How to Remain Compliant: Navigating the Post-Affirmative Action Landscape for Federal Contractors
On January 21, 2025, President Trump issued an Executive Order targeting diversity, equity, and inclusion (DEI) and diversity, equity, inclusion, and accessibility (DEIA) programs.1 Among other things, Executive Order 14173 (EO 14173), titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” revoked Executive Order 11246. We unpacked the key provisions of E.O. 14173 in a previous alert. How will this development impact federal contractors, subcontractors and other companies?
Overview of E.O. 11246
E.O. 11246, now revoked, provided much of the basis for regulations implementing the requirement that federal contractors and subcontractors engage in affirmative action efforts to ensure that contractors and subcontractors refrained from discrimination against any employee or applicant for employment because of race, creed, color, or national origin. EO 11246 also required federal contractors and subcontractors that met specified jurisdictional thresholds to develop written affirmative action plans. These federal contractors and subcontractors, and private employers with at least 100 employees, must also submit workforce data annual report (“EEO-1”) to the Equal Employment Opportunity Commission (the “EEOC”). Thereafter, the government added two additional equal opportunity mandates: Section 503 of the Rehabilitation Act of 1973 (“Section 503”), which covers individuals with disabilities and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), which covers protected veterans. Note that VEVRAA requires covered contractors and subcontractors to submit to the EEOC an annual VETS-4212 report, which is a workforce data report specific to protected veterans.
On February 21, 2025 the United States District Court for the District of Maryland enjoined the Trump administration from implementing E.O. 14173 and another Executive Order ending DEI programs within the federal government. (E.O. 14151). As we summarized in a previous alert, the Court found that certain provisions of these two executive orders violate the First and Fifth Amendments to the United States Constitution in that they are unconstitutional content-based and viewpoint-discriminatory restrictions on protected speech (First Amendment) and deny Plaintiffs protection under the Fifth Amendment right to Due Process.
A panel of the United States Court of Appeals for the Fourth Circuit lifted the injunction on March 14. As we wrote in a previous alert, in lifting the injunction the panel noted that the challenged executive orders directed government agencies to take certain actions, and there was not yet a basis to conclude that the agencies would do so in an unconstitutional manner.
What Happened?
On January 24, acting U.S. Department of Labor (DOL) Secretary Vincent Micone released an agency Order directing DOL employees to stop “all investigative and enforcement activity” related to E.O. 11246. Secretary Micone stated that the DOL “no longer has any authority” under the rescinded order. The Order also ordered Section 503 and VEVRAA components of any ongoing review or investigation be held in abeyance pending further guidance.
Additionally, news outlets reported that on February 25, 2025, in response to Trump’s mandate to reduce all agency workforces, acting director of OFCCP, Michael Schloss sent a memo to Secretary Micone detailing Schloss’ plans for a reduction in force at OFCCP.
Undoubtedly, the revocation of E.O. 11246, the planned reduction in force at OFCCP, and a host of other executive orders and agency activities are causing confusion among employers and federal contractors and subcontractors who are perplexed about whether to collect, report, or store demographic data about their employees and prospective employees as required in Section 709(c) of Title VII of the Civil Rights Act of 1964 and implementing regulations (including FAR 22.8). On the one hand, the status of the executive orders issued by President Donald Trump is in flux as courts across the country are addressing challenges raised to the legality of the orders; on the other hand federal contracting and subcontracting entities are confronted with managing the legal and business risks associated with “illegal DEI and DEIA policies.” Federal contracting agencies have also begun to announce Federal Acquisition Regulation (FAR) Class Deviations to FAR 22.8 in order to implement the recent executive orders related to DEI. These FAR Class Deviations will result in modifications to existing and future federal contracts, affecting both federal contractors and subcontractors.
What Should Federal Contractors and Subcontractors Do?
Continue Compliance with Other Federal and State Law
Federal contractors and subcontractors must still fulfill obligations under federal and state laws, like those requiring submission of workforce and/or pay data under applicable federal and state law.
