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), the agency charged with overseeing regulation and enforcement of affirmative action laws for government contractors and subcontractors. Eschbach signaled a shift in the agency’s mission, stating the OFCCP “will restore a merit-based system to provide all workers with equal opportunity.”

In a follow-up email to her staff, Eschbach stated that “all reform options are on the table” and described much of the OFCCP’s historic enforcement as “out of step, if not flat out contradictory, to our country’s laws.” These comments from Eschbach signal a potential sea change in how the OFCCP approaches affirmative action compliance—especially in the wake of the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which has spurred increased scrutiny of diversity, equity, and inclusion (DEI) programs across both public and private sectors.

OFCCP’s New Stated Enforcement Priorities

According to Eschbach, the following are among OFCCP’s new priorities:

  • Mandating federal contractors to “wind down” unlawful DEI and affirmative action plans (AAPs) and practices within 90 days of the rescission of Executive Order 11246. As such, after April 21, 2025 (91 days after the rescission of Executive Order 11246), the OFCCP plans to verify and implement all enforcement options to ensure compliance with this announcement;
  • Reviewing previously submitted AAPs for indicators of unlawful discrimination and determining whether further investigation and enforcement actions are needed;
  • Investigating DEI programs across publicly traded corporations, large non-profit associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion;
  • Scrutinizing OFCCP’s own authority under VEVRAA and Section 503 of the Rehabilitation Act for enforcement related to veterans and workers with disabilities; and
  • Documenting compliance costs under prior DEI frameworks and assessing the legality of prior disparate impact enforcement.

Executive Order 11246 in the Crosshairs

Among the most notable developments is Director Eschbach’s indication that the agency will focus on its regulations and enforcement practices following the President’s rescission of Executive Order 11246 on January 21, 2025. E.O. 11246 has served as the cornerstone for OFCCP’s authority to require AAPs from federal contractors and subcontractors. Although the Executive Order has been rescinded, many of its implementing regulations technically remain in effect until formally withdrawn or replaced, creating legal uncertainty about ongoing obligations, such as the collective of applicant EEO data. This signaled focus on E.O. 11246 suggests the OFCCP may soon initiate rulemaking to revise or rescind existing regulations tied to E.O. 11246.

Affirmative Action Plan Audits and DEI Enforcement

Eschbach stated that the OFCCP will begin verifying whether contractors have properly wound down their use of AAPs within 90 days, and whether the action plans in existing or previously submitted AAPs reflect unlawful preferences. She further suggested that these plans may be used to identify targets for enforcement audits—raising the possibility of a new wave of government investigations focused on whether Whites and males have been the subject of discrimination and the legality of DEI practices.

These potential OFCCP audits mirror similar efforts at the EEOC, which has also indicated a desire to examine whether employer DEI initiatives run afoul of Title VII, as reflected in the 20 investigatory letters issued by Acting EEOC Chair Andrea Lucas to large law firms.

Veterans and Individuals with Disabilities

The OFCCP indicated it will focus on its enforcement obligations under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), which protects veterans from job discrimination and requires federal contractors to set benchmarks for hiring protected veterans. The OFCCP will also focus its enforcement efforts on Section 503 of the Rehabilitation Act, prohibiting the federal government and federal contractors from discriminating against employees based on their disability.

In addition to these enforcement efforts, the OFCCP will also determine if “new rulemaking is necessary” and whether investigation and enforcement actions are “best housed” within OFCCP.

Litigation Update: Certification Requirement Enjoined

Notably, federal contractors under the Department of Labor are, at least temporarily, no longer required to certify their affirmative action compliance through the OFCCP’s Contractor Portal. The certification mandate—initially introduced as part of OFCCP’s increased accountability measures—was recently enjoined by a federal court in Chicago Women in Trades v. OFCCP, casting further doubt on the agency’s ability to enforce AAP compliance under its current legal framework.

Ballard Spahr’s Labor and Employment Group frequently advises employers on issues related to labor employment and policy. We will continue to monitor the new Administration’s agenda and the impact of further anti-discrimination laws and interpretation. Please contact us if we can assist you with these matters.