Former DOL Officials Urge Federal Contractors to Continue Lawful Diversity Practices Despite Trump Administration’s Efforts to End DEI

Quick Hits

• A group of former U.S. Department of Labor officials is urging federal contractors to maintain their voluntary diversity practices despite the Trump administration’s revocation of Executive Orders supporting affirmative action and anti-discrimination efforts.
• The officials assert that continued diversity, equity, and inclusion programs are essential for compliance with federal laws and for promoting equal opportunity in the workplace.

The open letter, signed by ten former DOL officials, argued President Donald Trump lacks authority to end voluntary programs designed to promote compliance with federal, state, and local antidiscrimination laws, including Title VII of the Civil Rights Act of 1964. The letter said federal contractors “should carefully weigh the risks of backing away from employment practices to promote equal opportunity for all. “

The open letter addressed President Trump’s January 21, 2025, EO 14173, which seeks to end “illegal” DEI and diversity, equity, inclusion, and accessibility (DEIA) programs. The order revoked the former EO 11246, which had prohibited discrimination by federal contractors based on race, color, religion, and national origin, and it stripped the Office of Federal Contract Compliance Programs (OFCCP) of much of its authority to enforce federal contractors’ compliance with federal laws and regulations requiring nondiscrimination.

Additionally, the letter comes after statements from newly appointed OFCCP Director Catherine Eschbach, calling OFCCP’s prior activities “contradictory to the nation’s laws” and indicating the agency is considering enforcement actions to “deter DEI programs and principles.”

However, the former DOL officials argued that President Trump’s actions contradict well-established laws, override congressional mandates to prevent discrimination, violate due process and free speech, and seek to retroactively impose liability on contractors for their good faith efforts to comply with EO 11246 prior to its revocation. They further questioned whether OFCCP even has the authority to investigate and take enforcement actions against contractors for their DEIA programs, particularly following the revocation of EO 11246.

“Because the Administration’s actions are legally unsound and harmful to workers, employers, and America’s economy, we urge federal contractors to carefully evaluate how they can best achieve the equal opportunity commitments they have made through their diversity, equity, inclusion, and accessibility programs,” the letter said. “These programs not only serve important business and risk management objectives, but also uphold fundamental civil rights protections and promote fair treatment and opportunity for all workers.”

The open letter was signed by former OFCCP Directors Jenny R. Yang, 2021-2023, and Patricia A. Shiu, 2009–2016, and joined by Pamela Coukos, OFCCP senior advisor 2011–2016; Donna Lenhoff, OFCCP senior civil rights advisor from 2011–2017; Seema Nanda, solicitor of labor 2021–2025; Patrick O. Patterson, OFCCP deputy director 2014–2017; Maya Raghu, OFCCP deputy director, policy 2021–2023; Dariely Rodriguez, OFCCP chief of staff 2021–2022; M. Patricia Smith, solicitor of labor 2010–2017; and Shirley J. Wilcher, deputy assistant secretary for OFCCP 1994–2001.

‘Lawful and Effective Tools to Ensure Equal Opportunity’

The former DOL officials argued in the letter that federal contracts may and should continue voluntary diversity efforts. The letter pointed to specific practices followed by some leading employers to prevent discrimination:

1. Proactive Barrier Analyses—The open letter urged contractors to continue self-assessments that identify and remove obstacles to equal employment opportunity, such as examining hiring processes to understand why qualified candidates with certain backgrounds are rejected. The letter argues that such analyses remain fully lawful and prevent discrimination.
2. Collecting and Analyzing Workforce Data—The letter said that despite the revocation of EO 11246, federal contractors “should continue to collect and analyze applicant flow and workforce data.” Such collection is “a critical part of determining whether an employer has unlawful employment practices,” the letter said.
3. Well-Crafted Benchmarks—The letter further argued that “well-crafted benchmarks or aspirational goals” remain a “useful tool for employers.” Such appropriate benchmarks should be based on an analysis of the labor pool, “realistic goals” based on the necessary qualifications and location, and safeguards to ensure that job decisions are still focused on qualifications, skills, and merit without excluding qualified candidates based on protected characteristics. The letter said such benchmarks “are not quotas and are not discriminatory.

Next Steps

The Trump administration’s scrutiny of DEI and DEIA programs has caused some uncertainty for federal contractors and other private employers. The former DOL officials’ letter argues that certain programs may be lawful and further antidiscrimination compliance.

The letter comes after a similar letter by a group of former U.S. Equal Employment Opportunity Commission (EEOC) officials, which also included former OFCCCP Director Yang. That letter argued that many employer diversity programs could remain lawful, including antidiscrimination and harassment training, employee resource groups/affinity groups, broad-based recruitment efforts, and data collection, if certain safeguards are followed,

Still, given the uncertainty, employers may want to review or audit all their existing DEI or DEIA programs or initiatives to determine if they align with lawful practices under applicable federal antidiscrimination laws. As part of such reviews, employers may consider internal analysis or assessments conducted under the protection of attorney-client privilege. Additionally, employers may want to consider conducting proactive, privileged, and voluntary analyses of certain workforce analytics to ensure compliance with federal, state, and local laws.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, and Governmental Affairs blogs as additional information becomes available.

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