Permissive and Mandatory Steps
Federal contractors may continue to comply with the regulatory scheme implementing E.O. 11246 for 90 days from the date EO 14173 was published. How to determine whether to continue developing and maintaining affirmative action plans through April 21, 2025, is a business decision that should be made on a case-by-case basis.
Additionally, OFCCP still has authority to investigate and enforce claims under Section 503 of the Rehabilitation Act or VEVRAA brought by a federal contractor or subcontractor employee.
Ongoing Affirmative Action Obligations
Federal contractors and subcontractors who were in the process of drafting or implementing affirmative action policies should be mindful that E.O. 14173 did not revoke the federal contractor and subcontractor mandates under Section 503 or VEVRAA to take affirmative action for individuals with disabilities and protected veterans. Accordingly, business with at least 50 employees (or those expecting to grow to that size) and with contracts valued at least $50,000 (for coverage under Section 503, or $150,000 under VEVRAA) should continue with instituting affirmative action plans for individuals with disabilities and protected veterans. As referenced above, however, OFCCP has been directed to hold review and enforcement proceedings in abeyance.
Next Steps
Overall, federal contractors and subcontractors should thoughtfully review their employment policies and practices to ensure that decisions, and records about employment decisions, accurately reflect merit-based employee selection and advancement processes. We also recommend waiting for additional details from the agency and seeking legal counseling before making any changes to your existing policies.
Before making any changes to current candidate or employee data collection practices, federal contractors and subcontractors should review their policies and procedures to determine compliance with both federal and state anti-discrimination laws, as well as for data reporting requirements.
Department of Labor Announces Appointment of New OFCCP Director
On March 24, 2025, the Department of Labor announced the appointment of Catherine Eschbach as Director of OFCCP. Direct Eschbach joins the agency after serving as an appellate lawyer in private practice.
Director Eschbach intends to “oversee [OFCCP’s] transition to its new scope of mission[.]” Notably, in the announcement Director Eschbach states that:
“President Trump made clear in his executive order on eliminating DEI that EO 11246 had facilitated federal contractors adopting DEI practices out of step with the requirements of our Nation’s civil rights laws and that, with the recission of EO 11246, the President mandates federal contractors wind those practices down within 90 days. As director, I’m committed to carrying out President Trump’s executive orders, which will restore a merit-based system to provide all workers with equal opportunity.”
According to reporting from The Wall Street Journal and Bloomberg, following her appointment, Director Eschbach issued an internal email to OFCCP employees outlining her plans for the agency. According to reports, Director Eschbach stated that:
“The reality is, most of what OFCCP had been doing was out of step, if not flat out contradictory, to our country’s laws, and all reform options are on the table[.]”
OFCCP will “examin[e] federal contractors’ previously submitted affirmative action plans to determine whether they indicate the presence of long-standing unlawful discrimination and whether it is appropriate for OFCCP to undertake any investigation and enforcement actions, or refer the matter to other relevant agencies with jurisdiction to investigate and/or initiate enforcement action[.]”
OFCCP will “verify” that contractors have “wound down” the affirmative action programs for women and minorities by April 21, 2025, as required by Executive Order 14173.
OFCCP will “examine the statutory authority” for any investigations and enforcement action under VEVRAA and Section 503 and determine if “new rulemaking is necessary” and whether investigation and enforcement actions are “best housed” within OFCCP;
OFCCP plans to identify “potential civil compliance investigations” of large organizations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion in order to “deter DEI programs.” This is consistent with EO 14173, which requires federal agencies to identify up to nine large organization for DEI-related civil investigations.
Consistent with previous OFCCP announcements and “the administration-wide DOGE agenda,” OFCCP will undergo a “rightsizing” to reduce its staff and office presence in light of OFCCP’s “reduced scope of mission.” As we previously reported, OFCCP had already planned to cut its workforce by 90 percent.
Employment Law This Week: Federal Contractors Alert: DEI Restrictions Reinstated by Appeals Court [Podcast, Video]
This week, we’re focused on federal contractors and the effects that the reinstatement of Executive Orders 14151 and 14173 will have on employers.
