With a single penstroke, just one day after taking office, the leader of one branch of the U.S. government singlehandedly ended 60 years of government infrastructure, private industry reporting requirements, and untold numbers of programs associated with affirmative action (AA) and diversity, equity and inclusion initiatives (DEI), leaving many of those impacted dumbfounded, and unknown thousands of individuals unemployed.  The new president was able to achieve this because AA and federal DEI mandates have always been built on one of the shakiest foundations in our federal legal system – an executive order.  Having survived so many decades of changes in presidential administrations, most people (including me, in full disclosure), assumed they had become an accepted piece of the fabric of federal laws, subject to tweaking at times but with their continued existence never in question.  Until that all changed.

This is the first in a series of articles that collectively outline how we got here, what has been eliminated, what new mandates have been issued, what has survived intact, and what employers can do going forward if diversity remains an important value for them.  We start with how we got to this point.

Executive Orders Are a Weak Foundation

We learn in grade school that our federal government was designed with a system of checks and balances:

• Congress makes the laws – and it requires the endorsement of two houses of the legislature, one with representation apportioned based on population and one with representation apportioned equally among the states;
• the President can approve or veto the laws (subject to the possibility of a congressional override) and the executive branch enforces them; and
• the Courts interpret the laws and determine whether they comply with the Constitution.

Under this system, overturning a law requires a new act of Congress or a court order; the president lacks that independent authority.  The president even lacks independent authority to overturn regulations issued by the executive branch in most cases without following a legally-mandated review process.

Separate from that system, however, going back to the days of George Washington, the president has consistently been recognized to have the authority, as head of the executive branch, to issue orders that generally direct the actions of federal government officials and agencies.  The checks-and-balances system still applies, in that presidential overreaching may be altered either by congressional action (in the form of new legislation overturning or modifying an executive order) or by a court decision (finding the executive order to exceed presidential powers or violate existing laws or the Constitution).

Unlike other laws or regulations, however, executive orders also can be revoked or revised by the current president or any successor.  The person elected to the office of President of the United States has the sole discretionary authority to determine which executive orders should have continuing effect.  Under our system of government, that gives executive orders a pretty weak foundation for longevity.

Executive Order 11246 Defied the Odds

Initially issued by President Lyndon Johnson in the midst of desegregation and the civil rights movement of the 1960s, Executive Order 11246 was intended to provide tools for the government to identify potentially discriminatory workplaces, encourage remediation of past discrimination, and track the progress of those efforts.  Congress had passed Title VII a year earlier, prohibiting discrimination in employment based on race, color, national origin, religion, and sex, but President Johnson was concerned that it would take too long to remediate the effects of historic discrimination in the workplace and society at large by relying on Title VII alone, and he felt some affirmative actions were necessary.

Executive Order 11246 therefore prohibited discrimination in federal employment based on race, creed, color, or national origin (sex was added a few years later), and provided that organizations that wanted to do business with the federal government (federal government contractors), would be required as a condition of their contract to state a commitment to equal employment opportunity and demonstrate they were taking affirmative action to put that commitment into practice.

Subsequently, President Obama expanded Executive Order 11246 to include sexual orientation and gender identity as protected characteristics, and to add a provision mandating pay transparency.  With the exception of an amendment in 2002 that religiously affiliated contractors could in certain cases give a preference to individuals of a particular religion, no president reduced the scope of the law prior to now.

And Now It’s Gone

On January 21, 2025, a new Trump executive order revoked Executive Order 11246, including the Obama-era expansion of that Executive Order, and granted federal contractors 90 days for it to take effect.   On January 24, 2025, Acting Secretary of Labor Vince Micone directed that all investigative and enforcement activity under the rescinded Executive Order 11246 and the regulations promulgated under it cease and desist.  An entire infrastructure is rapidly crumbling.

By Tracey I. Levy