In an open letter to contractors, Catherine Eschbach, Director of the Office of Federal Contract Compliance Programs, offers contractors the opportunity to explain how they have wound down compliance with Executive Order 11246 and its regulatory scheme.

In her June 27 letter, Director Eschbach reminds contractors that President Trump rescinded Executive Order 11246 and directed contractors to stop complying with it by April 21. 

Director Eschbach states,

Although OFCCP’s regulations expressly prohibited unlawful discrimination or disparate treatment and stated that the regulatory placement goals should not operate as quotas — functionally, many federal contractors improperly engaged in such conduct in reaction. In short, these regulations requiring that federal contractors engage in workforce balancing and use placement goals to benefit certain individuals may have led contractors to engage in unlawful disparate treatment based on race and sex in hiring and employment decisions.

In addition to rescinding Executive Order 11246, President Trump’s Order directed the OFCCP to cease “allowing or encouraging [contractors] to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” To that end, Director Eschbach said in her June 27 letter, “OFCCP now offers federal contractors the opportunity to provide information about their efforts to wind down compliance with the EO 11246 regulatory scheme and ensure full compliance with the Nation’s non-discrimination laws.” The OFCCP invites contractors to provide a narrative regarding “what actions they have taken in response to EO 14173.”

Director Eschbach reiterates several times that providing information is voluntary. She does not explain any of the following:

• How the OFCCP will use the information submitted by contractors.
• What benefit a contractor would gain by providing the information.
• Whether the information submitted is subject to disclosure in response to a Freedom of Information Act request.
• Whether the OFCCP will share the information with any other federal agency, such as the Department of Justice or the Equal Employment Opportunity Commission.
• How the OFCCP has authority to engage in any activity related to Executive Order 11246 now that it has been rescinded.
• Whether contractors would be provided a safe harbor for volunteering information regarding past practices that the administration now considers unlawful.
• Whether the OFCCP might use the information to open an investigation into a contractor’s employment practices.

With so many potential downsides and no apparent upside, it is unclear why a contractor would voluntarily provide any information to the OFCCP regarding its past compliance with Executive Order 11246 and any changes that it has implemented since the issuance of President Trump’s Executive Order.

The OFCCP will be accepting these voluntary disclosures for 90 days. Director Eschbach’s letter states that instructions regarding how to make submissions are available on the Contractor Portal. However, no instructions currently appear on the Portal landing page.

Contractors should consult counsel regarding whether it is advisable to submit any information to the OFCCP, and if so, what content should be provided. Please contact any attorney in Constangy’s EEO/Contractor Compliance, Reporting & Data Analytics Practice Group for assistance.