Federal Contractors Alert: DEI Restrictions Reinstated by Appeals Court
President Trump’s executive orders against diversity, equity, and inclusion (DEI) are back in effect after the U.S. Court of Appeals for the Fourth Circuit stayed a nationwide injunction, posing new compliance challenges for federal contractors.
In this week’s episode, Epstein Becker Green attorneys Nathaniel M. Glasser and Frank C. Morris, Jr., outline the implications for employers, focusing on the False Claims Act, whistleblower risks, and the need for certification of compliance with anti-discrimination laws. Tune in to learn what steps your organization can take to mitigate potential penalties and retaliation claims.
Other Highlights
Whistleblower Challenges and Employer Responses: One-on-One with Alex Barnard Managing whistleblower claims can be particularly challenging when they involve internal experts. Epstein Becker Green’s Alex Barnard shares insights on managing these challenges, distinguishing job duties from legitimate concerns, and investigating claims fairly.
The Trump Factor, Jobs, Laws, and the Workplace [Podcast]
What does the new administration mean for the future ofemployment law? As new orders and laws are signed at the federal level, The Employment Strategists David T. Harmon and Mariya Gonor break down what policies have been removed or revised, including:
Stay-or-pay provisions
Student-athlete rights
Rolling back on DE&I initiatives
Amended pregnancy accommodations, including abortion protections
Deprioritizing discrimination policies around race, gender, and sexual orientation
The use of AI in hiring
Whether you’re an employer trying to stay compliant withstate and federal mandates or an employee wanting to better understand your rights, this conversation is one you won’t want to miss.
What is DEI Discrimination? The Latest from the EEOC
On March 19, 2025, the Equal Employment Opportunity Commission (EEOC) issued guidance and a Q&A document that provide additional details regarding what constitutes “DEI-Related Discrimination at Work” and what steps employees can take to address it through the administrative process. The guidance confirms that Title VII remains the law of the land, “prohibits discrimination based on protected characteristics such as race and sex,” and does not “provide any ‘diversity interest’ exception” to its antidiscrimination mandate.
DEI-Focused Executive Orders and Court Battles
The Trump administration has put employers – both public and private – on notice that DEI initiatives will be scrutinized and challenged. On January 21, 2025, President Trump signed Executive Order 14173 (the EO) declaring employers’ policies and practices that “use dangerous, demeaning and immoral race- and sex-based preferences under the guise of so-called [DEI]” to be illegal.
The EO applies to federal contractors but also targets private employers as it directs federal agencies to combat DEI initiatives in the private sector. Parts of the EO – most notably its enforcement provision – were enjoined nationwide by a district court judge in Virginia earlier in March. However, on March 14, the Fourth Circuit granted the Trump Administration’s application for stay pending appeal, which reinstated the EO (until further notice).
What is Unlawful DEI?
The EO broadly defined “impermissible DEI” to include (a) illegal discrimination/preferences, and (b) workforce “balancing” based on race, color, sex, sexual preference, religion, or national origin, but did not provide any examples.
In its recent guidance, the EEOC reinforced longstanding Title VII antidiscrimination principles by stating, “DEI initiatives, polices, programs or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated – in whole or in part – by an employee’s or applicant’s race, sex, or another protected characteristic.” The guidance also provides concrete examples of what the EEOC views as illegal DEI, which include:
Disparate treatment of workers in access to or exclusion from (1) “training (including training characterized as leadership development programs),” (2) “mentoring, sponsorship, or workplace networking/networks,” and/or (3) “[i]nternships (including internships labeled as ‘fellowships’ or ‘summer associate programs’) . . .”
Employer-sponsored (broadly defined) activities that segregate, limit, or classify workers based on a protected class “such as employee clubs or groups . . . Employee Resource Groups (ERG), Business Resource Groups (BRG), or other employee affinity groups . . .”
Separation of workers into groups based on their “protected characteristic[s] when administering DEI or any trainings, workplace programming . . . even if the separate groups receive the same programming content or amount of employer resources.”
Making employment decisions related to employees’ protected characteristics based on the preferences of clients, customers, or coworkers.
