This post was co-authored by Labor + Employment Group lawyer Madison C. Picard.

On January 21, President Trump signed an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the Order), revoking Executive Order 11246, the long-standing order that required federal contractors to engage in affirmative action, including by annually developing Affirmative Action Plans (AAP’s) concerning women and minorities. The Order further mandates that the Office of Federal Contract Compliance (OFCCP) immediately cease promoting diversity, investigating federal contractors for affirmative action compliance, and allowing or encouraging federal contractors to engage in workforce balancing.

Below are several key points that manufacturers who are federal contractors need to know:

  • Federal contractors are no longer required to create an AAP about women and minorities. However, this Order does not impact the affirmative action obligations stemming from the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) for protected veterans or the obligations under Section 503 of the Rehabilitation Act of 1973 for individuals with disabilities. Further, this Order does not absolve contractors of any obligations they may have under state law if they are also state contractors or any other applicable legal obligations.
  • The Order prohibits federal contractors from considering “race, color, sex, sexual preference, religion, or national origin in their employment, procurement or contracting practices in ways that violate the [n]ation’s civil rights laws.” Additionally, the Order states that federal contract recipients will be required to certify that they do not operate diversity, equity, and inclusion (DEI) programs “that violate any applicable Federal anti-discrimination laws.” Importantly, this does not wholly prohibit employers from havingDEI-related policies and practices; rather, it prohibits only those that could be found to violate anti-discrimination laws, such as race-based quotas.
  • The Order provides contractors with a 90-day grace period during which they may continue to comply with the original regulations. Contractors should use that time to audit their policies and practices under attorney-client privilege to evaluate compliance with this order.

In addition, manufacturers that are not federal contractors may also be impacted by this Order. The Order scrutinizes DEI efforts in the private sector and requires federal agencies to, among other things, report a list of large corporations and organizations that should be subject to civil compliance investigations based on unlawful DEI programs. Accordingly, manufacturers may also want to consult with legal counsel about their DEI initiatives to ensure they are lawful.

Photo of Abby Warren Abby Warren

As an attorney in Robinson+Cole’s Labor, Employment, Benefits + Immigration Group, I represent manufacturers in all areas of labor and employment law.  This includes discharge and discrimination issues, workplace investigations, affirmative action compliance, employee discipline, wage and hour issues, disability and reasonable accommodation…

As an attorney in Robinson+Cole’s Labor, Employment, Benefits + Immigration Group, I represent manufacturers in all areas of labor and employment law.  This includes discharge and discrimination issues, workplace investigations, affirmative action compliance, employee discipline, wage and hour issues, disability and reasonable accommodation, family and medical leave, unemployment, training, and defense in federal and state court and before administrative agencies. My full firm bio can be accessed here.

I represent manufacturers in the aerospace, consumer goods, machinery and other industries, which involves identifying practical, cost-effective and realistic solutions that prioritize and solidly execute the client’s objectives.  Manufacturers face unique challenges stemming from compliance with ever-changing industry regulations, including those impacting federal contractors.  Early in my career, I toured a client’s facility facing union-related struggles and realized that only through observing the workplace on the ground level can an attorney successfully understand and represent businesses.  As an employment attorney, I work alongside clients as a true partner to further their key personnel and human resources goals, including efficient and safe operations, recruitment and retention of talent, diversity and inclusion, among other issues. Whether advising on a leadership transition or on compliance with wage payment laws, the aim is always the same – to solve problems so clients can focus their attention on doing what they do best – manufacturing.

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