Affirmative Action and DEI After EO 141713 Ending Illegal Discrimination and Restoring Merit-Based Opportunity

Executive Order 141713, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, has left many unsure as to what you can, cannot, should, or should not do. You are not alone! There are many unanswered questions, so we do not and could not claim to have all the answers, but we do have some thoughts and suggestions to consider at this stage.

How Did We Get Here?

On January 21, 2025, President Trump signed EO 141713, which revoked several other Executive Orders (EOs), tasked contracting agencies with policing contractors’ compliance with DEI (diversity, equity, inclusion) initiatives, and encouraged the private sector to “end illegal DEI discrimination and preferences. “Of greatest significance to our federal government contractor clients, this EO:

• Revoked EO 11246 Equal Employment Opportunity. EO 11246 has been in place since 1965 and required covered federal contractors to practice affirmative action, develop written plans, and implement compliant programs directed towards equal opportunities for women and minorities.
• Instructed the Office of Federal Contract Compliance Programs (OFCCP) to “immediately cease (A) Promoting “diversity;” (B) Holding Federal contractors and subcontractors responsible for taking “affirmative action;” and (C) Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
• Revoked EO 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors, which included an amendment of EO 11246 substituting “sex, sexual orientation, gender identity, or national origin” for “sex, or national origin.”
• Compelled contracting agencies to require contractors and grant recipients to certify that “it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

What Is Required?

While affirmative action and illegal DEI programs are under fire, these laws remain firmly in place and enforceable:

• Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, national origin, color and sex, including gender, gender identity, pregnancy and sexual orientation. The protections of Title VII apply equally to all applicants and workers as related to hiring, promotions, compensation and other employment decisions.
• The Uniform Guidelines of Employee Selection Procedures (UGESP) were created to assist employers in complying with Title VII and provide a legal basis when using tests and other selection procedures, ensuring decisions are based on merit. These requirements include the monitoring of selection differences by race, ethnicity and sex.
• The Equal Pay Act of 1963 requires employers to provide equal pay for men and women. This requirement includes all forms of compensation and benefits: base pay, incentive comp, stock options, insurance, vacation, etc.
• In the context of this article, The Americans with Disabilities Act (ADA) protects qualified applicants and employees with disabilities from discrimination in employment activities (i.e., hiring, firing, training, compensation).
• The Age Discrimination in Employment Act of 1967 protects workers over the age of 40 from discrimination.

And for our covered federal contractors, yes, you are still required to comply with affirmative action and other obligations as set forth in Section 503 of the Rehabilitation Act (which covers individuals with disabilities) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (which covers protected vets).

What is the Status and Result of EO 141713 as of Today (March 14, 2025)?

Emphasis here is on “today.” As of today, March 14, 2025, the decision of the U.S. Court of Appeals for the Fourth Circuit stands, granting the government’s request to stay the preliminary injunction of a Maryland federal judge, which blocked portions of the EO. What does that mean? At this moment, EO 141713 is enforceable, and the appellate court is considering if this and other DEI-related EOs signed by President Trump are lawful. As the old saying goes, “It’s not over ’til the fat lady sings,” and she has not sung yet!

There has been a flurry of activity since the signing of EO 141713, to include the following:

