Affirmative-action contracting order rescinded

On 21 January 2025 President Donald J. Trump signed Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”¹ Section 3(b)(i) revokes “Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)” — which as originally signed by President Lyndon B. Johnson covered race, creed, color and national origin, and which by 2025 (as amended by EO 11375 of 13 October 1967 adding “sex” and EO 13672 of 21 July 2014 adding “sexual orientation” and “gender identity”) covered the expanded list — and provides that “For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.”¹²³⁴ Section 3(b)(ii) directs the Office of Federal Contract Compliance Programs 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.”¹ EO 14173 is the contractor-facing component of a Day 1 + Day 2 package whose internal-government component is EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”), with same-day companions EO 14148 (“Initial Rescissions of Harmful Executive Orders and Actions”) and EO 14168 (“Defending Women From Gender Ideology Extremism …”).⁵⁶⁷ On 24 January 2025 Acting Secretary of Labor Vincent Micone issued Secretary’s Order 03-2025 directing OFCCP to cease enforcement of pending cases, conciliation agreements and investigations under EO 11246 and holding Section 503 and VEVRAA components in abeyance.⁸

1. Statutory affirmative-action obligations for individuals with disabilities (Section 503 of the Rehabilitation Act, 29 U.S.C. § 793, implementing regulation at 41 C.F.R. Part 60-741) and for protected veterans (VEVRAA, 38 U.S.C. § 4212, implementing regulation at 41 C.F.R. Part 60-300) are statutory and remain in force; the written affirmative-action programs required at 41 C.F.R. § 60-1.40 for EO 11246-covered contractors are no longer enforceable as a contracting condition.⁹¹⁰¹¹

2. Section 3(b)(iv) directs each agency to include in every federal contract or grant a term making compliance with federal anti- discrimination laws “material” to the government’s payment decisions for purposes of the False Claims Act, 31 U.S.C. § 3729, and a representation that the counterparty “does not operate any programs promoting DEI that violate any applicable Federal anti- discrimination laws.”¹¹²

3. FAR clauses 52.222-21 through 52.222-27 and 52.222-29, and FAR Subpart 22.8, derive their authority from EO 11246. Removal from solicitations and contract templates requires FAR Council rulemaking under 41 U.S.C. § 1303(a)(1); class-deviation memoranda are the operative interim vehicle.¹³¹⁴ Statutory anti-discrimination duties under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 1981; and the ADA, 42 U.S.C. § 12112(a), are unaffected.¹⁵¹⁶