On January 21, 2025, President Donald Trump issued Executive Order (EO) 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This EO is part of a larger campaign to discredit diversity, equity, and inclusion (DEI) efforts by painting them as illegal, harmful, and contradictory to merit-based admissions and hiring (Hsu, Reference Hsu2025; Yourish et al., Reference Yourish, Daniel, Datar, White and Gamio2025). Central to the present brief, EO 14173 eliminated EO 11246 while simultaneously endorsing compliance with long standing employment discrimination legislation (e.g., Title VII of the Civil Rights Act, 1964). As we outline, EO 11246 is often equated with affirmative action but is broader and overlaps with Title VII. In this policy brief, we provide necessary background on EO 11246 and discuss the potential impact of its reversal, considering previous state legislation and the current political context.
Executive Order 11246, Affirmative Action, and Title VII of the Civil Rights Act of 1964
EO 11246, “Equal Employment Opportunity,” was signed into law in 1965 by President Johnson. It required government employers and (sub)contractors with 50 or more employees who have contracts exceeding $50,000 to eliminate discrimination and “take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex or national origin” (Exec. Order No. 11246, 1965). EO 11246 can be seen as a companion to the Civil Rights Act (CRA) of 1964. Indeed, many standards for how discrimination is investigated have been identical across EO 11246 and Title VII (Graber & Carpenter, Reference Graber and Carpenter2025). Key differences, however, between the two statutes have resulted in EO 11246 being more controversial than the CRA of 1964.
Title VII of the CRA of 1964 makes it illegal to discriminate on the basis of sex, race, color, national origin, and religion with all subgroups within these protected classes receiving equal protection under the law. Enforcement of this law is reactive—it requires citizens to file complaints of discrimination with the Equal Employment Opportunity Commission (EEOC), a process that is time and resource intensive. For this reason, change following the CRA of 1964 progressed slowly as courts established relevant case law (Doverspike et al., Reference Doverspike, Taylor and Arthur2006).
EO 11246 had two primary components. First was an “affirmative action” directive (this was largely unique from Title VII). The directive required covered entities to not only eliminate discrimination but also proactively identify and address barriers to fair treatment, promote diversity, ensure equal opportunity for minorities and women, and monitor underutilization. These constituted “affirmative action plans.” Affirmative action plans included actions such as tracking and reporting demographic proportions in the organization (i.e., utilization), efforts to recruit a diverse applicant pool, and programs (e.g., training opportunities) meant to develop employees from underrepresented groups. Second, EO 11246 specified discrimination as illegal for federal (sub)contractors. Although EO 11246 defined discrimination very similarly to Title VII, its investigation and enforcement mechanisms were more proactive, providing the Office of Federal Contract Compliance (OFCCP) authority to investigate potential discrimination, seek voluntary compliance, and impose sanctions or penalties for noncompliance.
Confusion over what comprised the affirmative action component of EO 11246 abounds, in part due to the complexity and diversity of affirmative action policies (Doverspike et al., Reference Doverspike, Taylor and Arthur2006; Thompson & Morris, Reference Thompson and Morris2013). For example, affirmative action could range from a policy of targeted recruitment, where companies sought out and recruited minority applicants, to preferential treatment, where qualified members of a preferred group (racial minorities and women) were selected over other similarly qualified or equally qualified applicants (Doverspike et al., Reference Doverspike, Taylor and Arthur2006). Historically, preferential treatment has been determined to be legal only under limited scenarios such as under court order in cases of egregious discrimination (e.g., United Steelworkers v. Weber, 1979). When engaged in voluntarily rather than through a court order, preferential treatment has resulted in successful claims of reverse discrimination and deemed illegal under the CRA of 1964 and the 14th Amendment (e.g., Hopwood v. Texas, 1996; Wygant v. Jackson Board of Education, 1986).
In cases where preferential selection or treatment has applied, affirmative action plans have been subject to strict scrutiny by courts in efforts to minimize the potential violations of the 14th Amendment or the CRA (1964). To meet the requirements of strict scrutiny, the action must have evidence of compelling interest and be narrowly tailored. In short, this means that there should be a strong reason to use this more aggressive form of affirmative action (e.g., evidence of egregious discrimination in the organization), and the plan must be flexible, temporary, and not trammel the rights of the majority. For example, in Petit v. City of Chicago (2003), the 7th Circuit Court ruled that diversity in the police was a compelling interest, the plan was temporary, and race was treated as a plus factor (i.e., did not abide by a quota).
