Frequently Asked Questions

What is EO 11246? 

EO 11246, issued by President Johnson in 1965, prohibited federal contractors and subcontractors from discriminating against employees and applicants based on their race, color, religion, sex, or national origin. It also required federal contractors to take affirmative action to employ and advance in employment qualified women and minorities. EO 11246 required covered federal contractors and subcontractors to develop affirmative action plans (AAPs) if they had at least 50 employees and more than $50,000 in contracts. 

Why did President Trump rescind EO 11246?

On January 21, 2025, President Trump signed an executive order revoking EO 11246. The new executive order is titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” replaces EO 11246.

How does the rescission affect federal contractors? 

The January 21 EO removes affirmative action requirements for federal contractors to complete a written plan for women and minorities. The President’s directive does allow federal contractors to continue complying with Executive Order 11246 for a period of 90 days, Section 503 and VEVRAA affirmative action plans are still in effect and Contractors should still comply with these requirements.

Are federal contractors required to comply with the new EO immediately? 

The changes will officially take effect on April 21, 2025, providing federal contractors with a 90-day window to end their compliance with EO 11246 and adjust their practices and policies. Additionally, all federal contractors will be required to certify that they “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” in all contracts and grant awards with federal agencies.

How should contractors prepare to certify?

According to the EO, Contractors receiving federal funds are required to be in compliance with all applicable Federal anti-discrimination laws and will be material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code. The law also requires Contractors or recipients to certify that it does not operate any programs promoting "illegal" DEI that violate Federal anti-discrimination laws.

Organizations intending to do business with the federal government should proactively audit their practices prior to bid submissions. 

What is the difference between anti-discrimination and affirmative action? 

In summary, anti-discrimination refers to laws that prohibit employers from practices that treat employees unfairly based on characteristics such as race, color, sex, age, or religion.

Affirmative action required federal contractors to demonstrate proactive steps to ensure equal employment opportunities for historically underrepresented and disadvantaged groups when it came to employment actions.

How does Title VII of the Civil Rights Act relate to this change? 

Title VII prohibits employment discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information. While affirmative action mandates have been rescinded, the new Ending Illegal Discrimination and Restoring Merit-Based Opportunity directs organizations to ensure compliance Title VII.

What are the civil rights implications of rescinding EO 11246?

It’s critical to note that the EO does not change the law relating to employment discrimination. With that said, the rescission should not reduce efforts by contractors or private employers, to implement employment practices that do not adversely impact one group over another. Failing to monitor practices can potentially create civil rights violations, and put employers at risk for complaints.

What specific steps should federal contractors take in response to this change?

While the full impact of the rescission is still evolving, employers should seek expert and legal guidance. An expert can help with transition plans, processes and analysis, and legal counsel can help to ensure plans are lawful. You can also consider the following actions to ensure compliance with the new regulation, including:

1. Subscribe to OutSolve's newsletter to remain updated on new developments.  
2. Review DEI initiatives: Engage an expert to assess DEI programs to identify elements that may violate the new directive. Keep in mind, this should be a methodical effort so that changes do not inadvertently result in discriminatory actions or Title VII violations
3. Merit-based System: Confer with key stakeholders to decide whether implementing a merit-based system aligns with your corporate objectives.
4. Update Employment Policies: Ensure that all employment practices, such as hiring, promotions, and pay practices align with anti-discrimination laws and merit-based opportunities.
5. Remove DEI references: Eliminate references to DEI initiatives from both internal and external communications, such as contracts, employee handbooks, internal and external websites, and training materials.
6. Reassess DEI related roles: Review and redefine roles, such as diversity officers and teams, to focus more broadly on overall employment compliance rather than DEI-specific objectives.
7. Provide training: HR and legal teams must understand the new requirements and be equipped to handle questions related to the changes. HR can then train management and employees accordingly. Training should be done as soon as possible in order to avoid misunderstandings and confusion about what this change means.

Are there any implications for private employers who are not government contractors?