The guidance emphasized that Title VII applies to “all members” of a protected class – not just minorities. On that basis, the EEOC clarified that it does not recognize “reverse discrimination” claims and that the EEOC does “not require a higher showing of proof for so-called ‘reverse’ discrimination claims.”
Next Steps:
Given the EEOC’s DEI guidance, employers should:
Review their hiring practices and materials for compliance with Title VII and the guidance.
Assess whether any company-supported employee groups limit membership on the basis of any protected characteristic(s).
Evaluate training programs for compliance with the guidance.
Train managers on the guidance and how to properly document hiring, promotion, and related employment decisions.
Trump Administration’s Executive Orders Attempt To Reset Sex & Gender Identity Issues in Women’s Sports
In January 2025, the Republican Party took control of both houses of Congress and the White House, portending seismic policy shifts around women’s and college sports, as previously reported here. Indeed, in the days immediately following his inauguration, President Trump issued a slew of Executive Orders, including Executive Order 14201 (Keeping Men Out of Women’s Sports) (February 5, 2025) (“EO 14201”). EO 14201 declared it would now be the policy of the United States to rescind funding from educational programs that permit transgender women or girls to compete on female sports teams or in female sports (the “EO 14201”).
The Trump Administration’s Department of Education immediately followed EO 14201 by making two significant policy announcements concerning the application of Title IX of the Education Amendments of 1972 (“Title IX”), signaling that President is already following through on his campaign pledge to reset Biden-era rules and regulations regarding women’s sports.
Below, we review EO 14201 and subsequent developments to discern their meaning and assess their immediate and long-term impact on women’s sports.
Key Provisions of the Executive Order
EO 14201 is effectively an extension into women’s sports of the Trump Administration’s interpretation of biological sex pursuant to Executive Order 14168 (Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government), which declared that it is the policy of the Unites States to recognize two sexes, male and female. EO 14201 states that participation of males (i.e., transgender women) in female sports “is demeaning, unfair, and dangerous to women and girls, and denies women and girls the equal opportunity to participate and excel in competitive sports.” Accordingly, it is the United States’ policy to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy” and “oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.”
In furtherance of its stated policies, EO 14201 includes directives to:
The Department of Education (“DOE”), to (i) comply with a recent federal court ruling vacating the Biden Administration’s Final Rule that broadened Title IX’s prohibitions against discrimination on the basis of sex to include gender identity, (ii) take action, including through litigation, review of federal funding, rulemaking and policy, to protect “all-female athletic opportunities and all-female locker rooms” in the interest of securing the equal opportunity guarantees of Title IX and ensuring “women’s sports are reserved for women.”
The Assistant to the President for Domestic Policy, to (i) engage with large athletic organizations and governing and harmed female athletes in support of EO 14201’s purpose, and (ii), convene State Attorneys General to identify best practices to define and enforce equal opportunity for women in sports.
The Secretary of State – among other government officials – to (i) engage in a variety of acts, including but not limited to rescinding support for programs that categorize competition based on identity rather than sex and promote international rules governing sport to protect a female sports category that is sex-based; (ii) review and adjust immigration policies that would admit males to the United States to participate in women’s sports, and (iii) take efforts to ensure that the International Olympic Committee amend standard to protect women and eligibility for Olympic competition is determined by sex, not gender identity or testosterone reduction.
Related Developments
The effects of EO 14201 were immediate.
On February 4, 2025, the DOE followed through and issued a “Dear Colleague” letter stating that it would be enforcing Title IX, not under the above-referenced, recently vacated 2024 Rule, but rather under the 2020 Rule, which was promulgated during the prior Trump Administration and aligns with EO 14201’s biological definitions of sex, excluding gender identity.
On February 6, 2025, and pursuant to EO 14201, the NCAA implemented a new participation policy limiting competition in women’s sports only to student-athletes assigned female at birth, while allowing student-athletes either (x) assigned male at birth, or (y) assigned female at birth who has begun gender-affirming hormone therapy (e.g., hormone therapy) to practice with women’s teams.
