Federal Contracting Is the Next DEI Target Companies are required to meet strict hiring ‘goals’ that would be illegal anywhere else. By Michael Toth
Critics of diversity, equity and inclusion policies scored an important victory with last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, and a symbolic one with Claudine Gay’s resignation as Harvard’s president. But while some universities and businesses have pivoted from DEI to get in line with the high court’s ruling, Washington’s diversity-industrial complex marches on. It’s time for the federal government to play by the same antidiscrimination rules private companies have to follow.
Federal affirmative-action programs originated in the Nixon administration. In 1969 Labor Secretary George Shultz launched the Philadelphia Plan, which required companies bidding for federal construction projects in that city to commit to minority hiring goals. Within a year of announcing the plan, the administration extended it to cover all federal agencies. Fifty-five years later, those rules are still in place.
Federal regulations require prime contractors or subcontractors “with 50 or more employees and a contract of $50,000 or more” to submit “a written affirmative action program” for each of their locations. The rules dictate that a contractor’s workforce should “reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects.” Employing less than 80% of the local share of “any race, sex, or ethnic group” is categorized as an “adverse impact.” Failure to comply with these federal diversity mandates could mean the cancellation of existing contracts, and violators could be barred from doing future business with the federal government. It’s safest to hire by the numbers.
Since the Nixon administration, the federal government has successfully argued that Executive Order 11246, which President Lyndon Johnson signed in 1965, gives it authority to use race-based affirmative action in awarding contracts. The order requires contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race.” In 1971, a federal appeals court upheld the Philadelphia Plan on the grounds that the executive order releases the executive branch from the “general prohibition against discrimination” found in the Civil Rights Act.
Putting aside whether that court got it right in 1971, the federal government’s race-based contracting rules can be undone through the same process through which they were promulgated. It takes two steps. First, the next president should amend the order and remove the basis for federal government regulations that push contractors to pursue diversity hires.
The updated order should quote President John F. Kennedy, who first inserted the “affirmative action” requirement into a 1961 executive order but didn’t intend the mandate to lead to racial preferences or quotas, which he opposed. “We are too mixed, this society of ours,” Kennedy said at a 1963 press conference, “to begin to divide ourselves on the basis of race or color.”
Second, the president should instruct the labor secretary to comb through existing rules issued under the order and rescind any that push racial quotas. The demands for written affirmative-action plans should be scrapped. So should the federal contracting rules that circumvent equal-opportunity requirements through work-arounds such as the Philadelphia Plan’s disingenuous quota-goal distinction. As Chief Justice John Roberts put it in Fair Admissions: “What cannot be done directly cannot be done indirectly. . . . The prohibition against racial discrimination is leveled at the thing, not the name.”
DEI foes are hungry for their next fight. They should look no further than the federal government’s affirmative-action programs. They might change for the better the way federal contractors do business.
Comments are closed.
