Executive Summary
For nearly 60 years, Executive Order 11246 required federal contractors to take proactive action to advance equal employment opportunity as a condition of doing business with the federal government. While Title VII of the Civil Rights Act of 1964 prohibits discrimination, E.O. 11246 demanded federal contractors do more to demonstrate compliance with anti-discrimination requirements.42 U.S.C. § 2000e-2(a); Bostock v. Clayton County, 590 U.S. 644, 649 (2020). The order’s requirements to collect and analyze data and take proactive action to identify and address potential barriers to equal employment opportunity, along with the Department of Labor’s authority to review contractor data and policies, deepened accountability across the federal contractor community.
E.O. 11246, enforced by the Department of Labor through the Office of Federal Contract Compliance Programs (OFCCP), helped ensure that the hundreds of billions of taxpayer dollars spent on federal contracts each year were not used to support discrimination. And as research demonstrates, the order’s requirements helped break down barriers to employment for underrepresented workers.Fidan Ana Kurtulus, The Impact of Affirmative Action on the Employment of Minorities and Women over Three Decades: 1973-2003, W.E. Upjohn Institute for Employment Research, Working Paper No. 150221 (2015), https://research.upjohn.org/cgi/viewcontent.cgi?article=1238&context=up_workingpapers; Fidan Ana Kurtulus, Affirmative Action and the Occupational Advancements of Minorities and Women During 1973-2003, 51 Indus. Rel. 213, 242 (2012), https://people.umass.edu/fidan/Kurtulus_IR_AA_Occ_April_2012.pdf. Given that covered contractors employed an estimated 20 percent of the overall workforce,U.S. Department of Labor, Office of Federal Contract Compliance Programs, FY 2025 Congressional Budget Justification, at 10 (2025), https://www.dol.gov/sites/dolgov/files/general/budget/2025/CBJ-2025-V2-10.pdf. the order’s impacts were far-reaching.
Despite the order’s success, on January 21, 2025, President Donald Trump issued Executive Order 14173 to revoke E.O. 11246.Executive Order 14173 of January 21, 2025, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633 (Jan. 31, 2025).
While a subsequent President can—and should—issue a new executive order that restores and strengthens protections under E.O. 11246, a new order would also be vulnerable to rescission.
Congress must restore and strengthen requirements originally established under E.O. 11246, as well as the Labor Department’s authority to effectively enforce these requirements. While the order was an important step forward in helping to combat discrimination, additional and modified statutory requirements and enforcement tools can better help workers and ensure that taxpayer dollars do not support discriminatory employment practices.
This brief discusses and makes legislative recommendations across four areas:
Non-discrimination Requirements for Federal Contractors
As amended, E.O. 11246 mirrored Title VII’s prohibitions on employment discrimination based on race, color, religion, sex, sexual orientation, gender identity and national origin. However, E.O. 11246 included additional anti-discrimination protections related to pay. Legislation should codify these protections and include provisions that protect workers against various forms of discrimination, including disparate impact discrimination and intersectional discrimination, and additional provisions that protect against pay discrimination.
Requirements to Prevent and Remedy Discrimination
E.O. 11246 held federal contractors to a higher standard by requiring them to regularly review their employment practices for potential discrimination and make good-faith efforts to remedy problems they identified. Legislation should use this underlying framework to require contractors to collect and analyze workforce data and take action to prevent and remedy discrimination.
Applicability and Exemption
E.O. 11246 applied to contracts over a certain threshold amount and to federally assisted construction contractors, helping to ensure that federal resources were aimed at contractors employing significant numbers of workers and protections were attached to federal spending on construction projects. But a harmful religious exemption allowed certain contractors to discriminate. Legislation should include a meaningful contract threshold and cover federally assisted construction contractors but abandon the previous religious exemption.
Compliance and Enforcement
Despite the order’s success, limited resources and tools left OFCCP and workers without full enforcement capacity. Rebuilding the agency will require Congress to significantly increase funding and staffing capacity for the agency. While the agency had jurisdiction over about 25,000 firms with 120,000 contractor establishments, in early 2025, the agency only had about 300 investigators. Legislation should codify previous compliance tools, including compliance assistance, and include provisions that provide the agency with more enforcement tools, including subpoena power, additional remedies for workers and broader investigation authority.
Read the full issue brief: Legislative Recommendations for Anti-discrimination and Equal Employment Opportunity Requirements in Federal Contracting:
