Labor & Employment Law Daily Wrap Up, AGENCY NEWS—Justice Department announces rescission of report on lawful uses of race or sex in federal contracting programs, (Apr 22, 2025)

By Brandi O. Brown, J.D.

According to the notice, the report and the 2022 guidance issued on it “is no longer considered an accurate reflection of the current laws, executive orders, and federal court jurisprudence....”

The Department of Justice is publishing a notice in the Federal Register on April 23, 2025, in which it rescinds prior guidance relating to the use of race or sex in federal contracting programs.

DOJ’s 2022 report and notice. In 2022, using an updated report regarding legal and evidentiary frameworks, the Justice Department had determined that continued use of race or sex by federal agencies, in appropriate circumstances, was justified to remedy the current and lingering effects of past discrimination in federal contracting programs. The report, the agency in 2022 concluded, “supports the compelling interest in the continued use of federal programs that contain remedial measures to eliminate discriminatory barriers to contracting opportunities for businesses owned by women and people of color.”

According to the notice going into tomorrow’s Federal Register, however, the report and the 2022 notice issued on it “is no longer considered an accurate reflection of the current laws, executive orders, and federal court jurisprudence concerning the constitutionality of using race or sex in federal government programs and should not be cited in the defense of them.”

Contradictory precedent. The current notice states that “after it issued, federal courts have developed a substantial body of contradictory precedent interpreting the use of race and sex in affirmative action programs, including in federally funded contracting programs.” It adds that the 2022 guidance is also inconsistent with two of Trump’s executive orders, including Executive Order 14151 of January 20, 2025, Ending Radical and Wasteful Government DEI Programs and Preferencing, and Executive Order 14173 of January 21, 2025, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.

According to the notice, the 2022 guidance is no longer available on the Department of Justice’s website “nor should its contents be cited as evidence supporting race- or sex-based programs.”

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