Less than a week later, on February 12, 2025, the Department of Education announced that it was rescinding guidance issued by the Biden DOE on January 16, 2025, which had warned NCAA schools that payments to student-athletes for use of their name, image, and likeness (“NIL”), whether distributed by schools or third parties (e.g., collectives or brands), qualified as “financial assistance” and must be distributed under Title IX on a nondiscriminatory basis.
By rescinding that guidance, the Trump Administration appears to be signaling that the protection of women in sports does not extend to NIL pay and that disparities in NIL pay between male and female athletes will not trigger Title IX scrutiny, at least not from the DOE. Thus, at least in the eyes of Trump’s DOE, if and when schools ever begin making NIL or revenue-sharing payments to student-athletes, Title IX will not restrict them from directing those funds in disproportionate amounts to athletes in revenue-generating sports, which are predominantly male.
Looking Ahead
EO 14201 was unsurprising given President Trump’s stated positions during the 2024 election campaign. Also unsurprising is the wide-ranging responses to EO 14201, which will likely face legal challenges in implementation given conflicting state laws and deep political divide. Its practical impact will likely differ based on level of competition (e.g., youth versus college sports) and whether federal funding is involved in any particular circumstance. In the meantime, organizations involved in women’s or girls’ sports would be wise to consider its potential impact on their polices and practices and keep an eye out for related developments.
EEOC and DOJ Release Guidance on DEI and Workplace Discrimination
On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice issued two technical assistance documents discussing how the agencies view and define Diversity, Equity and Inclusion (“DEI”) in the context of workplace discrimination: “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI AT WORK.”
Background
On January 20, 2025, President Trump appointed Andrea Lucas to serve as Acting Chair of the EEOC. According to the EEOC, Acting Chair Lucas “prioritizes evenhanded enforcement of civil rights laws for all Americans, including by rooting out unlawful DEI-motivated race and sex discrimination.” Acting Chair Lucas’s priorities align with the current Administration’s rejection of “illegal DEI,” as set forth in several Executive Orders, notably Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
This technical guidance sheds light on what constitutes “illegal DEI” in the EEOC’s view in relation to Title VII of the Civil Rights Act of 1964.
What Conduct May Constitute Illegal “DEI”
The technical guidance starts by acknowledging that “DEI is a broad term that is not defined in Title VII.” It explains that initiatives, policies, programs, or practices “may be unlawful if [they] involve[]” taking employment action “motivated—in whole or part—by race, sex, or another protected characteristic.” The EEOC states that Title VII protects all workers from discrimination, not only “individuals who are part of a ‘minority group,’ (such as racial or ethnic minorities, workers with non-American national origins, ‘diverse’ employees, or ‘historically underrepresented groups’) women, or some other subset of individuals.” To this end, “[t]he EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.”
The EEOC has identified several areas where “DEI” may result in actionable discrimination, including the following employment decisions:
Hiring and firing;
Promotion and demotion;
Selection for interviews, “including placement or exclusion from a candidate ‘slate’ or pool;”
Internships, fellowships, and summer associate programs;
Job duties and responsibilities;
Compensation; and
Fringe Benefits.
In addition, the EEOC states that providing access to certain opportunities may give rise to a charge of discrimination in the following areas:
Access to or exclusion from training (including leadership development programs);
Access to mentoring, sponsorship, or workplace networking/networks; and
Limiting membership in Employee Resource Groups “or other employee affinity groups” to certain protected groups.
The EEOC further states that separating employees into different groups based on protected characteristics is prohibited. The prohibited conduct is described as:
“Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment.”
With respect to training, the EEOC states that:
“DEI training may give rise to a colorable hostile work environment claim”; and
“Reasonable opposition to a DEI training may constitute protected activity.”
No Exceptions in the Name of Diversity
The guidance notes that employers cannot justify making employment decisions motivated by protected characteristics by virtue of their interest in diversity or equity, even if that interest is a “business necessity” or is guided by operational benefits or the preferences or requests of clients and customers.
Implications
In addition to identifying the types of activities it considers to be illegal DEI, the EEOC has advised the public how to report perceived acts of discrimination to the EEOC and explained how the agency may respond to such complaints. Employers may wish to revisit their training materials and policies in light of these recently issued documents and will want to consider the guidance going forward.
