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We Should Base Hiring Decisions on Merit, Not Quotas [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-02-28
The rhetoric surrounding the recent anti-DEI Executive Orders—Ending Illegal Discrimination and Restoring Merit-Based Opportunity and Ending Racial and Wasteful Government DEI Programs and Preferencing—as well as official statements, implies that these orders corrected a long-standing issue within U.S. laws. The fact is “affirmative action” is not a quota system, nor is it a mandate to prioritize less-qualified candidates based on their protected class. Instead, it has historically been a mechanism to ensure that every individual, regardless of class or economic background, is afforded the same opportunities.
Misinformation from both sides of the debate is often amplified by hyperbole and logical fallacies designed to mislead audiences and distort facts. Without conducting thorough research directly from the source—in this case, the Executive Orders being discussed—it is impossible to form an educated and accurately informed opinion. A list of unbiased resources follows this article; readers are encouraged to verify the information and analysis presented here.
Executive Order: Ending Racial and Wasteful Government DEI Programs and Preferencing
The first order under discussion is Ending Racial and Wasteful Government DEI Programs and Preferencing, which rescinds EO 13985, signed into law by President Biden in June 2021. This order, along with related environmental justice positions and grants, is now nullified.
EO 13985 required executive departments and agencies to assess their policies and actions, providing reports on whether such policies mitigated or exacerbated inequality. Agencies were to recommend necessary actions based on their findings. The stated purpose of EO 13985 was to:
“Create opportunities for the improvement of communities that have been historically underserved… closing racial gaps in wages, housing credit, lending opportunities, and access to higher education.”
Inequality was defined as:
“Consistent and systematic fair, just, and impartial treatment of all individuals… including LGBTQ+.”
To advance fairness and opportunities in underserved areas, the order directed that government budgets be equitably distributed to ensure all individuals and communities had the same access to resources and opportunities.
Examples of EO 13985 Implementation:
Department of the Interior : Stated that EO 13985 required agencies to advance equality by identifying and addressing barriers to equal opportunity caused by government policies.
Department of Justice : Declared its commitment to ensuring federal funding programs were inclusive of historically underserved and marginalized populations.
Department of Defense : Pledged to invest in Minority Service Institutes and expand DoD programs and opportunities in underserved communities.
Department of Education: Aimed to simplify the FAFSA application, increase Pell Grants, and publish lists of low-value institutions to protect students. It also worked on equity plans to address disparities in state funding for districts serving students of color and low-income backgrounds.
The question to be considered then, is did EO 13985 create inequitable advantages for marginalized communities, or did it simply level the playing field? The answer shall be left for the reader to determine based on their interpretation of the facts. Notably, the majority of government departments have removed records that could support or refute these claims, leaving limited data available for evaluation. In furtherance of the truth, the second anti-DEI policy should also be evaluated.
Executive Order: Ending Illegal Discrimination and Restoring Merit-Based Opportunity (EIDRMO)
This EO, signed into law on Trump’s second day of office in January of 2025, rescinds EO 11478. EO 11478, signed into law by President Nixon in 1969, states that the government is prohibited from discrimination based on race, color, religion, sex, national origin, handicap, age, sexual orientation, or status as a parent (as amended) and that affirmative action should be taken to ensure that every protected class has the same opportunities. The ‘same opportunities’ included posting position openings publicly across diverse platforms to reach audiences of all protected classes and making the application process fair, hiring considerations, training opportunities, job conditions, promotions, pay, etc. Affirmative action is meant to encourage the consideration of the class in addition to the qualifications to prevent inequitable and unfair employment bias. Departments were to establish a plan for ensuring equity to “hire on merit.”
EO 11478 established the Equal Employment Opportunity Commission (EEOC) as the oversight body, All agencies were directed to cooperate with the EEOC, including supplying reports and information as requested. The EEOC considered the number of qualified candidates and workforce available based on demographics and weighed that against the actual demographics employed just as the standard applied to the private sector. This check helped to ensure equality in employment practices. So then, if it did little more than enforce fair and merit-based hiring, what’s the big deal?
Key Differences and Implications:
Upon the finding of infraction, the EEOC, under EO 11478, was to issue orders and instructions to offending agencies or departments, as necessary and appropriate to comply with the order.
EO EIDRMO, on the other hand, extends beyond government and federally funded entities to criminalize private-sector DEI policies that prioritize diversity considerations in hiring.
A report due on March 1, 2025, is expected to outline penalties for private companies that continue DEI-based hiring practices.
This order shifts focus from addressing underrepresentation to potentially punishing companies with disproportionately diverse workforces, raising concerns about how enforcement will be determined.
Other Rescinded Executive Orders:
EO EIDRMO also nullifies several other major policies:
EO 12898 (1994): Addressed environmental justice in low-income communities, requiring risk assessments for hazardous facilities and pollutant-bearing wildlife. EO 13583 (2011): Required federal agencies to identify best practices for diversity while maintaining merit-based principles in hiring and professional development. EO 11246 (1965): Established the foundational Equal Employment Opportunity policy, prohibiting discrimination in federal employment and mandating proactive diversity initiatives.
EO 11246 has been the cornerstone of nondiscrimination labor laws for U.S. federal employees for decades providing an avenue for redress through the EEO.
The Larger Implications
The anti-DEI orders have effectively removed mechanisms that facilitated fair hiring practices within federal employment and federally funded programs. While proponents argue that these reversals restore merit-based hiring, critics contend that they remove vital protections and discourage diversity in hiring decisions.
Notably, the language of these new orders suggests that hiring disparities—even when merit-based—may now be grounds for scrutiny. Companies with significant representation of women, non-Americans, racial minorities, disabled individuals, LGBTQ+ employees, or older workers may face legal consequences, without the ability to demonstrate that hiring decisions were based on qualifications rather than demographics.
Ultimately, readers must evaluate these facts and form their own opinions on the consequences of these policies.
Resources for Further Research
For direct access to laws, executive orders, and legal analyses, the following resources are recommended:
www.findlaw.com
www.law.cornell.edu
www.justice.com
www.justia.com
www.supremecourt.gov
www.federalregister.gov
www.whitehouse.gov
www.senate.gov
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