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WASHINGTON D.C. – Today, America First Legal (AFL) submitted public comments to the Office of Federal Contract Compliance Programs (OFCCP) in support of the proposed rule “Rescission of Executive Order 11246 Implementing Regulations.” This proposed rule would finally dismantle decades of federal regulations stemming from President Lyndon B. Johnson’s Executive Order 11246, which institutionalized race- and sex-based discrimination in federal contractor hiring through discriminatory “affirmative action” requirements.
President Johnson’s Executive Order 11246 infamously enshrined discrimination, authorizing decades of federal hiring decisions based on skin color and gender rather than merit. Since its inception, federal contractors have been ordered to categorize employees by race and sex, track their demographic data, and adjust hiring decisions to hit “representation” targets. The Department of Labor’s proposed rule would end this discriminatory system once and for all.
AFL’s comments emphasize that the proposed rule aligns with President Trump’s Executive Order 14173, “Ending Illegal Discrimination And Restoring Merit-Based Opportunity,” which revoked Executive Order 11246. By rescinding these outdated regulations, the proposed rule will eliminate discriminatory, unconstitutional, and unlawful requirements thrust upon federal contractors to engage in race- and sex-conscious decision-making. The current federal regulations, for example, require contractors to develop “affirmative action programs” (AAPs) that prioritize group representation over individual qualifications.
AFL’s comment traces the history of executive actions aimed at preventing discrimination by the federal government.
In 1941, President Franklin D. Roosevelt issued Executive Order 8802, which obligated any defense contractor “not to discriminate against any worker because of race, creed, color, or national origin.” In 1943, President Roosevelt issued Executive Order 9346, expanding nondiscrimination requirements to all government contracts. President Dwight D. Eisenhower continued this tradition in 1953 with Executive Order 10479, reinforcing nondiscrimination standards and creating a Government Contract Committee.
Then, in 1961, President John F. Kennedy’s Executive Order 10925 required contractors to take “affirmative action” to prevent discrimination.
However, President Lyndon Johnson’s Executive Order 11246 marked a stark deviation from previous executive orders by requiring contractors to affirmatively take race-conscious steps to combat discrimination. This led to OFCCP rules mandating affirmative action programs that are “action-oriented” to address “underutilization” of women and minorities, incentivizing race- and sex-based hiring decisions in federal contracting.
President Trump’s Executive Order 14173 directs agencies to rescind their discriminatory regulations, and the proposed rule is a necessary step to purge race- and sex-based considerations from federal contracting.
AFL’s comment also highlighted that the U.S. Constitution’s Equal Protection Clause prohibits government-imposed discrimination based on race or sex, as affirmed by the Supreme Court in cases like Students for Fair Admissions v. President and Fellows of Harvard College (SFFA), which declared that eliminating racial discrimination means eliminating all of it. The proposed rule will eliminate discriminatory race- and sex-conscious AAPs, data collection on employees’ race, gender, and ethnicity, and efforts to correct “underutilization.”
“For decades, Executive Order 11246 has obstructed merit-based federal hiring, forcing generations of Americans to be judged by their race and sex instead of the quality of their services. This discriminatory mandate is a disgrace, and it must be rescinded,” said Daniel Epstein, Vice President of America First Legal.
Read AFL’s comment here.
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