Catherine Eschbach Named OFCCP Director Amid Executive Order 11246 Rollback
On March 24, 2025, the U.S. Department of Labor announced the appointment of Catherine Eschbach as director of the Office of Federal Contract Compliance Programs (OFCCP), signaling a new chapter for the agency following the rescission of Executive Order (EO) 11246, a nearly sixty-year-old executive order that had prohibited employment discrimination by federal contractors.
Quick Hits
Catherine Eschbach has been named director of OFCCP to “oversee its transition to its new scope of mission.”
OFCCP will enforce EO 14173’s revocation of EO 11246, Eschbach said, stating that EO 11246 “had facilitated federal contractors adopting [diversity, equity, and inclusion (DEI)] practices out of step with the requirements” of civil rights laws.
Contractors must unwind their EO 11246 compliance within ninety days of the issuance of EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”).
In her statement, Eschbach emphasized the administration’s policy shift: “I’m honored to serve as director of the OFCCP under the Trump Administration and oversee its transition to its new scope of mission.”
“President Trump made clear in his executive order on eliminating DEI that EO 11246 had facilitated federal contractors adopting DEI practices out of step with the requirements of our Nation’s civil rights laws and that, with the recission of EO 11246, the President mandates federal contractors wind those practices down within 90 days,” Eschbach said.
The new directive reflects a broader reorientation of OFCCP’s role. Eschbach stated that she was committed to “carrying out President Trump’s executive orders, which will restore a merit-based system to provide all workers with equal opportunity.”
Prior to her appointment, Eschbach worked for six years in Morgan, Lewis & Bockius LLP’s appellate group, focusing on complex constitutional, statutory, and administrative law issues. In that role, she worked to limit the government’s reach, “including issues affecting OFCCP.”
It is unclear if OFCCP still has authority to review DEI activities of federal contractors after the rescission of EO 11246. Federal contractors may want to review their DEI initiatives, EO 11246 affirmative action programs, and broader compliance strategies in light of this leadership change and shifting enforcement priorities.
Layoffs at the Dept. of Education May Impact Office for Civil Rights Enforcement
On the evening of March 11, 2025, civil servants at the U.S. Department of Education’s offices in Washington, D.C. and throughout the country began receiving reduction in force notices. The Department announced that affected staff are expected to be put on administrative leave starting March 21, 2025 and their last day will be June 9, 2025.
While the Department has reiterated the importance of colleges and universities complying with federal antidiscrimination laws, including Title VI, through recent Dear Colleague Letters, Q&As, and enforcement actions in recent weeks – one of the offices most heavily impacted by Tuesday’s workforce reduction was the Department’s Office for Civil Rights (OCR).
OCR is tasked with enforcing the following federal civil rights laws at colleges and universities that receive federal financial assistance (as well as public elementary and secondary schools):
Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, and national origin;
Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex;
Section 504 of Rehabilitation Act of 1973, which prohibits discrimination based on disability;
Title II of the Americans with Disabilities Act, which prohibits discrimination based on disability by public entities; and
The Age Discrimination Act of 1975, which prohibits age discrimination.
OCR enforces these laws through directed investigations and compliance reviews, but mostly by responding to and investigating complaints of discrimination filed by anyone who believes that a college or university has discriminated against someone based on race, color, national origin, sex, disability, or age.
By Wednesday, March 12, 2025, it was reported and confirmed by the Department of Education that the Department’s reduction in force materially impacted seven of OCR’s 12 regional offices. As a result, OCR regional offices in Boston, New York, Philadelphia, Chicago, Cleveland, Dallas, and San Francisco may be closed. These regions investigate complaints against colleges and universities (and public elementary and secondary schools) in 25 states and 2 U.S. territories.
The impact is already being felt. Staff in the affected regional offices can receive emails, but can no longer respond to emails, make phone calls, or conduct video conference. Staff are expected to start administrative leave on or around March 21, 2025, and are supposed to have transferred their case loads to other career civil servants or political appointees by then.
