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Executive Order 11246

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Executive Order 11246
Executive Order 11246
Seal of the President of the United States
President Johnson
President Johnson in Oval Office
TypeExecutive order
Executive Order number11246
Signed byLyndon B. Johnson on September 24, 1965
Federal Register details
Federal Register document number65-10340
Publication date28 September 1965
Summary
Established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors

Executive Order 11246 was an executive order of the Article II branch of the U.S. Federal government, in place from 1965 to 2025, specifying non-discriminatory practices and affirmative action in federal government hiring and employment.

The executive action was signed by President Lyndon B. Johnson on September 24, 1965, establishing requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. It prohibited "federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin."[1] It also required contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." The phrase affirmative action had appeared previously in Executive Order 10925 in 1961.[needs update]

The executive order was rescinded by President Donald Trump on January 21, 2025.[2][3]

Background

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Executive Order 11246 (EO 11246) followed up Executive Order 10479, signed by President Dwight D. Eisenhower on August 13, 1953, which established the anti-discrimination Committee on Government Contracts, which was itself based on a similar Executive Order 8802, issued by President Franklin D. Roosevelt in 1941. Eisenhower's executive order has been amended and updated by at least six executive orders.[4] It differed significantly from the requirements of the Civil Rights Act of 1964, which required organizations only to document their practices once there was a preliminary finding of wrongdoing. The executive order required the businesses that were covered to maintain and furnish documentation of hiring and employment practices upon request.[5]

The executive order[which?] also required contractors with 51 or more employees and contracts of $50,000 or more to implement affirmative action plans to increase the participation of minorities and women in the workplace if a workforce analysis demonstrates their under-representation, meaning that there are fewer minorities and women than would be expected given the numbers of minorities and women qualified to hold the positions available. Federal regulations require affirmative action plans to include an equal opportunity policy statement, an analysis of the current work force, identification of under-represented areas, the establishment of reasonable, flexible goals and timetables for increasing employment opportunities, specific action-oriented programs to address problem areas, support for community action programs, and the establishment of an internal audit and reporting system.[citation needed]

It assigned the responsibility for enforcing parts of the non-discrimination in contracts with private industry to the Department of Labor. Detailed regulations for compliance with the Order were not issued until 1969, when the Nixon administration made affirmative action part of its civil rights strategy.[6]

In 1971, a three-judge panel of the United States Court of Appeals for the Third Circuit affirmed the validity of Executive Order 11246 in a case brought by the Contractors Association of Eastern Pennsylvania in January 1970 that challenged the Nixon administration's implementation, known as the Philadelphia Plan. In April 1971, the court rejected numerous challenges to the order, including claims that it was beyond the president's constitutional authority, was inconsistent with Titles VI and VII of the Civil Rights Act of 1964, and was inconsistent with the National Labor Relations Act.[7][8][9] The Supreme Court of the United States declined to hear the case, Contractors Association of Eastern Pennsylvania v. Secretary of Labor, in October.[10]

In 1986, the Reagan administration was opposed to the affirmative action requirements of the executive order and contemplated modifying it to prohibit employers from using "quotas, goals, or other numerical objectives, or any scheme[,] device, or technique that discriminates against, or grants any preference to, any person on the basis of race, color, religion, sex, or national origin." The contemplated change was never issued because it faced bipartisan opposition in Congress that threatened to counteract it by enacting Executive Order 11246 into law by a veto-proof majority.[11]

Amendments

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On October 13, 1967 Executive Order 11375 amended Executive Order 11246 adding the category "sex" to the anti-discrimination provisions.

On July 21, 2014, Executive Order 13672 amended Executive Order 11246 and Executive Order 11478 to change "sexual orientation" to "sexual orientation, gender identity".[12]

Revocation

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On January 21, 2025, the Trump administration rescinded Executive Order 11246, originally signed by President Lyndon B. Johnson in 1965. The order had prohibited federal contractors from engaging in employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin. It also mandated affirmative action programs to promote equal employment opportunities.[13]

The Trump administration characterized the rescission as a necessary step to eliminate "radical and wasteful" diversity, equity, and inclusion (DEI) programs within the federal government and its contractors. It argued that the requirements under the executive order fostered "preferential treatment" and deviated from merit-based hiring practices.[14]

Effects

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The Trump administration emphasized its commitment to merit-based hiring practices as part of its rationale for rescinding Executive Order 11246. Officials argued that employment decisions should prioritize an individual's qualifications, skills, and job performance, rather than demographic factors or affirmative action requirements. An executive order was issued alongside this initiative to mandate reforms in the federal hiring process, focusing on competency-based assessments and eliminating considerations tied to diversity, equity, and inclusion (DEI) programs.[15]