• OFCCP quickly issued letters to those under audit informing them that the compliance evaluation related to EO 11246 was closed and that the Section 503 and VEVRAA portions of the evaluation are “being held in abeyance until further notice.”
• OFCCP’s acting director, Michael Schloss, outlined a plan to reduce the OFCCP workforce from 479 employees to 50 employees, including eliminating labor economists and statisticians. The plan involves a reduction in field offices from 55 to 4, which is clearly a huge decrease.
• You may have noticed that the OFCCP website is, in essence, non-existent at this time. What previously provided a wealth of information and directives now only contains a few tidbits related to EO 141713 and a statement letting us know they are working to update the website with new guidance. When will that happen? No one knows.
• Some contractors have received guidance to review policies, handbooks, etc., and ensure that all references to diversity, equity, and inclusion have been removed.
• On March 4, 2025, the Department of Defense issued Class Deviation 2025-O0003, Restoring Merit-Based Opportunity in Federal Contracts. This action clarifies that contracting agencies are not to implement or enforce EO 11246 and instructs them to stop incorporating in new contracts and to modify contracts with greater than six months remaining in the period of performance to omit or exclude the following FAR clauses:
  • FAR 52.222-21, Prohibition of Segregated Facilities;
  • FAR 52.222-22, Previous Contracts and Compliance Reports;
  • FAR 52.222-23, Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity for Construction;
  • FAR 52.222-24, Pre-award On-Site Equal Opportunity Compliance Evaluation;
  • FAR 52.222-25, Affirmative Action Compliance;
  • FAR 52.222-26, Equal Opportunity;
  • FAR 52.222-27, Affirmative Action Compliance Requirements for Construction; and
  • FAR 52.222-29, Notification of Visa Denial
• On March 19, 2025, the EEOC and Justice Department issued a joint warning “against unlawful DEI-Related discrimination,” reminding employers that “Under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” Along with this announcement came a joint technical assistance document, What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission, and an EEOC technical assistance document, What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission.

What is Not Allowed?

As has been true for quite some time, “illegal discrimination” is not allowed, of course. This is true for all employment activities: hiring, terminations, promotions, transfers, pay, training opportunities, etc. Now is a good time for a refresher for all employers, including government contractors, on the civil rights laws referenced above. EO 141713 reminds us that “workforce balancing based on race, color, sex, sexual preference, religion, or national origin” is not allowed and that we “shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation’s civil rights laws.” Establishing hiring quotas, giving preferential treatment, or consideration as a “plus factor” to a particular protected group or characteristic is strictly forbidden.

What Do We Do Now?

Carefully consider when to roll back any affirmative action policies or practices related to EO 11246 that would run afoul of EO 141713. Per EO 141713, contractors may continue to “comply with the regulatory scheme” of EO 11246 until April 21, 2025. The timing and extent of this “rollback” will vary based on each contractor’s unique circumstances. Some may have already received contract modifications to exclude the applicable FAR clauses, while others have not. Some may find it beneficial to prepare for but not execute any changes while awaiting final word from the courts. Others may find the information maintained and analyzed as a result of EO 11246 to be helpful in other ways and, therefore, want to continue these efforts in a compliant manner. We do encourage the following action items, with the timing of implementation dependent upon your specific situation:

• Review your notices, posters, and policies, and be prepared to issue revised versions that exclude any language related to affirmative action for anyone other than protected veterans (per VEVRAA) and those with disabilities (per Section 503). Don’t forget your subcontractor agreements, flow-down clauses, and purchase orders.
• Continue with your obligations under Section 503 and VEVRAA.
• Identify the records and processes which are in place for EO 11246. This will likely be a challenge as many of these requirements are intertwined with those of Section 503 and VEVRAA. Of those identified, determine what is required to comply with other laws. If not required, is it helpful to your initiatives, or could it potentially support and justify hiring, compensation, and other employment-related decisions if ever questioned or challenged? If you continue with these practices, you must ensure that you do so within a framework that is not illegal.

Review your DEI initiatives to ensure they are not motivated by an employee’s race, sex, or another protected characteristic. If your policies or practices involve any of the following, take immediate action to change course:

• Establishing or working toward quotas.
• Limiting membership to work groups, affinity groups, etc. (i.e., only women are invited or allowed to participate).
• Training or education that may be considered to create a hostile work environment (i.e., unconscious bias).
• Excluding certain groups from opportunities, such as mentor programs or training.

While navigating these changes, we encourage you to continue casting the net wide with your recruitment efforts while ensuring you can justify and support your merit-based hiring and employment decisions. It is important to stay abreast of the ever-changing and quickly evolving landscape. We are here to support you and will continue to provide you with pertinent information as developments continue.