Cases of reverse discrimination (whether successful or not) are often highly publicized, likely contributing to the common misconception that legal affirmative action (and consequently EO 11246) equates to quotas or giving preferential treatment to underqualified or unqualified minority and female applicants at the expense of the majority (Kravitz et al., Reference Kravitz, Klineberg, Avery, Nguyen, Lund and Fu2000; Thompson & Morris, Reference Thompson and Morris2013). Opponents of affirmative action typically do not draw any distinction between numerical goals and targets often present in affirmative action plans versus preferential selection (where legality requires strict scrutiny) and strict quotas (which have always been illegal)Footnote 1 in part because the line can be fuzzy (Fryer & Loury, Reference Fryer and Loury2005). Indeed, this confusion may have caused organizations attempting to implement legal affirmative action to do so incorrectly.
To summarize, from its inception, EO 11246 has never endorsed the selection of unqualified women or minority applicants or the use of strict quotas, and the majority of affirmative action plans have not comprised preferential selection. These and similar claims have been echoed throughout the last 6 decades by critics of affirmative action. Proponents of affirmative action argue that increasing diversity serves the public interest, whereas critics of affirmative action contend that any consideration of race or demographic group status—such as restricting leadership training to a single demographic group—violates the principles of equal opportunity under Title VII and the 14th Amendment and that identity neutral methods should be used to eliminate barriers for disadvantaged groups. Such opinions have culminated in state referenda and legislation banning affirmative action for public institutions (see Table 1 for a summary), a supreme court opinion functionally eliminating affirmative action in higher education (Students for Fair Admissions v. Harvard, 2023) and, most recently, EO 14173.
State bans on affirmative action
Note. Washington rescinded ban in 2022.
Executive Order 14173 and implications of revoking EO 11246
Although there is overlap between what is required by Title VII and EO 11246 with respect to discrimination (Graber & Carpenter, Reference Graber and Carpenter2025), the rescission of EO 11246 via EO 14173 does not legalize discrimination on the bases of sex, race, color, national origin, and religion as EO 14173 does not overturn laws such as the CRA of 1964 or similar laws protecting employees based on age (Age Discrimination and Employment Act, 1967), disability status (Americans with Disabilities Act, 1990), and so forth. The rescission of EO 11246, however, does limit the federal government’s ability to proactively monitor discrimination and enforce equal opportunity in the public sector and promote better outcomes for disadvantaged groups through overseeing affirmative action plans.
There have been critiques of how the OFCCP has enforced EO 11246, including claims of nontransparent and unfair pursuit of discrimination allegations (e.g., Doyle et al., Reference Doyle, Wake, Barger, Childs, Marcuss and Navarro2023; U.S. Chamber of Commerce, 2017). On the other hand, doing away with EO 11246 limits the extent to which discrimination can be investigated and addressed given that legal remedies are time and resource intensive. Plaintiffs litigating their own cases are often woefully overmatched by potential defendant organizations.
Revoking EO 11246 should also be considered within the broader political and legal context. Actions by the Trump administration including terminating two EEOC commissioners and firing General Counsel Karla Gilbride, who oversees employment discrimination litigation, will likely negatively impact the EEOC’s ability to litigate at least some cases of discrimination, harassment, and retaliation (Legal Defense Fund, 2025; Smith, Reference Smith2025). The administration also released EO 14281 on April 23, 2025, titled “Restoring Equality of Opportunity and Meritocracy,” that seeks to eliminate disparate impact liability (Exec. Order No. 14281, 2025) and moves to dismiss cases that “rely on the theory of disparate-impact liability.” This challenges additional avenues through which plaintiffs can pursue discrimination cases through legislation (e.g., Title VII).
Below we outline several potential implications of revoking EO 11246 on organizations’ requirements to be fair and nondiscriminatory considering: (a) EO 11246’s coverage of affirmative action, (b) EO 11246’s allowance of proactive investigation and punishment of discrimination, and (c) this administration’s extension of logic that all DEI programs are discriminatory or problematic. More specifically, we consider the implications on fairness as defined in multiple ways: equality of outcomes and equal opportunity in merit-focused systems. We end by focusing on implications and recommendations for industrial-organizational (I-O) psychologists.
Implications for equality in outcomes
First, EO 14173 is likely to decrease pipeline diversity due to its elimination of affirmative action plans. Previous research examining the impacts of Proposition 209 (a ballot initiative that ended affirmative action for the state of California) and similar initiatives suggests that underrepresented minority (URM) student enrollment in elite schools and STEM fields declines following state bans on affirmative action (Hill, Reference Hill2017; Hinrichs, Reference Hinrichs2012; Metcalfe-Ball, Reference Metcalfe-Ball2013). Notably, declines are primarily seen in the most selective schools with URM student enrollment shifting to less selective schools (Bleemer, Reference Bleemer2020; Hinrichs, Reference Hinrichs2012; Howell, Reference Howell2010). There is also evidence that fewer URM students complete STEM degrees, with one study finding that STEM degree completion fell 19% 5 years after bans went into effect (Bleemer, Reference Bleemer2020). Garces (Reference Garces2013) analyzed graduate enrollment across several fields following affirmative action bans in California, Texas, Florida, and Washington. The results of this study suggest that bans resulted in a decline in URM graduate students in engineering, the natural sciences, the social sciences, and the humanities. As Garces (Reference Garces2013) points out, this decline exacerbates an already low representation for students of color in these fields. A decrease in pipeline diversity suggests a decline in qualified URM in many of our applicant pools, less representation in organizations, and less retention of talented minorities.
