On June 27th, OFCCP Director Catherine Eschbach sent a letter to federal contractors requesting information about efforts they have made to comply with EO 14173 by ending their EO 11246-based affirmative action efforts.
Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” was issued by President Trump on January 21, 2025, permitting employers to continue affirmative action efforts for women and minorities under EO 11246 for a period of 90 days, which ended on April 21st. In her recent letter, Director Eschbach invites contractors to now voluntarily submit narrative information describing “their efforts to wind down compliance with the EO 11246 regulatory scheme and ensure full compliance with the Nation’s non-discrimination laws.”
In her letter, Director Eschbach offers examples of practices employers might address in their submission. Some of the practices mentioned in the letter violate non-discrimination laws, and employers should refrain from submitting information that demonstrates current or prior participation in these or similar programs. Employers should also take immediate action to evaluate and revise any practices that may not be consistent with equal opportunity:
“making trainings, sponsorship programs, leadership development programs, educational funding, or other privileges of employment available only to employees of a certain race or sex; placement goals that were based on race or sex; ratings by diversity organizations that graded employers on factors that included the provision of resources designed to promote the rise of non-white, non-male employees; using applicants’ or employees’ participation in race- or sex-related (internal or external) groups or organizations as a “plus factor” or proxy for race or sex in employment and hiring decisions; tying executive compensation to meeting race- or sex-based hiring, promotion, retention, representation, or other employee-demographic-related goals; mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes; and encouraging employees to make recruitment efforts to or employment referrals of certain candidates based on race or sex.”
Information may be submitted in OFCCP’s Contractor Portal, which has been updated with a message regarding the request for information, or via email. Within the Contractor Portal, the response section is accessed by selecting My Company, then Edit Company.
What should employers do?
HR Works urges employers to exercise caution. OFCCP has not obtained OMB approval for this data collection, meaning all submissions are voluntary. Information will be collected through September 25, 2025, providing ample time for contractors to consider and evaluate their options. As we have seen with the current administration, a lot can change in 90 days and more information may emerge during that time, making the decision clearer.
Why wait?
Of particular concern, it remains unclear how OFCCP intends to use this information, and the range of possibilities is wide. Among them: Director Eschbach may simply be taking steps to demonstrate that OFCCP is no longer allowing EO 11246 affirmative action; the agency may be seeking to draw examples from the submissions, either for publicity purposes or to educate employers; or investigations may be triggered for employers that disclose discriminatory practices in their responses, even if those practices, like placement goals for women and minorities, were lawful at the time they were in place. Employers should have no expectation that their responses will remain confidential.
Further complicating any assumptions about how the submissions will be used by the government, OFCCP is positioned to lose budgetary funding as of September 30th, with enforcement of ongoing affirmative action efforts under Section 503 and VEVRAA transferring to EEOC and the Veterans Employment and Training Service, respectively. OFCCP will likely have just three business days to process employer submissions.
While HR Works’ current recommendation is that contractors do not respond to this voluntary information request until or unless more information is provided by the agency, each contractor will need to make its own individual decision about whether to submit information. Other options include 1) a brief statement acknowledging awareness of and compliance with EO 14173; 2) a short summary of changes made to discontinue compliance with EO 11246, including non-discriminatory examples such as removing the pay transparency posting and handbook provision, revising the EO Clause in purchase orders and subcontracts, and ending AAP goals for women and minorities; or 3) a thorough summary of EO 11246 practices evaluated and modified, in accordance with the examples Director Eschbach provided. Any employer seeking to provide a thorough response is strongly urged to consult with legal counsel before submitting any information.
Next steps
There are actions employers can take immediately to assist with the decision whether to voluntarily submit information by September 25th. HR Works affirmative action clients should take this opportunity to again review the Transitional Implementation Guide, found in their client portal or at www.hrworks-inc.com/affirmative-action-client-resources, to ensure EO 11246 affirmative action practices have been discontinued as needed. This is also a good time to initiate a thorough review of personnel practices and DEI initiatives to ensure non-discrimination throughout. Employers seeking a third-party review of their DEI practices may contact HR Works to learn more about our equal opportunity risk assessment services.
The federal government’s handling of affirmative action and equal opportunity is still evolving. HR Works will continue providing updates and guidance in the face of these changes.
