The Department of Labor announced today that Catherine Eschbach is the new OFCCP Director. The press release quotes Director Eschbach as saying –

President Trump made clear…that EO 11246 had facilitated federal contractors adopting DEI practices out of step with the requirements of our Nation’s civil rights laws…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.

From the Wall Street Journal, we have learned Director Eschbach, in a memo to OFCCP staff, indicated OFCCP’s efforts have been “…out of step, if not flat out contradictory, to our country’s laws, and all reform options are on the table.”

One reform is Director Eschbach’s reported intention to reopen prior audits to search for discriminatory employment practices.

We will be examining federal contractors’ previously submitted affirmative action plans to determine whether they indicate the presence of longstanding unlawful discrimination and whether it is appropriate for OFCCP to undertake any investigation and enforcement actions or refer the matter to other agencies with jurisdiction to investigate and/or initiate enforcement actions.

This may mean OFCCP investigations of statistical evidence of adverse impact against whites and males, or pay disparities to their disadvantage. Likewise, where contractors submitted documents and descriptions regarding their diversity, equity, and inclusion programs, those also may draw scrutiny.

While Director Eschbach’s statements don’t yet paint a full picture, it appears President Trump’s Administration has decided to keep OFCCP “alive” and to deploy the Agency as an enforcer of Executive Order 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity – with a particular focus on “unlawful DEI”.

We will provide updates as events continue to develop.

If you have questions, simply reply to this Alert or contact the Silberman Law legal professional with whom you work.