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Programs that set participation goals for traditionally underrepresented workers on federal construction contracts may be under fire, but they’re not dead yet.
That was the take of a lawyer who focuses on such government initiatives after President Donald Trump issued several executive orders this week to eliminate diversity, equity and inclusion efforts in the federal government and reversed the ban of discrimination in federal hiring.
Chris Slottee, a Schwabe attorney in Anchorage, Alaska, who specializes in federal procurement, said that because the programs were created by Congress, he will take action from Congress to eliminate them.
“The executive orders certainly indicate some hostility toward disadvantaged business programs, and the agencies will take the president’s lead,” Slottee said in an email. “But the programs have not been, and cannot be, as they have been enacted by Congress, terminated by executive order.”
Chris Slottee
Courtesy of Schwabe
A lot of orders
Slottee’s comments came after Trump on Tuesday rescinded an executive order issued by President Lyndon Johnson in 1965 during the Civil Rights Movement to ban discrimination in federal contracts.
That move followed several other executive orders signed Monday targeting eliminating the federal government’s DEI priorities established by former President Joe Biden. On Tuesday, Trump expanded that focus to include private companies, directing agencies to create plans to “foster the private sector to end illegal discrimination and preferences, including DEI.”
On Wednesday, the The White House issued a statement saying that Trump’s action “protects the civil rights of all Americans and expands individual opportunity by ending the radical DEI preference in federal contracting and directing federal agencies to relentlessly combat private sector discrimination.”
The Small Business Administration’s 8a program and the Department of Transportation’s disadvantaged business program set aspirational goals for women and other traditionally underrepresented groups to receive portions of government construction contracts.
those programs have faced legal challenges since the Supreme Court banned affirmative action in college admissions practices in 2023. While the challenges put the programs on the line, they also led to changes that could give them a stronger legal footing .
For example, the SBA’s 8a program, and to some extent the DOT’s DBE program, no longer presume that people are disadvantaged based on their sex or race, Slottee said. By removing race and sex as a basis for automatic participation, the programs could be protected from Trump’s orders.
“Consequently, current small business hiring programs for disadvantaged businesses no longer involve race as a factor and therefore will not be directly affected,” Slottee said.
Diminished support
While the changes may give coverage to targeted programs, overall, Slottee said they will likely be weakened under the new administration.
“We may see second-order impacts on these programs, based on changing leadership at SBA and DOT, with a potential change in focus or decreased support for these programs,” Slottee said.
There could also be other impacts for contractors working on federally funded projects from Trump’s actions this week, Slottee said.
“Historically, presidents have used their ability to issue executive orders to attach strings to federal contracts, from the requirement to have an affirmative action plan for employment, to mandatory sick leave for employees of the Service Contract Act,” Slottee said. “President Trump’s executive orders may have the effect of removing some of these regulatory requirements, thereby reducing the administrative burden on government contractors.”
