January 20, 2025, will certainly go down in history as a major policy pivot-point, and possibly as the high-water mark for presidential executive action. Among the many Executive Orders (EOs) President Trump issued on his first day in office was one revoking his immediate predecessor’s day-one EO instituting diversity, equity, and inclusion (DEI) goals and also President Lyndon B. Johnson’s 1965 affirmative action mandate, EO 11246.  

DEI must DIE. On President Biden’s first day in office, January 20, 2021, he issued EO 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” Federal departments and agencies were directed to “redress inequities” through a systematic approach to reaching allegedly disfavored minorities (very broadly defined) and underserved communities. While couched in the language of justice and fairness, DEI rapidly became associated with identity politics and preferences, and with speech-stifling programs focused on theories of systemic racism. (In a preemptive stroke, President Trump also immediately suspended all federal employees working in DEI programs, with pay, to ensure that activities and initiatives undertaken to advance these policies would cease immediately.)

Adieu, Affirmative Action. Like President Biden’s EO on DEI, President Johnson’s EO requiring federal departments, agencies, and contractors to engage in affirmative action to ensure an inclusive workforce was draped in the language of equal opportunity but rapidly became associated with race- and sex- and, by amendment, disability-conscious quotas. The Office of Federal Contract Compliance Programs (OFCCP) was established within the U.S. Department of Labor to enforce EO 11246, and it wielded enforcement authority through regulations, investigations, lawsuits, and fines. Between 2014 and 2024, USDOL collected over $260 million from employers for OFCCP violations. Employers who received federal contracts valued at over $10,000 were compelled to complete onerous annual Affirmative Action Plans (AAPs) identifying their employees by race and gender, and those plans were subject to statistical analysis to justify their demographics. With the stroke of a pen, President Trump put OFCCP out of business.

In truth, the writing has been on the wall for quite some time. The Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard presaged the end of differential treatment based on race by finding that race-based affirmative action in college admissions violated the U.S. Constitution. As Chief Justice Roberts had observed in a 2007 opinion, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It was only a matter of time before the Supreme Court’s decision on college admissions would be applied more broadly.

What does this mean for employers? This is the end of an era. Employers who have been subject to the AAP requirements can safely shelve those documents. No more letters, goals, binomial distributions. Any ongoing prosecutions for OFCCP violations are likely to be suspended, and ultimately dismissed. Employers can cease to maintain applicant flow logs documenting the race and sex of would-be workers to demonstrate a fair correlation between those who apply and those who are hired (a tricky proposition, at best, since so many Americans can claim the right to check more than one box on the self-identification forms).

Does this mean that from now on employers can run roughshod over workers and applicants, engaging in blatant discrimination? Certainly not. Discrimination on the basis of protected factors—like race, color, age, sex, and disability—and protected conduct—like whistleblowing—remains contrary to many other laws. The Equal Employment Opportunity Commission can and will prosecute violators as well as private employers. But OFCCP is over.

There’s going to be some prime office space opening up at 200 Constitution Avenue NW.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].