Why did affirmative action go away? – Mary T. O’Sullivan

By Mary T. O’Sulllivan, MSOL, contributing writer

“Discrimination still exists in America…[The Court’s] decision does not change that.”  – former President Joseph R. Biden, Jr.

On the heels of the powerful Civil Rights movement of the 1950s and 1960s, President John F. Kennedy signed Executive Order (EO) 10925,  ensuring “affirmative action” for any organization doing business with the federal government. This executive order provided that federal contractors and subcontractors “take affirmative action to ensure that applicants are employed, and employees are treated [fairly] during employment, without regard to their race, creed, color, or national origin”  After Kennedy’s death in 1963, President Lyndon Johnson took affirmative action a step further and signed EO 11246. This EO expanded Kennedy’s to specifically include the word hiring of individuals, clarifying that recruitment, staffing, and talent acquisition were be conducted fairly.

These executive orders stayed in place until recently, changing in 2023 with the Supreme Court’s ruling in the Students for Fair Admissions decision. The Court ruled that “race-based admissions violate the Equal Protection Clause of the Fourteenth Amendment. Going further, EO 14170, signed in January 2025, redefined federal hiring practices including federal contractors and subcontractors, eliminating any consideration of race, gender, and other demographic factors in recruiting, hiring, or promotion based on the Lyndon Johnson EO.

In this way, the practices of diversity, equity, and inclusion (DEI) were rendered ineffective and even “illegal” when put into action within the federal government and any organization working with it. Reading further into the EO, private enterprises are also encouraged to eliminate their DEI initiatives, and fearing retaliation under EO 14173,  many large corporations have stopped tapping into a more diverse talent pool, even eliminating entire DEI departments and staff, in particular if doing any business with the government.

These actions can be confusing to HR departments as the language in the EO and the implied meaning from the Supreme Court decision in Students for Fair Admission in no way abrogate any law enacted by Congress. This means that private organizations are under no obligation to change any of their DE&I policies or practices. Many have taken advantage of the confusion in these recent actions to save money and reduce their DE&I departments and eliminate their existing DE&I training. They most likely think that they “don’t want to tease the tiger”, as the EO contains some potentially threatening language. As court challenges to these recent EOs are litigated, many of the stipulations of the recent executive action are on hold. Also, according to JD Supra, a legal database, these EOs “do not (and without action from Congress, cannot) dismantle existing federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.”

Interestingly, JD Supra explains that other federal conditions must be met by all federal contractors and subcontractors. They state “federal contractors and subcontractors are still required to continue to comply with Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), which prohibit employment discrimination against people with disabilities and certain groups of protected veterans by federal contractors and require federal contractors to take affirmative action in the employment of individuals with disabilities and certain protected veterans. Additionally, state and local antidiscrimination laws remain in place.”

So, while the language of the EOs sounds quite intimidating, these EOs are a lot like the “man behind the curtain” in the Wizard of Oz. Lots of bark, but until Congress acts to change these anti-discrimination laws and policies, no bite.

The problem arises when many organizations and even every day Americans can conflate the highly publicized EOs with reality, and it seems, that is the intention. The confusing flurry of ceremoniously rolled out EOs don’t mention that only Congress can make laws, and that the federal and state laws already in place still protect employees against discrimination of race, gender, national origin, pregnancy, disabilities, and veteran status.

HR departments need to make a copy of the Civil Rights Act of 1964 and its amendments and post it in their offices. Regardless of what flurry, ceremony, fanfare, or bluster accompanies the roll outs for all to see, with cameras clicking and microphones bobbing, the rights of all Americans are still protected by Congress under the Constitution.

JD Supra advises HR departments to carefully review their current policies in order to avoid scrutiny from the federal government. This includes removing any language concerning internal DE&I efforts, training or policies. They recommend undertaking a risk assessment of policies, and decide which ones are least likely to draw attention from interested parties. In fact, any overt mention of DE&I practices, or procedures should be renamed or eliminated if covered elsewhere.

American’s rights are learned in junior and senior high school. In New York State, questions about the Constitution appear on the 11th grade Regents Exam. It’s hard to believe how, with an educated public,  the flashy pomp and circumstance of executive orders and phony threats to private businesses, universities, and other organizations have effectively cowed many Americans. Behind every grabbing headline, fact checking reveals big chinks in the armor. How often have the words “hoax” and “fake” been used recently? With a closer examination of the actual truth, as taught in high school history class, the real “hoax” is easily uncovered. As said by the sage, L. Frank Baum in the Wizard of Oz (published in 1900), “pay no attention to that man behind the curtain.”

“HR leaders should focus on embedding inclusive practices into core business operations rather than treating them as separate DEI initiatives.” – Emtrain, an HR Training Company

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Read all Mary’s columns here: https://rinewstoday.com/mary-t-osullivan-msol-pcc-shrm-scp/

Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.

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