The Future of OFCCP: From Legal Challenges to Policy Realignment

Over the past several weeks since the election, there's been a lot of discussion about the potential fate of OFCCP in the new administration.

Setting aside the change in administration, there have been a number of recent legal challenges to OFCCP’s authority. We brought one of those challenges in 2019. We filed suit on behalf of our client, Oracle, under the Administrative Procedures Act, challenging the constitutionality of OFCCP’s enforcement procedures. And although that matter was resolved prior to any decision on the merits, that legal challenge, that underlying issue is still out there. More recently, a federal judge in Texas granted a preliminary injunction preventing an OFCCP enforcement action from moving forward on the basis that the administrative law judge, the ALJ, who would be overseeing that enforcement action, was unconstitutionally protected from removal in violation of Article II of the Constitution.

And then there is also an issue of whether OFCCP's ability to collect back pay or to award back pay and front pay damages in enforcement actions violates the Seventh Amendment's right to a jury trial. This is an issue that the U.S. Supreme Court recently addressed in the context of the SEC, in a case called SEC v. Jarkesy. So there are a number of legal challenges out there even setting aside the change in administration. These legal challenges stem largely from the fact that most of OFCCP’s authority derives from an executive order, Executive Order 11246, and not from any act of Congress. Now, this executive order was signed in 1965 by President Johnson. So at this point in time, it's fairly dated.

So, depending on who you talk to, some people say that dismantling OFCCP altogether is exactly the type of act that the Trump administration and the newly formed Department of Government Efficiency, or DOGE, would say increases government efficiency and streamlines the government.

But then there are others, including me, who think it is more likely that OFCCP will not cease to exist altogether, but instead will be repurposed to be more closely aligned to the policy objectives and priorities of the new administration. The momentum against affirmative action was already underway even before the election results dating all the way back to the 2023 Supreme Court decision in the SFFA case, in which the Supreme Court struck down the affirmative action policies of Harvard and UNC in the college admissions setting. And even though the laws are different and the settings are different, that decision has shown a spotlight on affirmative action in the employment context. And coupled with the anti-DEI movement that has been growing in this country since that decision, I do think that it is likely that in the new administration, the federal contractor affirmative action requirements are likely to end.