OFCCP Request for DEI Info Poses Risks for Companies

A recent request by the Office of Federal Contract Compliance Programs (OFCCP) for information from federal contractors related to affirmative action and DEI programs carries potential legal risks for respondents.

Why it matters: Information provided voluntarily to the OFCCP could be used by the government, including the EEOC, to target companies over perceived “unlawful” DEI practices.

Background: President Trump’s Executive Order 14173 ended most affirmative action requirements for federal contractors and required contractors to wind down any affirmative action plans and related efforts by April 21, 2025.

• At the end of last month, the OFCCP circulated a letter  to federal contractors asking that they voluntarily provide information by September 25 on how they wound down their affirmative action efforts in compliance with EO 14173.

• The OFCCP letter suggests that companies consider providing information on how they are discontinuing practices such as placement goals, targeted recruitment, sponsorship programs, leadership development programs, tying executive compensation to meeting DEI goals, and employee resource groups, among many other practices.

A wolf in sheep’s clothing? Although the request is ostensibly linked to affirmative action plan requirements under EO 11246—which was rescinded by President Trump—the letter’s suggested disclosures clearly extend to general company DEI initiatives, which are typically separate from affirmative action obligations.

• The broad information request suggests that one purpose of the letter is to catalogue information on company DEI efforts to inform the administration’s ongoing anti-DEI campaign. 

How would the information be used? Neither the letter, the OFCCP, nor its Director Catherine Erschbach, have specified how the agency will use information that is voluntarily provided by federal contractors.

• Notably, the OFCCP and the EEOC—the administration’s primary mechanism for challenging private sector DEI efforts—have an information-sharing agreement that allows the EEOC to access data submitted by contractors to the OFCCP.

• The OFCCP could use the information to help the EEOC or DOJ target individual companies deemed as having “unlawful” DEI practices--for enforcement or to blacklist from future federal contracts.

• Given the Trump administration’s plan to fully shut down OFCCP in the coming months, it is especially likely that the information will be used by other agencies.

Employer Considerations:

1. Federal contractors should weigh the considerable risk of voluntarily submitting information to the OFCCP given that the agency has provided no guarantee on how the information will be used.  

2. The information is likely to be shared with or accessed by other agencies like the EEOC who could then use it for enforcement purposes or as part of a public shame campaign.

3. Declining to respond carries its own risk of potential pushback from the administration, although this risk would appear to be considerably less than those created by submitting information.