Executive Order 11246

Executive Order 11246
Yoichi Okamoto · Public domain · source
Name	Executive Order 11246
Signed by	President Lyndon B. Johnson
Date signed	September 24, 1965
Purpose	Prohibit employment discrimination by federal contractors; affirmative action requirements
Related legislation	Civil Rights Act of 1964; Rehabilitation Act of 1973; Age Discrimination in Employment Act of 1967
Agencies	Office of Federal Contract Compliance Programs; Department of Labor

Executive Order 11246 Executive Order 11246, issued in 1965, established federal contractor obligations to prohibit employment discrimination and to take affirmative action to increase workplace diversity among protected classes. The order linked federal procurement practices with civil rights objectives and expanded administrative authority for enforcement through executive agencies. It has influenced subsequent legislation, administrative rules, judicial decisions, and public policy debates involving President Lyndon B. Johnson, Department of Labor, Civil Rights Act of 1964, affirmative action, and federal procurement.

Background and Purpose

The order emerged against the backdrop of the Civil Rights Movement, the legislative aftermath of the Civil Rights Act of 1964, and initiatives by the Johnson administration to translate statutory prohibitions into executive oversight. Influences included earlier presidential actions such as Executive Order 8802 under Franklin D. Roosevelt and Executive Order 9980 under Harry S. Truman, as well as policy discussions involving figures like Walter Reuther, Roy Wilkins, and advisors within the Great Society program. The purpose was to condition federal contracting on contractors’ commitments to equal employment opportunity, address de facto segregation documented by groups including the Equal Employment Opportunity Commission and labor unions such as the AFL-CIO, and to operationalize affirmative action in procurement guided by the Office of Federal Contract Compliance Programs.

Provisions and Requirements

Key provisions required covered contractors and subcontractors to maintain nondiscrimination clauses, develop affirmative action plans, and submit periodic reporting. The order invoked affirmative obligations for hiring, promotion, and training across categories protected under the Civil Rights Act of 1964 Title VII framework and later interpretations involving race, color, religion, sex, and national origin. Contractors were required to include nondiscrimination clauses in contracts, to post notices, to keep personnel records for enforcement by the Department of Labor and to adopt good-faith efforts akin to numerical goals for underrepresented groups modeled after practices debated in venues like the National Labor Relations Board and academic centers such as the Brookings Institution. The Office of Federal Contract Compliance Programs was charged with evaluating compliance, using reviews of contractor workforce data comparable to audits performed by agencies like the General Services Administration.

Implementation and Enforcement

Implementation was vested primarily in the Office of Federal Contract Compliance Programs within the Department of Labor, which developed regulations, compliance review procedures, and conciliation processes. Enforcement mechanisms included debarment from federal contracting, referral for sanctions by the Federal Acquisition Regulation system, and settlement agreements negotiated with contractors, sometimes involving oversight by Judge Frank M. Johnson or other jurists in adjudicated disputes. The order’s enforcement intersected with administrative proceedings before bodies such as the Equal Employment Opportunity Commission and influenced procurement practices overseen by agencies like the Department of Defense and General Services Administration.

Amendments and Related Orders

Subsequent executive actions and administrative rulemaking modified and expanded coverage. Notable related instruments included later executive orders and memoranda during administrations from Richard Nixon through Barack Obama, amendments incorporating sex discrimination and sexual orientation protections in some agencies, and regulatory updates under the Reagan administration, Clinton administration, and Trump administration that affected contracting regulations. Legislative interactions involved the Rehabilitation Act of 1973 and court-driven reinterpretations after cases such as Regents of the University of California v. Bakke that shaped the legal contours of affirmative action. Agency-level directives and Federal Acquisition Regulation notices periodically refined recordkeeping, goal-setting, and outreach requirements.

Legal Challenges and Litigation

The order and its implementing regulations were subject to sustained litigation addressing constitutional issues, statutory interpretation, and administrative authority. Significant litigation involved claims before the United States Supreme Court and federal circuit courts concerning equal protection doctrines, Title VII precedent, and the permissible scope of remedial race-conscious measures. Cases and controversies often referenced decisions such as Griggs v. Duke Power Co. and United Steelworkers v. Weber in debates over disparate impact and voluntary affirmative action. Plaintiffs included contractors, trade associations, and individual employees; defendants included the Department of Labor and contracting agencies. Challenges prompted doctrinal development in areas like strict scrutiny review, governmental contracting discretion, and the interplay between executive orders and congressional enactments.

Impact and Legacy

The order reshaped the landscape of federal procurement and employment practices, embedding affirmative action into contracting and influencing corporate diversity policies adopted by major firms and unions. It contributed to expanded representation for historically excluded groups in sectors overseen by federal purchasing power, informed compliance cultures in multinational corporations, and served as a model for state and local contracting requirements adopted by entities such as the City of New York and the State of California. Debates over the order’s legacy continue in policy forums including think tanks such as the Heritage Foundation and Center for American Progress, in academic research at institutions like Harvard University and University of California, Berkeley, and in legislative and judicial venues shaping the future of affirmative action and procurement justice.

Category:United States executive orders