US: The End of Affirmative Action? Understanding the Impact of Recent Executive Orders on Employee Rights

Lucinda Hobden, Senior Legal Analyst

Lucinda is experienced in employment, higher education, and discrimination litigation. She is currently training for the Bar of England & Wales to build her career in employment and equality law.

In early 2025, President Donald Trump issued a wave of executive orders that will dramatically alter affirmative action and diversity efforts in the workplace. This article explores the impact of the executive order (“EO”) signed on January 21, 2025, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

What is Affirmative Action?

Affirmative action in employment refers to policies, programs and procedures that actively expand opportunities for individuals from groups that have been underrepresented or disadvantaged historically, such as racial minorities and women.

In practice, this often means setting diversity goals, expanding outreach, or giving a limited preference in hiring or promotions to qualified candidates from those groups to ensure equal opportunity. The core idea is to proactively provide equal opportunity, remedying the effects of past discrimination and persistent social inequalities.

Previous Approaches to Affirmative Action

Historically, affirmative action in employment has been implemented through government policies and voluntary employer programs. Executive Order 11246, issued by President Lyndon B. Johnson in 1965, required federal government contractors to “take affirmative action” to ensure equal employment opportunity.

Outside government contracting, many private employers also voluntarily adopted diversity and inclusion programs (“DEI”) to foster a more representative workforce. However, no law strictly compelled private employers to prefer certain groups in hiring.

A New “Merit-Only” Mandate in Federal Hiring

The EO entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” is wide-ranging. It eliminates the federal requirement for government contractors to maintain affirmative action programs, revoking Executive Order 11246. In plain terms, the federal government no longer mandates contractors to have hiring goals or specific outreach for minorities and women. Contractors were given 90 days to wind down any such affirmative action plans.

Beyond removing requirements, the EO also prohibits contractors and federally grant-funded entities from engaging in what it calls “workforce balancing” or DEI programs that involve race- or sex-based preferences. It states that contractors “shall not consider race, color, sex, sexual preference, religion, or national origin” in any way that would violate federal civil rights laws.

Private employers are not directly bound by the order, but the EO directs federal agencies to develop enforcement strategies targeting what it calls “illegal” DEI preferences in the private sector. This includes recommending compliance investigations and litigation against large corporations, foundations, professional associations, and universities with substantial resources.

In short, the federal stance is that hiring should be strictly “merit-based”, without any form of preference, a sharp departure from prior decades where measured affirmative action was encouraged or even required in certain settings. Whether a genuinely merit-based system can operate in a society still marked by structural inequalities remains debatable, but the federal government has stepped back from affirmative action regardless.

Implications for Workplace Diversity and Employee Rights

This change means that employers who do business with the federal government, such as contractors and grant recipients, have scaled back or eliminated formal affirmative action plans for minorities and women.

While private employers that do not receive federal funding are not directly affected by the order, the EO’s enforcement-focused language is likely to have a chilling effect on more ambitious DEI efforts across the private sector.

For employees and job seekers, this may mean fewer obvious diversity hiring initiatives at those companies. However, employers’ legal duty not to discriminate under state and federal laws, including Title VII, remains unchanged. For example, you cannot be denied a job or promotion because of your race, sex, or other protected characteristic. That is disparate treatment and remains illegal.

In a rapidly changing legal environment, where “meritocracy” is a buzzword but equality of opportunity still hangs in the balance, seeking legal advice may be prudent when facing workplace bias or navigating new employer policies.

Please note that the above does not constitute legal advice.