On Thursday, March 13, 2025, Attorneys General from 20 states and the District of Columbia filed a lawsuit in federal court challenging the staff terminations at the Department of Education and requesting injunctive relief. In State of New York, et al. v. McMahon, et al., 1:25-cv-10601 (D. Mass), among other claims, the states allege that the reduction in force will hobble the Department’s ability to perform it statutorily-mandated functions, including enforcing federal civil rights laws.
Given that OCR announced one day before the reduction in force the importance of its Title VI antisemitism enforcement actions against 60 colleges and universities, key questions for colleges and universities in the affected regions are:
Who do we contact about pending cases?
Will scheduled meetings, interview, and on-site investigations go on as planned?
Where do we send in the college’s data response, if one is due?
Will a pending case still be processed by OCR and what process will OCR use?
The last question is one that higher education and civil rights attorneys have been watching carefully. Colleges and universities are used to relying on OCR’s Case Processing Manual (last updated February 19, 2025) to understand their rights and resolution options at the Office for Civil Rights. But what if OCR or the Department of Education is closed? Will responsibilities be transferred to the Department of Justice? Will individual states pick up oversight if one of their state laws apply? Or will complainants take their concerns not to a federal or state agency, but to a court?
BREAKING NEWS: OFCCP to Revisit Previously Submitted Contractor Files
The Wall Street Journal is reporting newly appointed OFCCP Director Catherine Eschbach announced to OFCCP staff that the Agency will review federal contractor affirmative action plans previously submitted to the Agency for evidence of discriminatory employment practices. The report quotes Director Eschbach’s email to staffers in which she states
…most of what OFCCP had been doing was out of step, if not flat out contradictory, to our country’s laws, and all reform options are on the table.”
It is unclear at this time what form these reviews will take or which contractors may be under review.
Importantly, the plans under review were submitted to OFCCP under the prior Executive Order 11246 and before the current administration’s recent issuance of Executive Order 14173, revoking EO11246.
This is a developing story so stay turned for further details.
DEI Changes Could Leave Businesses Exposed to Discrimination Charges
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) are warning employers that certain “diversity, equity, and inclusion” (DEI) policies and training programs could violate Title VII of the Civil Rights Act of 1964 by discriminating against a person’s race, sex, or other protected characteristics in employment matters.
The EEOC and DOJ recently issued two technical assistance documents titled What You Should Know About DEI-Related Discrimination at Work and What to Do If You Experience Discrimination Related to DEI at Work, in which the EEOC explains that different treatment based on any protected characteristic can be discriminatory, and “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” The EEOC goes on to state that it applies the same standard of proof to all race discrimination claims, regardless of the claimant’s race. This comes after President Trump announced that he is committed to ending “discrimination under DEI policies” and the practice of engaging in “blatant race-based and sex-based discrimination, including quotas.” These sentiments are echoed by EEOC Acting Chair Andrea Lucas. “Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination,” said Lucas.
WHAT EMPLOYER ACTIONS ARE UNLAWFUL?
The EEOC explained that an employer policy, program or initiative may be unlawful if it involves an employment action motivated by race, sex, or another protected characteristic. That includes: hiring; firing; promotions; demotions; compensation; fringe benefits; access to or exclusion from training (including training characterized as leadership development programs); access to mentoring, sponsorship, or workplace networking; internships (including internships labeled as “fellowships” or “summer associate” programs); selection for interviews, including placement or exclusion from a candidate “slate” or pool; and job duties or work assignments. This extends to workplace groups like Employee Resource Groups, Business Resource Groups, or other employee affinity groups that are based on members’ protected categories like women-only groups.
Notably, an employment action is unlawful even if race, sex, or another protected characteristic was just one factor contributing to the employer’s decision or action—it does not have to be the deciding factor. Additionally, client or customer preference is not a defense to race or color discrimination; business interests in diversity and equity, including perceived operational benefits or customer/client preference are not enough to allow race-motivated employment actions.
Employers should also be aware of potential hostile work environment claims. The EEOC states that employees may be able to plausibly allege that a diversity/DEI training creates a hostile work environment if they can show the training was discriminatory in its content, context, or application.