President Trump’s EO also has implications for private employers who are not federal contractors. The EO “encourages” private employers to end “illegal” DEI programs and preferences. Private employers will need to review their policies and programs to ensure compliance while taking precautions to prevent Title VII violations.

What should federal contractors do with their current AAPs now that EO 11246 has been rescinded?

Federal contractors don’t need to immediately terminate their AAPs. There is a 90-day window and additional guidance may be forthcoming during the 90 days. Also, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) AAP requirements remain.

Some states maintain their own affirmative action or DEI requirements. Contractors operating in multiple jurisdictions should monitor state-level policies to avoid conflicts or non-compliance.

Can federal contractors use the results of their current AAPs to inform their future hiring and diversity initiatives? What precautions should be taken?

Federal contractors have 90 days before the EO takes effect, so they can use their AAP information during that time frame. More guidance on questions like this and what will happen after the  90-day period, is expected.

Contractors need to ensure that every stage of the employment lifecycle aligns with federal anti-discrimination laws. 

Can we replace affirmative action or DEI plans with anti-discrimination plans?

Federal contractors can shift their focus to anti-discrimination plans instead of AAPs. The key is that any new plan must comply with all applicable civil rights laws. Contractors can still take steps to ensure fair treatment without specific diversity targets.

Should federal contractors still conduct workforce availability and utilization analyses?

As part of the rescission, contractors are not required to conduct these analyses, but they can do so voluntarily as part of their overall diversity and inclusion efforts and to ensure compliance under Title VII. If employers do so, they need to ensure they are in compliance with the new EO and other nondiscrimination laws. More guidance on this is expected to be forthcoming.

Can companies still set diversity goals without violating anti-discrimination laws?

Employers can still set diversity goals as long as they’re not discriminatory or quota-based. The setting of goals should not be a requirement, but rather part of a voluntary diversity and inclusion strategy.

How should recruiting efforts change moving forward?

Recruiting efforts can shift away from the specific requirements of EO 11246, but employers still need to prohibit discrimination and make sure that job opportunities are accessible to all qualified candidates, regardless of their background or personal characteristics.

What compliance risks should companies consider if they continue affirmative action efforts voluntarily?

Companies who continue with their affirmative action efforts voluntarily need to make sure that their policies and practices do not violate anti-discrimination laws, even if done so inadvertently. More guidance on this is expected.

As mentioned earlier, some states maintain their own affirmative action or DEI requirements. Contractors operating in multiple jurisdictions should monitor state-level policies to avoid conflicts or non-compliance.

Should companies still maintain documentation of their past affirmative action efforts?

Companies should maintain affirmative action documentation per their company’s records retention schedule. It’s prudent to retain records of past affirmative action efforts for compliance purposes as it supports their efforts to promote fairness and equal opportunity in the workplace.

How does the rescission of EO 11246 affect federal contractors bidding for new contracts?

Federal contractors now Since federal contractors are no longer required to submit affirmative action plans, the rescission may help reduce the complexity of bidding for new contracts. With that said, contractors will still need to comply with other non-discrimination and equal opportunity requirements as part of the bidding process.

How should companies communicate changes in their affirmative action policies to employees?

As with any change in policy or law, communication is key. Companies should clearly explain the changes to employees, while reiterating that discrimination is still unlawful and the company remains fully committed to fair employment practices. It’s recommended that HR and Legal departments get trained on this, as well as managers and employees.

Which laws should companies continue to comply with, even after the rescission of EO 11246??

All companies, including federal contractors, are still required to continue complying with the following laws:

• EEO (Equal Employment Opportunity) laws
• Title VII of the Civil Rights Act of 1964
• Section 503 (of the Rehabilitation Act)
• VEVRAA (Vietnam Era Veterans' Readjustment Assistance Act)
• ADA (Americans with Disabilities Act)
• ADAAA (Americans with Disabilities Act Amendments Act)
• ADEA (Age Discrimination in Employment Act)
• EPA (Equal Pay Act)
• PDA (Pregnancy Discrimination Act)
• GINA (Genetic Information Nondiscrimination Act)