Regulatory Alert: President Trump Issues Executive Order on DEI and Affirmative Action Programs
January 23, 2025
On Tuesday evening, President Trump issued an executive order aimed at ending diversity, equity, and inclusion (DEI) policies that have been implemented by federal contractors and grant recipients and are in violation of federal civil rights laws. The order directs each agency, including the Federal Aviation Administration (FAA), to require federal contractors and grant recipients, as a condition of receiving a contract or grant, to certify that they do not have a DEI program in violation of any federal anti-discrimination laws. This requirement is in addition to other directives aimed at ending “affirmative action” practices engaged in by federal contractors.
Additional details on these two major directives are provided below. However, we would emphasize that these orders leave many questions unanswered at this stage. The White House and FAA will need to provide guidance on how the order will be implemented, including, for example, under what circumstances a DEI program violates federal anti-discrimination laws. There is also the possibility of a legal challenge, which could delay any near-term action. We will be closely monitoring implementation of the order.
Federal Contractor and Grant Recipient DEI Programs. First, the order directs each agency, including FAA, to ensure that “every contract or grant award” includes a term requiring each contractual counterparty or grant recipient to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” (Emphasis added.) We do not believe this term requires an airport to eliminate its DEI program under any circumstances. Rather, the requirement will only apply when such program violates “federal anti-discrimination laws.” The critical question will be under what circumstances these programs violate such laws, which the order does not address. FAA will need to explain how this provision will be interpreted and applied. We will be requesting clarity from FAA and monitoring any efforts to incorporate such provisions into any grant agreements.
Federal Contractor Affirmative Action Programs. Second, the order directs the Office of Federal Contract Compliance Programs (OFCCP), which is an office within the Department of Labor, to “immediately cease” (a) promoting “diversity,” (b) holding federal contractors and subcontractors responsible for taking “affirmative action,” and (c) allowing or encouraging contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. This is in conjunction with a separate provision rescinding a 1965 executive order requiring federal contractors to implement affirmative action programs. The OFCCP maintains and enforces regulatory requirements that ensure federal contractors and subcontractors comply with federal anti-discrimination laws when making employment decisions.
While the OFCCP does not directly regulate airports, the office’s regulations apply to airports through their federal grant assurances. In addition, the requirements apply to airport contractors that carry out projects funded with federal financial assistance. Along with the other directives we have seen in President Trump’s recent executive actions, this will be another issue to track, as it is unclear how it will affect airports until further guidance is developed. In addition, the order may be subject to a legal challenge before it is implemented.
On Tuesday evening, President Trump issued an executive order aimed at ending diversity, equity, and inclusion (DEI) policies that have been implemented by federal contractors and grant recipients and are in violation of federal civil rights laws. The order directs each agency, including the Federal Aviation Administration (FAA), to require federal contractors and grant recipients, as a condition of receiving a contract or grant, to certify that they do not have a DEI program in violation of any federal anti-discrimination laws. This requirement is in addition to other directives aimed at ending “affirmative action” practices engaged in by federal contractors.
Additional details on these two major directives are provided below. However, we would emphasize that these orders leave many questions unanswered at this stage. The White House and FAA will need to provide guidance on how the order will be implemented, including, for example, under what circumstances a DEI program violates federal anti-discrimination laws. There is also the possibility of a legal challenge, which could delay any near-term action. We will be closely monitoring implementation of the order.
Federal Contractor and Grant Recipient DEI Programs. First, the order directs each agency, including FAA, to ensure that “every contract or grant award” includes a term requiring each contractual counterparty or grant recipient to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” (Emphasis added.) We do not believe this term requires an airport to eliminate its DEI program under any circumstances. Rather, the requirement will only apply when such program violates “federal anti-discrimination laws.” The critical question will be under what circumstances these programs violate such laws, which the order does not address. FAA will need to explain how this provision will be interpreted and applied. We will be requesting clarity from FAA and monitoring any efforts to incorporate such provisions into any grant agreements.
Federal Contractor Affirmative Action Programs. Second, the order directs the Office of Federal Contract Compliance Programs (OFCCP), which is an office within the Department of Labor, to “immediately cease” (a) promoting “diversity,” (b) holding federal contractors and subcontractors responsible for taking “affirmative action,” and (c) allowing or encouraging contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. This is in conjunction with a separate provision rescinding a 1965 executive order requiring federal contractors to implement affirmative action programs. The OFCCP maintains and enforces regulatory requirements that ensure federal contractors and subcontractors comply with federal anti-discrimination laws when making employment decisions.
While the OFCCP does not directly regulate airports, the office’s regulations apply to airports through their federal grant assurances. In addition, the requirements apply to airport contractors that carry out projects funded with federal financial assistance. Along with the other directives we have seen in President Trump’s recent executive actions, this will be another issue to track, as it is unclear how it will affect airports until further guidance is developed. In addition, the order may be subject to a legal challenge before it is implemented.
