On 7/1/2025 the U.S. Department of Labor (DOL) submitted a rescission of the Office of Federal Contract Compliance Programs (OFCCP) regulations to the Office of Management and Budget (OMB). This rescission complies with the requirements of Executive Order 14173 which revoked Executive Order 11246, the affirmative action executive order. These regulations are the next-to-final nail in the affirmative action Executive Order 11246 coffin.
With respect to the disability requirements, the DOL proposes to eliminate self-identification data collection and utilization analysis for individuals with disabilities. The proposal does not remove contractors’ obligations to assess the effectiveness of their outreach efforts.
The DOL, in their discussion of the proposed recession, notes how the regulations require non-construction Federal contractors with 50 or more employees to develop and maintain a written AAP for each of their establishments. 41 CFR 60-2.1(b). It also points out that the regulations specify that any contractor that fails to develop and maintain a written AAP for each of its establishments is not in full compliance with Executive Order 11246, as amended. Moreover, the regulations also specify the purpose and contents of AAPs. 41 CFR 60-2.10.
The proposed recission also eliminates a number of other sections such as the affirmative action requirements for construction contractors at 41 CFR part 60-4 and other requirements such as incorporating the Uniform Guidelines of Employee Selection Procedures in 41 CFR part 60-3, plus a host of other requirements such as 41 CFR 60-20 Discrimination on the basis of sex and more.
The DOL’s rational for the recission of these regulations follows a line of thought that affirmative active will discriminate in favor of one group over another, which is contrary or anathema to the equal protection clause under the 5th and 14th Amendments to the U.S. Constitution. Specifically, the reasoning states:
Affirmative action requirements like these that place a finger on the scale for an applicant based on their race or sex—without any showing of actual discrimination potentially meriting remedial action. . . . Regulations that incentivize and induce adopting practices that can induce or incentivize disparate treatment in employment decisions based on race or sex, “cannot be reconciled with the guarantees of the Equal Protection Clause.” . . . DOL's rationale for why it was constitutionally permitted to impose these affirmative action requirements has relied on the theory that, in the absence of discrimination, an employer's workforce should look like the available area labor force, even absent any express showing that discrimination caused the differences in rates of employment based on race or sex. DOL's rationale does not support imposing affirmative action requirements under the standards in recent case law, much less only for women and minorities but not men or white persons. And, even if the use of placement goals or action-oriented measures could potentially be justified on a theory of underutilization of employees of a particular race or sex, there is no legal justification for limiting the placement goals and action-oriented measures to only women and minorities.
Therefore, the elimination of the EO 11246 regulations eliminates government sanctioned discrimination.
What does this mean for federal contractors? First, the AAP requirements are officially eliminated and the only concern they should have in employment activity is fairness and hiring and promoting the most qualified. With respect to discipline and terminations, they should monitor fairness and trends. EEO considerations are still in play. Demographic considerations are still in play for EEO-1 as well as various state requirements (e.g. California, Illinois, etc.) and collection and analysis of demographic data could lead to dismissal of EEO charges and lawsuits.
The Veteran and Disabled AAPs at this time are still required. Further, if the democrats retake congress and the white house, they will have to start (and likely will) from scratch to reinstate any and all eliminated requirements.
Source: Jackson Lewis 7/1/2025