A leaked internal email from the newly-appointed Director of the Office of Federal Contract Compliance Programs (OFCCP) indicated that it may review information previously submitted by federal contractors during OFCCP audits to determine whether they should be investigated for discriminatory DEI practices. While it is currently unclear if the OFCCP will use this information to retroactively target individual employers and/or key sectors for concern, employers should take this opportunity to review their existing written documents for unlawful discrimination as defined by the current administration.
Specifically, employers should review all written communications, policies, and initiatives (including EEO policies, guidelines for employee resource and/or affinity groups, information submitted for bids, and related documents).
While reviewing policies, keep the below guiding principles in mind:
- Employee resource groups, affinity groups, and mentoring programs should not impermissibly retain, train, or develop employees based on protected characteristics. Do not limit attendance to only members of a certain protected class or discourage attendance by employees outside of a protected class.
- Avoid providing preferential benefits (training, career development opportunities, etc.) to employees based on their protected characteristics.
- Avoid drawing distinctions based on any protected characteristic in granting permission to groups and events. For example, an employer should not permit the formation of affinity groups only for certain racial groups, only one sex, or only certain religions but not others in all instances.
- Remove references to affirmative action plans or Executive Order 11246.
Essentially, employers cannot take any action that is premised upon a protected characteristic – even if it is not the sole reason for the action. While reviewing policies, employers shouldn’t just tweak words; they should review the effect of its policies as implemented. If there is a concern that a policy or program creates an unlawful preference, it should be reviewed.
Again, it is unclear whether the OFCCP will, or even has the authority to, use information submitted by federal contractors to enforce its policies retroactively. By May 21, 2025, the Attorney General is expected to release a strategic enforcement plan identifying key sectors and entities of concern and specific steps to deter DEI programs considered by the current administration to be illegally discriminatory.
As an additional reminder:
- Federal contractors who wish to continue their affirmative action efforts based upon race and sex may have done so until April 21, 2025.
- After April 21, 2025, federal contractors may have to certify that they have “unwound” their affirmative action plans and are not engaging in illegal discrimination.