Second, rescission of EO 11246 may increase socioeconomic inequalities and decrease representation of women and minorities in certain occupations. Bleemer (Reference Bleemer2020) examined labor market outcomes for URM University of California applicants. Although there was not an effect on Proposition 209 on labor force participation, wages declined by an average of $1,800 per year. In a report commissioned by the Equal Justice Society, Lohrentz (Reference Lohrentz2015) found that California’s Proposition 209 resulted in $1 billion in lost revenue per year for minority and women-owned business enterprises. Likewise, the Discrimination Research Center examined the effects of Proposition 209 on minority business enterprises (MBEs) 10 years later, finding that only one-third of MBEs in the transportation construction industry in 1996 were in business in 2006, and there was a 50% reduction in the contracts for MBEs (Morris et al., Reference Morris, Thanasombat, Sumner, Pierre and Borja2006).
Implications for equality of opportunity in merit-based systems
Affirmative action proponents often fail to challenge assumptions of merit, leaving affirmative action (and EO 11246 more broadly) defenseless in the face of claims that affirmative action plans are antithetical to merit-based hiring or admissions (Crenshaw, Reference Crenshaw2007). However, research suggests that “merit-based” systems are often not actually merit based or at least not fully merit based, instead containing variance that is performance irrelevant (Outtz & Newman, Reference Outtz, Newman and Outtz2010) or otherwise unfairly advantaging certain groups. For example, hiring and promotion systems tend to advantage the group stereotypically associated with the job in question, even when that bias is unintended and not desired by the decision maker (i.e., candidates with identical resumes are advantaged when their name matches the group associated with the job; Adamovic & Leibbrandt, Reference Adamovic and Leibbrandt2023; Quillian et al., Reference Quillian, Pager, Hexel and Midtbøen2017; Riach & Rich, Reference Riach and Rich2002; Uhlmann & Cohen, Reference Uhlmann and Cohen2005). Preferential selection aims to counteract this bias by giving advantages to historically disadvantaged groups. Other affirmative action plans—such as wider recruitment efforts and targeted training programs—seek to expand opportunities for these groups. In contrast, broader DEI initiatives focus on mitigating bias in favor of traditionally advantaged groups to the greatest extent possible (e.g., ensuring each candidate gets an equal chance to answer the same job-relevant interview questions).Footnote 2 Given the bias often inherent in “merit-based” systems and the wide array of actions included in DEI programs, the present administration’s seeming aversion and efforts to eliminate any program or actions labeled as “diversity, equity, and inclusion” detracts from progress toward true merit-based hiring and admissions (Hsu, Reference Hsu2025; Yourish et al., Reference Yourish, Daniel, Datar, White and Gamio2025).
To elaborate, DEI efforts are often centered around procedures that seek to increase equal opportunity and fairness for all (e.g., standardizing selection procedures to mitigate the introduction of bias) (Minkin, Reference Minkin2023). Many DEI programs are not only legal but, depending on the actions included in them, are required for an organization to successfully defend itself against potential Title VII cases.Footnote 3 Although some organizations appear to be keeping DEI policies and practices, while ditching the DEI label (e.g., Green, Reference Green2024), other organizations may be hastily doing away with any DEI policies and practices altogether.
Implications for I-O psychologists and organizations
The implications we cover above have clear importance for the field of I-O psychology research and practice. It is important to keep in mind that legal pathways (including previously EO 11246 and currently the CRA of 1964) are only one approach to ensuring equal employment opportunity. Rescinding EO 11246 creates a potential enforcement vacuum by removing proactive discrimination auditing and overseeing of affirmative action plans by the OFCCP, making it less likely that organizations will invest effort to mitigate obstacles for underrepresented groups or monitor underutilization (Anders, Reference Anders2025). This vacuum, however, can be partially filled by I-O psychologists educating organizations on the importance of valid and fair HR systems and helping to ensure these systems align with the values espoused by our field. Below we outline some of the specific implications of EO 14173 for I-O psychology and provide recommendations for researchers and practitioners navigating the changing landscape of equal employment opportunity. These implications and recommendations are summarized in Table 2.
