Update: On February 21, a federal judge granted a preliminary injunction blocking key provisions of Trump’s executive order. Specifically, it prevents agencies from terminating “equity-related” grants and contracts; requiring contractors and grant recipients to certify that they do not operate DEI programs; and encouraging private companies to end DEI programs by identifying potential civil compliance investigations. While prohibiting enforcement action, the injunction does not block the attorney general from investigating and writing a report about potential steps to deter DEI programs.
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After waging war against diversity, equity and inclusion (DEI) policies on the campaign trail, President Donald Trump signed a series of executive orders in his first days in office that overturned decades of diversity-related employment laws.
On the first day of his presidency, Trump signed an executive order, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” that ordered the Office of Management and Budgeting to work with the attorney general and the Office of Personnel Management to eliminate any DEI programs and DEI-related roles in the federal government. Employees in those roles were placed on paid administrative leave the next day.
A day later, Trump signed another executive order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” While the first order mentioned only President Joe Biden’s DEI policies, the second order specifically revoked five diversity-related presidential memos and executive orders from previous decades, including President Lyndon B. Johnson’s Equal Employment Opportunity executive order.
What Is the Equal Employment Opportunity Executive Order?
Executive Order 11246, titled “Equal Employment Opportunity,” was signed by President Lyndon B. Johnson in 1965. It prohibited federal contractors from discriminating against applicants on the basis of race, creed, color or national origin, and it required contractors to “take affirmative action” to ensure applicants are hired — and employees are treated — without regard to those traits.
The order has been modified over the years. In 1967, Johnson added “sex” to the list of protected classes. In 2014 President Barack Obama added “sexual orientation” and “gender identity.” Obama’s executive order amending EO 1126 was also revoked under Trump’s executive order.
According to the Department of Labor, Johnson’s executive order was a “massive safeguard” in protecting workers employed by federal contractors, who make up one-fifth of the U.S. workforce. Signed one year after the Civil Rights Act of 1964 — a landmark law prohibiting discrimination on the basis of race, color, religion, sex or national origin — order 1126 is one of many executive orders and laws that reinforced the nation’s commitment to workplace equality. To this day, Title VII of the Civil Rights Act remains the cornerstone of U.S. employment law, prohibiting discrimination in hiring, wages, promotions — nearly every aspect of employment.
Johnson’s executive order is not to be confused with the Equal Employment Opportunity Act of 1972, which amended Title VII to give enforcement authority to the Equal Employment Opportunity Commission and to extend the scope of Title VII to educational institutions and all levels of government. The Equal Employment Opportunity Act of 1972 and the Civil Rights Act of 1964 were acts of Congress, meaning they cannot be revoked through a president’s executive order.
Why Did Trump Revoke the Equal Employment Opportunity Order?
In its executive order revoking the Equal Employment Opportunity order, the Trump administration argues contemporary DEI programs have institutionalized “dangerous, demeaning, and immoral race- and sex-based preferences” that violate the “text and spirit” of longstanding civil rights laws, like the Civil Rights Act of 1964. It also claims these programs undermine national unity and the importance of merit “in favor of an unlawful, corrosive and pernicious identity-based spoils system.”
“Hardworking Americans who deserve a shot at the American Dream should not be stigmatized, demeaned, or shut out of opportunities because of their race or sex,” the order states.
What Does Trump’s Executive Order Say?
Trump’s executive order calls for all government agencies to eliminate any “discriminatory or illegal” preferences, policies or other requirements. It specifically orders the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to stop:
- Promoting diversity
- Holding federal contractors and subcontractors responsible for taking “affirmative action” in ensuring equitable hiring practices
- Allowing or encouraging federal contractors and subcontractors to engage in “workforce balancing” based on race, color, sex, sexual preference, religion or national origin
Additionally, the order requires federal agencies to adopt language in their contracts that prohibits the other party — such as a contractor or grant recipient — from operating a DEI program. It also directs the Office of Management and Budgeting to eliminate all references to DEI principles from federal acquisitions, contracts, grants and financial assistance procedures.
The executive order will affect the private sector as well, requiring agencies to prepare a report recommending ways to discourage DEI practices in private companies. In the report, each agency is expected to identify:
- The “most egregious and discriminatory DEI practitioners” in each sector
- Up to nine potential “civil compliance investigations” of large companies, nonprofit organizations, foundations, medical associations and higher education institutions
- Other strategies to “encourage the private sector to end illegal DEI discrimination”
- Litigation that would be appropriate for federal lawsuits or other interventions
- Other potential regulatory action
It also orders the attorney general and Department of Education to issue guidance to all educational institutions receiving federal funds to comply with a Supreme Court decision prohibiting affirmative action policies.
How Could Trump’s Executive Order Affect Hiring?
Trump’s executive order will likely prompt many companies to reduce (or completely eliminate) their DEI initiatives to avoid any legal scrutiny, which could affect their hiring practices going forward — a trend that already began after the 2023 Supreme Court decision barring race-conscious college admissions policies. While workplace DEI programs were not affected by the ruling, some companies have changed their diversity policies amid a wave of anti-DEI legislation, lawsuits and complaints to the EEOC.
Walmart, Target, Meta and Amazon are just a few of the big names that have scaled back their DEI efforts over the last several months. And companies like Disney and Google have started altering (or outright scrapping) their DEI programs to avoid being singled out under Trump’s new executive order.
These executive orders are already facing legal challenges, though, so it remains to be seen whether they will be upheld in court.
In the meantime, Jonathan Segal, a managing partner at law firm Duane Morris, advises employers to eliminate any unlawful hiring practices that incorporate quotas, preferences or “set asides” to achieve diversity goals. He also suggests looking at DEI training materials to ensure employees are not referred to as “privileged” based on their race, gender or other protected characteristics, and that the training is even-handed in portraying which types of people discriminate or exhibit unconscious bias.
Under Trump’s executive order, federal government contractors with at least 50 employees and contracts of at least $50,000 will no longer be obligated to develop affirmative action programs, perform audits of its placement and pay practices or assess its outreach and recruitment programs for underrepresented job applicants.
The order does not eliminate Section 503 of the Rehabilitation Act or the Vietnam Era Veterans Readjustment Assistance Act, which require affirmative action measures for individuals with disabilities and protected veterans, respectively. But according to an alert on the Duane Morris website, these requirements may not be enforced due to the order’s language restricting OFCCP’s oversight of affirmative action policies.
Everett Kelley, president of the American Federation of Government Employees, disputed the premise of Trump’s allegations, saying the federal government already hires and promotes employees “exclusively on the basis of merit.”
“Ultimately, these attacks on DEIA are just a smokescreen for firing civil servants, undermining the apolitical civil service, and turning the federal government into an army of yes-men loyal only to the president, not the Constitution,” said Kelley, using an acronym for diversity, equity, inclusion and accessibility programs.
Judy Conti, government affairs director of the National Employment Law Project, said the executive order takes away the tools needed to “prevent discrimination and root it out at its core.”
“This is not a return to so-called ‘meritocracy,’” Conti said in a statement. “Rather, it’s an attempted return to the days when people of color, women, and other marginalized people lacked the tools to ensure that they were evaluated on their merits.”
