion dollars. |
|
Keeping Americans Safe in Aviation (January 21, 2025) |
The order explains that “[i]llegal and discriminatory [IE&D] hiring, including on the basis of race, sex, disability, or any other criteria other than the safety of airline passengers and overall job excellence, competency, and qualification, harms all Americans, who deserve to fly with confidence. It also penalizes hard-working Americans who want to serve in the FAA but are unable to do so, as they lack a requisite disability or skin color.” To effectuate this position, the order instructs the Secretary of Transportation and the Federal Aviation Administrator to terminate all IE&D programs or policies, including all “preferencing policies or practices.” |
|
Initial Recissions of Harmful Executive Orders and Actions (January 20, 2025) |
In addition to repealing Executive Order 14035, this order instructs the heads of each agency to “take immediate steps to end Federal implementation of unlawful and radical [IE&D] ideology.” |
|
Ending Radical and Wasteful Government DEI Programs and Preferencing (January 20, 2025) |
The order calls for the termination of all IE&D programs or policies in the federal government, and for the review and revision of all existing federal employment practices, union contracts, and training policies or programs. The order further requires that within 60 days, all IE&D offices and positions, initiatives, programs, and performance requirements for employees, contractors, or grantees, be terminated. In an apparent response to this order, the Office of Personnel Management issued a memorandum ordering all federal employees in IE&D roles to be placed on paid leave by the evening of Wednesday, January 22, 2025.2 The memorandum also requires offices focusing on IE&D to send “an agency-wide notice to employees […] asking employees if they know of any efforts to disguise these programs by using coded or imprecise language […].”3 As stated in the memo, the “failure to report this information within 10 days may result in adverse consequences.”4 Similarly, Acting Chair of the EEOC, Andrea R. Lucas, has indicated in a press release issued by the EEOC, that her “priorities will include rooting out unlawful DEI-motivated race and sex discrimination.” |
|
Reforming the Federal Hiring Process and Restoring Merit to Government Service (January 20, 2025) |
This order states, in pertinent part, that “[f]ederal hiring should not be based on impermissible factors, such as one’s commitment to illegal racial discrimination under the guise of ‘equity,’ or one’s commitment to the invested concept of ‘gender identity’ over sex.” The order goes on to require that within 120 days, a new federal hiring plan be developed that “prevents the hiring of individuals based on their race, sex, or religion.” |
While some of the language used in these executive orders may give employers pause, it is important to note that employers may maintain their commitments to inclusive, diverse, and equitable work environments through a host of initiatives and programs that do not violate anti-discrimination laws.
We recommend that both public and private institutions review their current programs and policies under privilege in light of these executive orders, and be on alert for any additional orders. Littler will continue to monitor future developments to keep readers apprised of any new orders or changes in existing policy.
See Footnotes
1 The reason for repeal is not specific to each individual EO repealed; rather, each EO includes a policy statement that provides an overview of the reasons for why that EO is being issued.
2 Charles Ezell, Initial Guidance Regarding DEIA Executive Orders, United States Office of Personnel Management, Jan. 21, 2025.
3 Id.
4 Id.
