OFCCP, EEOC, and DOJ Issue New Compliance Guidance

MRA can help you navigate the evolving requirements of affirmative action, equal employment opportunity, Title VII, and DEI.

This article is current as of the date of publication. This is a quickly evolving and complex topic, where frequent changes should be anticipated.

It has been a busy few weeks for the Office of Federal Contractor Compliance Programs (OFCCP), the U.S. Department of Justice (DOJ), and the Equal Employment Opportunity Commission (EEOC). Each agency announced several updates to Executive Order 14173, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity." While there are still many outstanding questions and additional guidance is needed, there are several key points that private employers, including federal contractors and subcontractors, should be aware of. Below is a summary of key takeaways and recommended actions for employers.

Federal Contractors and Subcontractors

On March 24, 2025, OFCCP’s newly appointed Director, Catherine Eschbach, stated, in reference to the rescission of Executive Order 11246, that she is "…committed to carrying out President Trump’s executive orders, which will restore a merit-based system to provide all workers with equal opportunity." Employers should anticipate several changes to contractor compliance requirements.

Key Takeaways:

• The OFCCP will likely reopen closed compliance evaluations to determine if federal contractors and subcontractors are complying with the new executive order. The grace period to stop complying with Executive Order 11246 ends on April 21, 2025.
• There will likely be a new certification process that will require adherence to Executive Order 14173. This certification may require contractors and subcontractors to confirm their compliance with Title VII of the Civil Rights Act of 1964, as amended, including nonparticipation in illegal Diversity, Equity, and/or Inclusion (DEI) efforts (those that violate any applicable federal anti-discrimination laws).

Recommended Actions:

• Ensure that your organization is compliant with Executive Order 14173 by April 21, 2025. OFCCP will specifically seek to confirm that federal contractors and subcontractors no longer align with Executive Order 11246. However, contractors and subcontractors still need to prepare Affirmative Action Plans (AAPs) for veterans and individuals with disabilities. It is also important to note that some contractors and subcontractors may have obligations with state, county, and/or municipal agencies that require affirmative action for women and minorities.
• If your organization recently had an OFCCP compliance review, including those administratively closed under the new administration in January, a review of your submission and corresponding employment practices is recommended to ensure there is no evidence of discriminatory employment practices.

Illegal Diversity, Equity, and Inclusion

On March 19, 2025, the EEOC and the U.S. DOJ issued a press release and two technical assistance documents clarifying how Title VII of the Civil Rights Act of 1964 applies to DEI policies.

"What To Do If You Experience Discrimination Related to DEI at Work"

"What You Should Know About DEI-Related Discrimination at Work"

The guidance provides employers with important clarity on the potential risks associated with DEI programs. Executive Order 14173 aims to prevent discrimination, in whole or in part, based on any protected characteristic under any applicable existing federal anti-discrimination laws. This has created uncertainty for employers about what constitutes lawful versus unlawful DEI efforts.

Key Takeaways:

The guidance clarifies:

• Title VII of the Civil Rights Act prohibits discrimination based on race, color, national origin, sex, and religion, and emphasizes that DEI programs that involve quotas or preferential treatment based on these characteristics may be deemed unlawful.
• Title VII applies equally to all employees, regardless of whether they belong to a minority or majority group, and all discrimination claims must be treated with the same legal standards.
• There is no business necessity exception for DEI programs that involve discriminatory race-based actions, such as hiring or promoting based on racial or gender quotas. The guidance also outlines various other examples of potentially unlawful DEI practices, such as segregating or classifying employees by protected characteristics in a way that affects their status or deprives them of employment opportunities (e.g., exclusive employee resource groups), separating employees by protected characteristics when administering training, even if the content or amount of employer resources are equivalent (e.g., leadership training is offered to all employees with a specific group for women-only), and providing DEI training that includes unwelcome comments or conduct about protected characteristics, such as race and gender, when it results in “…an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.”

Recommended Actions:

• While there are still many unknowns, this new guidance should be reviewed carefully. Employers are advised to assess their DEI programs to ensure compliance with Title VII. Practices that are particularly vulnerable to legal challenges include policies that give preference to specific demographic groups in hiring, promotion, or training; affinity group programs that exclude employees based on protected characteristics; and the use of AI tools that may unintentionally reinforce bias.
• The EEOC encourages employers to review their DEI programs to ensure transparency in decision-making and train HR personnel on practices that align with legal requirements and business goals.

Steps To Take Now:

• April 21 is a key deadline for reviewing and revising all policies, handbooks, and communications related to affirmative action, DEI, and EEO compliance.
• Prepare for new certification requirements by conducting proactive EEO analyses to ensure compliance with anti-discrimination laws before certifying.
• Reassess DEI programs by focusing on non-discrimination and inclusion to align with new federal guidance.

MRA Can Help Navigate All These Changing Requirements

MRA is here to help you navigate these changes and requirements. Our team can help you review your current policies and practices, complete compliant affirmative action plans, and provide audit support if needed. We are excited to share a new partnership with Silberman Law to help you maintain attorney privilege when conducting compliance reviews.

To learn more about how MRA can help or about the Silberman Law partnership, contact Jennifer Agnew.

If you have any other questions, MRA’s HR Hotline Advisors are here to help! Contact us today.