Labor & Employment Law Daily Wrap Up, PRACTICE TIP—Former OFCCP, DOL officials try to help federal contractors navigate tricky new anti-discrimination environment, (Apr 18, 2025)
By Pamela Wolf, J.D.
“Indeed, President Trump cannot have it both ways, revoking EO 11246, but somehow still allowing the agency to investigate contractors and take enforcement action against their diversity, equity, inclusion, and accessibility programs.”
In an open letter to the federal contractor community, former officials of the DOL’s Federal Contract Compliance Programs (OFCCP), responsible for enforcing the anti-discrimination provisions of Executive Order (EO) 11246, and former Solicitors of Labor who supported that enforcement work, stated that “decades of progress to create good jobs and fair merit-based workplaces are now at risk.” In the aftermath of President Trump’s EO 14173, which revoked EO 11246, the former officials sought to help federal contractors and other employers to navigate what they called a “complex environment,” and to provide “clarity about their options and obligations under the law.”
EO 11246 prohibited discrimination. Tracing the history behind EO 11246, which prohibited discrimination by federal contractors on the basis of race, color, religion, and national origin, later expanded to include sex, sexual orientation and gender identity, the letter underscored that compliance with the EO “did not involve race, gender, or other preferences or quotas.” The implementing regulations “promoted merit in hiring, compensation, and promotion practices, as well as compliance with bedrock civil rights law by ensuring qualified individuals were not excluded based on their background.” The letter noted that federal contractors employ more that 20 percent of the American workforce.
EO 14173 “gutted” anti-discrimination protections. Turning to EO 14173, which the former officials described as “gutting” EO 11246’s protections, the letter pointed to “equally troubling” “threats and intimidation” used by the Trump Administration “to deter contractors from engaging in lawful actions to promote diversity, equity, inclusion, and accessibility (DEIA) initiatives.”
According to the former officials, the OFCCP’s new Director, Catherine Eschbach, in implementing EO 14173, “issued troubling statements indicating a fundamental misunderstanding of the agency’s work, describing OFCCP’s past activities as significantly ‘out of step if not... contradictory to the nation’s laws.’” Eschbach, in announcing plans to take steps “she has no authority to take,” “stated that the federal government is considering investigations and enforcement actions against federal contractors designed to ‘deter DEI programs or principles.’” Eschbach also proposed to review the affirmative action program documents prepared and submitted by contractors when EO 11246 was in force, “to identify potential investigation targets,” the former officials noted.
Vulnerability, concern, and uncertainty. Federal, state, and local civil rights laws, including Title VII of the Civil Rights Act of 1964, continue to protect America’s workers, but the decision to abandon EO 11246’s proactive enforcement program “leaves employees who work for federal contractors more vulnerable to discrimination,” the open letter states. Subsequent Administration actions “have also fueled widespread concern and uncertainty, leaving federal contractors—and other employers across the nation—unsure about their obligations under our civil rights laws,” according to the former officials.
Promoting equal opportunity for all. Noting that many federal contractors are “caught between long standing commitments to equal opportunity for all their employees and complex risks from multiple directions,” the open letter is aimed at explaining “why, despite the chaos and confusion, contractors should carefully weigh the risks of backing away from employment practices to promote equal opportunity for all.” Among other things, the former officials observed that:
Conducting self-assessments, including data analysis to detect and prevent discrimination, has helped employers thrive by leveraging the full talent across America.
This work also protects employers from liability by ensuring compliance with federal, state, and local anti-discrimination laws.
The OFCCP also carries out a Congressional mandate for the DOL to provide equal opportunity for veterans and people with disabilities, which remains in effect. (Despite this clear Congressional requirement, DOL has halted any work by DOL employees to protect workers with disabilities and veterans to fulfill the DOL’s enforcement responsibilities).
Continuing effective discrimination prevention programs is also fully lawful, and the Administration’s actions are contrary to well-established law.
Executive order limitations. Presidents may not override Congressional civil rights mandates by EO, the former officials pointed out. Moreover, the Trump Administration’s “coercive attempts to prevent contractors from engaging in good faith efforts to ensure equal opportunity improperly threaten due process and free speech protections,” the letter states. Further, there is no basis to retroactively impose liability now for federal contractors’ past good faith efforts to comply with OFCCP regulations.
“Indeed, President Trump cannot have it both ways, revoking EO 11246, but somehow still allowing the agency to investigate contractors and take enforcement action against their diversity, equity, inclusion, and accessibility programs,” the former officials wrote. “Because the Administration’s actions are legally unsound and harmful to workers, employers, and America’s economy, we urge federal contractors to carefully evaluate how they can best achieve the equal opportunity commitments they have made through their diversity, equity, inclusion, and accessibility programs.”
Inclusive practices recommended. The former officials offered the reasons why programs implemented under EO 11246 remain essential. They also provided some design recommendations to promote effective and lawful practices (further detailed in the open letter):
Proactive barrier analysis.This is a self-assessment approach that remains fully lawful and essential to prevent discrimination. It is used to identify and remove obstacles that prevent equal employment opportunity. The approach investigates unusual patterns in an employer’s employment practices to evaluate whether particular practices provide fair opportunities to everyone, and do not favor or unfairly disadvantage individuals because of a protected basis. It enables employers to spot potential liability risks and ensures that decisions about hiring, pay, and promotion rely on legitimate job-related qualifications.
Collecting and analyzing workforce data. OFCCP regulations required federal contractors to collect and analyze applicant flow data as well as workforce demographic data. This practice enables contractors to ensure they are fully utilizing the available workers in their geographic area who have the skills and abilities to do the job.
Tracking progress through well-crafted benchmarks. Employers sometimes use benchmarking or aspirational goal setting to monitor for potential discrimination in recruitment, hiring, promotion, and other practices. This tracking was supported by OFCCP regulations; it remains a useful tool for employers, even in the absence of a federal mandate. Well-crafted benchmarks or aspirational goals reflect the reasonable expectation that under a fair and open process, qualified individuals of all backgrounds will apply and be selected, and there will not be any significant patterns that favor one group over others. Where unexpected discrepancies appear, it is an indicator to investigate further to determine whether there may be artificial barriers that exclude qualified workers.
“Indeed, high-performing federal contractors are continuing to prioritize this work, recognizing that inclusive practices drive measurable outcomes—including operational excellence and competitive advantage,” the former DOL officials said.
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