Implications and recommendations for I-O psychologists
One implication is that what constitutes “legal” practices and policies in this space has been blurred. EO 14173 makes several references to “illegal DEI programs” but fails to define what constitutes an illegal program (Chicago Women in Trades v. President Donald J. Trump et al., 2025). In response to ongoing ambiguity surrounding the definition of "illegal DEI programs," the EEOC and Department of Justice (DOJ) have issued supplementary guidance (U.S. EEOC & U.S. DOJ, 2025). The guidance reaffirms the broad protections afforded under Title VII, emphasizing that discrimination may occur against both majority and minority groups, and clarifying that there is no "business necessity" defense available for DEI initiatives. The guidance also notes that taking an employment action motivated—in whole or in part—by an applicant’s or employee’s protected characteristic should be considered illegal under Title VII. Despite additional guidance, the legal landscape is shifting, and the uncertainty may create a chilling effect on DEI programs more broadly. Those receiving contracts and other sources of funding from the federal government (including universities) may be unwilling to test the boundaries of what constitutes legal versus illegal DEI. Thus, how the revocation of EO 11246 impacts recruitment, selection, training and development, and DEI will rest in part on how organizations, universities, and other entities choose to interpret and respond. We encourage our practitioner colleagues to exercise care in interpreting these legal changes and refrain from prematurely abandoning all initiatives related to DEI and equal opportunity.
The clearest implication of EO 14173 is that preferential selection and other affirmative action programs that explicitly consider demographic group status should be avoided. Notably, preferential selection was always precarious for organizations, ran the risk of reverse discrimination lawsuits, and in most cases was illegal. Each organization should work with lawyers to determine the best course of action given their goals and identify ways to practice legal alternatives to affirmative action to achieve their goals.
I-O psychologists are well equipped to help organizations seeking ways to advance goals related to both merit and equal employment opportunity. In the absence of EO 11246, organizations can still apply best practices in job analysis, recruitment, selection, performance appraisal, and other HR systems. Indeed, many of the best practices that I-O psychologists have developed over the decades go beyond antidiscrimination to ensure that our HR systems are not only legal but also fair and valid. Examples of such best practices include conducting nonbiased job analyses to ensure job criteria are both necessary and inclusive (Strah & Rupp, Reference Strah and Rupp2022) and adding structure and accountability into our selection system to reduce bias (Campion et al., Reference Campion, Palmer and Campion1997; Koch et al., Reference Koch, D’Mello and Sackett2015). Other practices such as identity-neutral selection (Lacroux & Martin-Lacroux, Reference Lacroux and Martin-Lacroux2020) and pareto-optimization (De Corte et al., Reference De Corte, Lievens and Sackett2007; Reference De Corte, Sackett and Lievens2024) similarly do not involve preferential selection but may increase diversity in our organizations. Identity-neutral selection refers to anonymizing selection materials. For example, interview responses could be transcribed and candidate names removed from these transcripts. Although this solution may seem ideal, it has not been researched as extensively as others (Lacroux & Martin-Lacroux, Reference Lacroux and Martin-Lacroux2020), though some preliminary research suggests it may not provide as many barriers as feared (e.g., Witzany, Reference Witzany2024). It is also important to note, however, that identity-neutral selection will not increase diversity in our organization if the barriers are systemic rather than due to individual biases. That is, facially neutral policies or practices can still disadvantage certain applicant groups. For example, employee referral programs are facially neutral, but if this is the primary means of recruiting new applicants in an organization, potentially high performing applicants who differ from the current employees in a company are less likely to apply and be hired by that company. Pareto-optimization is the most direct way to optimize both validity and diversity in our selection by considering how different predictor or item weighting can maximize both desired outcomes simultaneously (De Corte et al., Reference De Corte, Lievens and Sackett2007). For example, an organization might choose a weighting scheme that maximizes diversity in selected candidates to the greatest extent possible without decreasing predicted validity. Pareto-optimization does not consider the demographics of individual job candidates. Instead, it allows an organization to consider how to combine predictors to maximize validity and diversity when applied to a new applicant pool (see Rupp et al., Reference Rupp, Song and Strah2020 for a more in-depth discussion of legal defensibility).
These practices are informed by goals surrounding validity and fairness. In other words, both goals can be accomplished. The existence of these best practices also underscores the importance of research related to fairness, adverse impact, and DEI. We encourage researchers to continue to investigate these important topics with a special focus on how organizations can continue to promote DEI while also remaining legally compliant. Finally, we urge both practitioners and academics in our field to remain committed to ensuring that hiring practices are fair, valid, and legal. I-O psychologists can play a critical role in this changing legal landscape by ensuring that employment practices promote equal opportunity for all individuals. In doing so, we believe the fundamental principles of both I-O psychology and equal opportunity will continue to persist and evolve in response to the emerging challenges they face.
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