By Keli Wilson
BLOG OVERVIEW: Following President Trump's Executive Order 14173, federal contractors face significant changes to equal employment opportunity compliance requirements. While federal agencies continue submitting annual MD-715 reports to the Equal Employment Opportunity Council, federal contractors await certification guidance for the new executive order. MD-715's barrier analysis framework offers a voluntary model for contractors to proactively identify and address employment policies that may limit equal opportunity, potentially serving as a compliance preparation tool until final regulations are issued.
Recent changes to civil rights enforcement priorities have impacted compliance practices and diversity, inclusion, and equity (DEI) efforts. During President Trump’s first year, human resource professionals faced swift policy updates, including new joint guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) on illegal DEI practices.[1] Through Executive Order 14173, President Trump not only launched scrutiny of institutions of higher education and public, private, and non-profit organizations, but also ended 60 years of proactive monitoring and auditing of equal employment opportunity (EEO) and non-discrimination for federal contractors and subcontractors.[2]
In this vacuum of guidance for federal contractors and subcontractors, it is interesting to point out that federal agencies are still required to submit MD-715 reports annually to EEOC. These reports, which govern how federal agencies evaluate and improve equal employment opportunity and non-discrimination in the federal workforce, require demographic data for employees such as race, national origin, sex, and disability. How, amongst so much change, has this guidance remained stable?
A couple of key distinctions that stand out include:
- MD-715, legally grounded in Title VII of the Civil Rights Act, is a congressional statute in which EEOC has oversight authority. In contrast, Executive Order 11246, not a congressional statute, was enforced by OFCCP.
- When federal contractors and subcontractors identified workforce underrepresentation, they were required to establish aspirational goals and demonstrate good-faith efforts to increase the diversity pipeline for employment (e.g., expanding outreach and recruitment). In contrast, federal agencies use similar analyses to identify triggers and mitigate the barriers, or root causes, of workforce underrepresentation (e.g., modify a policy).[3] They are not required to set aspirational goals.[4]
A notable observation is that MD-715 guidance provides a helpful framework for Title VII of the Civil Rights Act using a barrier analysis approach. A barrier analysis uses qualitative and quantitative data methods to determine whether an organizational policy, procedure, or practice limits equal employment opportunity for a specific group. Examples of such a review include the following: all written guidance and communications; exit interview questions and feedback; climate surveys and responses; and workforce analytics results (e.g., underrepresentation, selection disparities, differences in participation rates). Once there is substantial evidence validating a barrier, an employer will develop an action plan to monitor and assess progress in addressing the barrier(s).
Finally, guidance for federal contractors and subcontractors on certifying compliance with Executive Order 14173 is still forthcoming.[5] Given this likely certification component, monitoring policies, procedures, and practices for intended and unintended outcomes will be necessary. This self-review may not be a mandated responsibility like MD-715, but it could be a voluntary activity for federal contractors and subcontractors to ensure they are prepared to certify compliance. Time will tell, but at the very least, for federal contractors and subcontractors that have sunset their affirmative action programs for minorities and women in accordance with Executive Order 14173, this could offer another means to promote equal employment opportunity, foster civil workplace cultures, and reduce harmful practices such as harassment, discrimination, and retaliation.
[1] EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination and Office of the Attorney General Memorandum for All Federal Agencies
[2] Executive Order 11246 enforced by the Office of Federal Contract Compliance Programs (OFCCP)
[3] “A barrier is an agency policy, principle, or practice that limits or tends to limit employment opportunities for members of a particular EEO group based on their sex, race, ethnic background, or disability status.” https://www.eeoc.gov/federal-sector/management-directive/instructions-federal-agencies-eeo-md-715-1
[4] With the exception of individuals with disabilities.
[5] Interim Final Rule, FAR Case 2025-004, Restoring Merit-Based Opportunity in Federal Contracts (RIN # 9000-AO77)