Finally, it is important to recognize that employees who oppose or complain about employer policies, trainings, or practices labeled as “DEI” can also be legally protected from retaliation.
POTENTIAL SUPREME COURT REVERSE DISCRIMINATION RULING
The Trump Administration’s approach to the standard of proof for reverse discrimination claims may soon be backed by the courts. On February 26, 2025, the U.S. Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Services. In that case, a heterosexual woman alleged she was passed over for a promotion and later demoted in favor of a LGBTQ+ colleague. Ms. Ames stated she was discriminated against because she was not gay and made a claim of reverse discrimination. Legal precedent in some circuits require plaintiffs in reverse discrimination cases to meet a higher burden than that of a traditional discrimination case. Legal experts have predicted that the Court will find that reverse discrimination cases should be decided based on the same standard, which would make it easier to allege and prove reverse discrimination.
In light of these recent developments, reverse discrimination cases are expected to increase. Employers should review their policies, training programs, and hiring programs to ensure they are in compliance with the EEOC’s guidance and anticipated ruling in the Ames case.
EEOC Enforcement Activities Take Shape Under Second Trump Administration
The Equal Employment Opportunity Commission (EEOC) has been a regular topic of the flurry of executive orders issued by President Trump since his inauguration. Even before his return to the Oval Office, there was speculation about how the EEOC’s enforcement activities and priorities might change during a second Trump administration, as well as how the composition of the EEOC’s leadership would likely transform. In the weeks following the inauguration, the EEOC’s goals began to take shape, with its leadership seeing significant rearrangement. Manufacturers should stay current on these modifications as they signal substantial changes in the agency’s policies and anticipated future enforcement priorities and initiatives.
On January 24, 2025, President Trump dismissed two of the EEOC’s Democratic Commissioners and appointed Andrea Lucas as Acting Chair, leaving one Democratic Commissioner and one vacancy. The EEOC’s current leadership composition means it lacks a quorum and cannot issue regulations or guidance, or rescind or replace regulations or guidance issued by the previous administration. Importantly, these changes do not affect the EEOC’s ability to engage in enforcement activities.
Prior to President Trump’s second term, it was anticipated that the EEOC was preparing to scale back protections for LGBTQ+ workers. This shift came to fruition beginning in February, when the EEOC moved to voluntarily dismiss six lawsuits that it had filed during the Biden administration on behalf of aggrieved plaintiffs, alleging discrimination based on transgender status in violation of Title VII of the Civil Rights Act of 1964. In withdrawing from its representation, the EEOC noted in filings that continued litigation is untenable “in light of recent [a]dministration policy changes.” The EEOC’s voluntary dismissal of the lawsuits represents a major departure from its prior interpretation of the protections afforded under Title VII and its guidance issued during the Biden administration, in which the EEOC took the position that the intentional misuse of an employee’s preferred pronouns constituted discrimination and harassment.
Although the EEOC has chosen to step back from its representation of the plaintiffs in these lawsuits, the same federal law that authorizes the EEOC to sue on their behalf also provides the plaintiffs with a right to intervene in and pursue the litigation on their own behalf.
In light of these developments, manufacturers should remain aware of the following when making decisions related to the recruitment, hiring, and termination, as well as other terms and conditions of employment:
Although the EEOC may change its enforcement priorities, an executive order cannot override federal laws and constitutional rights. This includes the federal law authorizing individuals to intervene in litigation brought by the EEOC and pursue litigation on their own behalf as well as the Supreme Court’s holding in Bostock v. Clayton County, 590 U.S. 644 (2020), that discrimination based on sexual orientation or gender identity constitutes “sex discrimination” in violation of Title VII.
The federal government’s labor and employment law enforcement activities and policies are separate from those of state and local governments, which may continue or even increase their efforts in reaction to changes at the federal level.
It is possible that the EEOC’s enforcement activities will continue to change, so it is crucial for manufacturers to stay current on executive orders, guidance, and enforcement initiatives at the federal level.
Manufacturers should consult competent employment counsel for assistance with regard to the EEOC’s enforcement initiatives, guidance, and other communications.