With President Trump’s second administration set to begin on January 20, 2025, federal contractors and subcontractors are anxiously awaiting what he might do with respect to the Office of Federal Contract Compliance Programs (“OFCCP”) and the employment obligations imposed on federal government contractors. While the Trump transition team has not signaled exactly what is in store, it seems likely that changes are coming. Below we provide some thoughts on what might occur. 

Of course, once President Trump takes office, we will be monitoring developments closely and alerting our readers here. Stay tuned! 

Looking Back at Trump 1.0

To set the stage, when President Trump first took office in 2017, many predicted the end of OFCCP. In some ways, the precise opposite occurred. Under then-Director Craig Leen, OFCCP was incredibly active during the Trump Administration, issuing over a dozen Directives and multiple new regulations, instituting new types of audits, and obtaining record recoveries for employees.

Even so, OFCCP during President Trump’s first term took an approach that was widely seen as contractor-friendly, establishing procedures that provided contractors with more transparency and consistency in their dealings with OFCCP. Many of those efforts were rescinded by the Biden administration.

Other efforts during this period were more controversial. OFCCP expanded the existing exemption to religious entities’ compliance with the anti-discrimination provisions of Executive Order 11246 by adding new definitions to “clarify the scope” of EO 11246’s religious exemption. In addition, toward the end of his administration, President Trump issued Executive Order (“EO”) 13950, which prohibited federal contractors from including certain concepts in their diversity trainings, including concepts commonly covered in unconscious bias and social privilege trainings. Both of these measures were eliminated by the Biden administration.

What Could Happen During Trump 2.0?

As noted above, the Trump transition team has not revealed plans for OFCCP in the new administration, and predictions about what President Trump would do to OFCCP at the outset of his first administration proved to be wrong. However, there are a number of potential outcomes contractors should look out for.

The End of Executive Order 11246?

Project 2025, a policy blueprint prepared “by over 100 respected organizations from across the conservative movement,” and which has been popularly associated with the incoming administration, proposes several measures to limit OFCCP’s scope – including rescinding EO 11246. This is something President Trump could do with a stroke of a pen on Day 1, and in so doing eliminate OFCCP’s race and sex equal employment and affirmative action obligations imposed on federal contractors.

It is also possible President Trump may not rescind EO 11246, but instead limit its scope. Currently, employment obligations are imposed on contractors with contracts as low as $10,000, and more onerous requirements – such as creating affirmative action programs – are triggered by contracts as low as $50,000. Raising those limits, which have been in place for decades, would lessen the burden on smaller contractors and allow the agency to focus its resources on larger contractors.

In addition, some have speculated that OFCCP under the new Trump Administration may pivot to focus on discrimination with respect to traditionally advantaged groups (i.e., men and whites).

Reinstatement of Executive Order 13950

Many speculate that President Trump will reinstate the controversial Executive Order on Combating Race and Sex Stereotyping, which President Biden rescinded shortly after taking office in January 2021. As we previously reported, this order required that new contracts entered into with the federal government include a clause prohibiting federal contractors from including certain concepts in their diversity and awareness trainings – including concepts “that:

• One race or sex is inherently superior to another race or sex;
• An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
• An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
• Members of one race or sex cannot or should not attempt to treat others without respect to race or sex;
• An individual’s moral character is necessarily determined by his or her race or sex;
• An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
• Any individual should feel discomfort, guilt, anguish, or any form of psychological distress on account of his or her race or sex; or
• Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.”

The order referenced various existing government DEI trainings as examples of trainings that “perpetuate racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint… [and] have no place in programs and activities supported by Federal taxpayer dollars.” This is also something President Trump could do on Day 1, and seems likely given statements made by President Trump and his transition team regarding DEI initiatives.

Reinstatement of Religious Exemption Rule

Another likely possibility under the incoming administration is the DOL’s reinstatement of the final rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” As we previously reported, the rule clarified the scope of OFCCP’s religious exemption and arguably expanded the scope of EO 11246’s existing exemption for religious entities’ compliance with its anti-discrimination provisions. 

Return to Contractor-Friendly Enforcement Provisions

If OFCCP survives, it may reinstitute contractor-friendly enforcement procedures. For example, under the first Trump administration, OFCCP issued a rule – Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures To Resolve Potential Employment Discrimination – which set forth procedures before OFCCP could issue notices of violation (“NOV”) aimed at increasing the transparency of the process and providing contractors with adequate time and information to respond to initial findings prior to the issuance of any NOV. That rule, along with other administrative actions aimed at increasing transparency and fairness, were eliminated by the Biden administration. It is likely OFCCP under the next administration will reinstitute those policies and procedures.

Potential OFCCP-EEOC Merger

It is possible that OFCCP may find a new home within another department or be dismantled altogether. As we previously reported, President Trump’s last term included a failed budget proposal to combine OFCCP and the Equal Employment Opportunity Commission (“EEOC”). 

Conclusion

While we do not know what exactly will happen to OFCCP once President Trump re-takes office, it seems all but assured that changes are coming. It is important for federal contractors to stay on top of developments and make any necessary adjustments.