Responding to Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”

We understand you may be receiving a surge of emails and inquiries in light of the recent Executive Order, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which rescinded Executive Order 11246. Some of these messages may include claims or implications that DEIA (Diversity, Equity, Inclusion, and Accessibility) initiatives or Affirmative Action practices are now illegal or that your company’s hiring practices may be in violation of Title VII.

Nondiscrimination Obligations Continue

First and foremost, we want to reaffirm that making employment decisions based on merit remains fully aligned with federal regulatory requirements. Title VII of the Civil Rights Act explicitly prohibits employment discrimination based on race, color, religion, sex, or national origin. The core focus of affirmative action obligations pursuant to Executive Order 11246, is nondiscrimination. Despite the rescission of Executive Order 11246, your nondiscrimination obligations continue.

Federal Regulations pursuant to Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment and Assistance Act (VEVRAA) continue to be actively enforced by OFCCP, confirmed by the agency in their January 23, 2025, email. Additionally, various laws, such as Title VII of the Civil Rights Act of 1964, The Equal Pay Act of 1963, and the Americans with Disabilities Act, prohibit discrimination. Contractors are still required to file EEO-1 and VETS-4212 reports and comply with all existing state affirmative action and EEO reporting requirements. Kairos provides and continuously expands upon our detailed analyses, reporting, and support, to assist with these and other nondiscrimination obligations.

Framework for Responding to Inquiries

To assist in addressing any concerns or accusations from inside or outside your organization, here are key points to communicate in your responses:

1. Merit-Based Selection Decisions:
   Clearly state that your company is committed to making hiring, promotion, and other employment decisions based solely on qualifications, experience, and the ability to perform the job.
2. Compliance with Title VII:
   Reaffirm your adherence to Title VII, which protects against discrimination, and clarify that no employment decisions are made based on protected characteristics under this law.
3. Commitment to Equal Opportunity:
   Highlight your ongoing dedication to fostering a workplace that values talent and ensures equal opportunity for all employees and candidates, consistent with federal laws and regulations.

To assist you with responding to inquiries, we have crafted a message that you can tailor to your specific situation: 

Thank you for your inquiry regarding our employment practices. Our company is, and always has been, firmly committed to making hiring, promotion, and other employment decisions based solely on an individual’s qualifications, experience, and ability to perform the job. We strictly comply with Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. At no point do we consider protected characteristics in any employment decision, as our processes are designed to ensure fairness, equity, and compliance with all applicable laws. We remain dedicated to fostering a workplace that values talent and ensures equal opportunity for all employees and candidates.

If you have any additional questions or concerns, please don’t hesitate to reach out.

If you need assistance in crafting responses to specific inquiries or would like to schedule a time to discuss these changes further, please don’t hesitate to reach out.

Potential Risks Associated With DEIA Programs

If your company has a DEIA program or Employee Resource Groups (ERGs) that are treated as part of or formally recognized and supported by your organization’s DEIA program, we strongly encourage you to continue reading—particularly if your DEIA program or ERGs provide recommendations or feedback on hiring, promotions, or workplace policies.

What the Executive Order Says and Does Not Say

It is critically important to note that the new Executive Order does not state that DEIA programs are illegal. The Executive Order specifies that DEIA programs “can violate the civil-rights laws of this Nation.” The use of the word “can” is a critical distinction, as it is vastly different from “does” or any implication that DEIA programs are inherently illegal. Nevertheless, the Executive Order conflates the terms “illegal” and “DEIA” in its subsequent points.

Additionally, the Executive Order states that it is not intended to prevent contractors from “engaging in First Amendment-protected speech.” Therefore, if your DEIA program complies with Title VII and other applicable federal laws, it cannot, by definition, be illegal.

Attestations, Investigations, and Whistle Blower Implications

The Executive Order states in Sec. 3. (b)(iv):

The head of each agency shall include in every contract or grant award:

(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and

(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal antidiscrimination laws.

Assuming your company’s DEI programs comply with Federal antidiscrimination laws, there should be no concern about attesting to or complying with these provisions.

Section 4 of the Executive Order also instructs the Attorney General, in coordination with each agency, develop an enforcement plan to “deter DEI programs or principles” that constitute “illegal discrimination or preferences.” This strategy explicitly includes identifying up to nine potential civil compliance investigations targeting publicly traded corporations, large non-profit organizations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments exceeding $1 billion.

Whether your organization is large or small, the implication is clear: companies with DEIA programs may be targeted by the federal government simply for implementing strategies to reach underrepresented groups, regardless of their full and complete compliance with federal law. Additionally, recent notices from the GSA and other government agencies include requests for award recipients to report instances of DEIA or similar ideologies to email addresses such as GSAtruth@gsa.gov and DEIAtruth@opm.gov.

Navigating the Landscape of DEIA

Kairos encourages your organization to exercise caution regarding your DEIA programs. Even if your program complies with federal laws and avoids illegal discrimination, it may still attract scrutiny from internal employees or external individuals and organizations.

We recommend that all employers carefully evaluate the following:

• How concepts like DEIA are defined within your organization.
• The operational framework and policies governing your DEIA programs.
• All phases of program execution, particularly where there is any perceived overlap between DEIA and employment decisions.

By doing so, you can reduce the likelihood of drawing criticism from those opposed to these programs while maintaining compliance with legal and ethical standards.

Disclaimer:

The information and advice provided in this publication is for informational purposes only and does not constitute legal advice. Any individual or organization should consult with a qualified professional before taking any action based on the abovementioned information. Professional advice tailored to your specific circumstances is recommended to ensure compliance and minimize risk.