Critics argued that this approach could result in reduced workplace diversity and fail to address systemic discrimination, while proponents contended that it ensured fairness and efficiency by focusing solely on individual merit.[16]

The rescission of Executive Order 11246 removed the obligation for federal contractors to establish affirmative action programs aimed at increasing workplace diversity. Civil rights advocates criticized the decision, arguing that it could undermine decades of progress in promoting equal employment opportunities and addressing systemic discrimination.[17]

Despite the revocation, protections against employment discrimination remain in place under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin in workplaces with 15 or more employees, including federal contractors. These provisions serve as the primary legal framework to combat employment discrimination in the United States.[18]

While the Civil Rights Act provides robust anti-discrimination protections, critics of the rescission argue that the lack of affirmative action requirements could result in fewer proactive measures to address inequities in hiring and workplace diversity.[19] Proponents of the rescission contend that it ensures hiring and promotions are based on merit alone, without consideration of demographic characteristics.[20]

The long-term effects of the decision remain to be seen, as legal scholars and policymakers debate the balance between enforcing anti-discrimination laws and implementing affirmative action programs to ensure equity in federal contracting.

See also

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References

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  1. ^ U.S. Department of Labor: "The Executive Order 11246" Archived 2011-09-04 at the Wayback Machine, accessed February 4, 2012
  2. ^ ENDING ILLEGAL DISCRIMINATION AND RESTORING MERIT-BASED OPPORTUNITY, whitehouse.gov, January 21, 2025.
  3. ^ Clegg, Roger (2025-01-22). "Trump Rescinds Executive Order 11,246". National Review. Retrieved 2025-01-22.
  4. ^ National Archives: "Executive Orders Disposition Tables, Dwight D. Eisenhower - 1953", accessed February 4, 2012
  5. ^ Faye J. Crosby and Cheryl VanDeVeer, eds., Sex, Race, & Merit: Debating Affirmative Action in Education and Employment (University of Michigan, 2000), 220, available online, accessed February 4, 2012
  6. ^ Faye Crosby, Margaret S. Stockdale, and S. Ann Ropp, eds., Sex Discrimination in the Workplace: Multidisciplinary Perspectives (Blackwell Publishing, 2007), 303. On the Nixon administration's strategy with respect to affirmative action see William T. Martin Riches, The Civil Rights Movement: Struggle and Resistance (Palgrave Macmillan, 2004), 106ff. available online, accessed February 5, 2012
  7. ^ Anderson, Terry H. (2004). The Pursuit of Fairness: A History of Affirmative Action. Oxford University Press. pp. 126–7.
  8. ^ Janson, Donald (April 24, 1971). "Minority Hiring Upheld by Court" (PDF). New York Times. Retrieved February 9, 2014.
  9. ^ Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3rd Cir.), cert. denied, 404 U.S. 854 (1971). From Google Scholar. Retrieved on February 8, 2014.
  10. ^ Golland, David Hamilton (2011). Constructing Affirmative Action: The Struggle for Equal Employment Opportunity. University Press of Kentucky. ISBN 978-0813139647.
  11. ^ Nicholas Laham, The Reagan Presidency and the Politics of Race: In Pursuit of Colorblind Justice and Limited Government (Praeger, 1998), 87ff., available online, accessed February 5, 2012
  12. ^ "Executive Order -- Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity". whitehouse.gov. Office of the Press Secretary. July 21, 2014. Retrieved July 21, 2014 – via National Archives.
  13. ^ "President Lyndon B. Johnson signs Executive Order 11246". History.com. Retrieved January 22, 2025.
  14. ^ "Trump ends DEI programs, rescinds Executive Order 11246". Associated Press. January 20, 2025. Retrieved January 22, 2025.
  15. ^ "Trump reforms federal hiring process to prioritize merit". White House. January 20, 2025. Retrieved January 23, 2025.
  16. ^ "Trump's rollback of diversity programs sparks backlash". Reuters. January 23, 2025. Retrieved January 23, 2025.
  17. ^ "Trump orders closure of federal diversity offices, rescinds key executive order". The Guardian. January 22, 2025. Retrieved January 23, 2025.
  18. ^ "Title VII of the Civil Rights Act of 1964". Equal Employment Opportunity Commission. Retrieved January 22, 2025.
  19. ^ "Trump's rollback of diversity programs sparks backlash". Reuters. January 23, 2025. Retrieved January 23, 2025.
  20. ^ "Trump ends DEI programs, promotes merit-based hiring". New York Post. January 20, 2025. Retrieved January 23, 2025.
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