By Fred Satterwhite
Five months after Executive Order (EO) 11246 was revoked, the Office of Federal Contract Compliance Programs (OFCCP) has proposed revisions to its implementing regulations, including changes to affirmative action and data collection requirements for individuals with disabilities. These proposed revisions, known as notices of proposed rulemaking (NPRM), cover the regulations stemming from EO 11246, the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503). The public now has 60 days from July 1, 2025 (the date the NPRMs were first published) to provide comments on the proposed changes.
Changes to Regulations Implementing Section 503 (41 CFR 60-741)
OFCCP’s proposed changes include substantial updates to federal contractors’ affirmative action obligations including a rescission of the regulations which require contractors to invite applicants and employees to self-identify their disability status, as well as the 7% utilization goal requirements. According to the NPRM, OFCCP’s position is that these requirements are inconsistent with the Americans with Disabilities Act (ADA); are not required by the statutory text of Section 503; and would not survive scrutiny under Loper Bright Enterprises v. Raimondo.
OFCCP has also proposed removing the “data collection analysis” regulation at 60-741.44(k), which requires contractors to document on an annual basis the number of applicants and hires who self-identified as individuals with disabilities.
As part of their affirmative action programs, contractors would still be required to conduct an annual assessment of external outreach and recruitment efforts for individuals with disabilities, including an evaluation of their effectiveness. However, contractors would no longer have self-identification data for individuals with disabilities to measure their results as part of that assessment.
OFCCP also proposed updates to separate the rules for enforcement hearings from EO 11246 regulations and remove other references to parts that have been proposed for removal.
Changes to Regulations Implementing VEVRAA (41 CFR 60-300)
OFCCP’s proposed changes to the VEVRAA regulations are relatively minimal, with only updates to separate the rules for enforcement hearings from EO 11246 regulations and remove other references to parts that have been proposed for removal. All current affirmative action and nondiscrimination obligations of federal contractors described at 41 CFR 60-300, including the collection of protected veteran self-IDs and mandatory job listings with local employment service delivery systems, would remain in effect without change.
Changes to Regulations Related to EO 11246
The proposed rule would entirely remove the regulations stemming from EO 11246 in the following parts:
- 41 CFR 60-1 (Obligations of Contractors and Subcontractors)
- 41 CFR 60-2 (Affirmative Action Programs)
- 41 CFR 60-3 (Uniform Guidelines on Employee Selection Procedures [1978])
- Note: this rescission only applies to OFCCP and does not impact the Equal Employment Opportunity Commission’s (EEOC) or other federal agencies’ interpretation and application of UGESP.
- 41 CFR 60-4 (Construction Contractors—Affirmative Action Requirements)
- 41 CFR 60-20 (Discrimination on the Basis of Sex)
- 41 CFR 60-40 (Examination and Copying of OFCCP Documents)
- 41 CFR 60-50 (Guidelines on Discrimination Because of Religion or National Origin)
- 41 CFR 60-999 (OMB Control Numbers for Information Collection Requirements)
In addition, 41 CFR 60-30 (Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity under Executive Order 11246) would be updated to remove references to EO 11246 and temporarily consolidate authorities under VEVRAA and Section 503 until the separate rulemaking for VEVRAA and Section 503 implementing regulations would absorb them, at which point Part 60-30 would be rescinded entirely.
OFCCP’s Stance on Practices Tied to the EO 11246 Regulations
OFCCP’s NPRMs include discussions of the proposed changes that provide insights as to the position of the current administration regarding enforcement of federal civil rights laws and past practices of the agency.
For example, OFCCP dismissed the utility of the “utilization analysis” and placement goals for women and minorities, previously required by 41 CFR 60-2.15, saying:
“The premise that the mere existence of statistical disparities is evidence of underutilization of women and minorities is based on the fundamentally flawed assumption that each and every federal contractor’s workforce may harbor discrimination if it does not mirror the available labor pool for women or minorities…(EO 11246) regulations failed to take account of other factors that might influence the composition of a contractor’s labor force and instead imposed uniform requirements that assumed without evidence that but for discrimination there would be no statistical demographic disparities between a contractor’s workforce and the available area labor force.”
OFCCP also stated that despite the regulatory prohibition on quotas in 41 CFR 60-2.16,
“Contractors may have wrongly tried to ensure that they did not incur costly and lengthy audits or serious enforcement penalties that could jeopardize their ability to obtain and maintain federal contracts by taking and making legally impermissible hiring and employment actions and decisions.”
However—as noted in a previous DCI blog post by DCI President David Cohen—OFCCP conducted 47,813 compliance evaluations over the last twenty years, and did not cite a single contractor for using AAP placement goals as quotas.
As part of their cost-benefit analysis of rescinding the regulations, OFCCP estimated that removal of the EO 11246 obligations would save almost 10 million hours and $1 billion annually, based on case data from the last three years.
Next Steps
After the public comment period ends on September 2, 2025, OFCCP will need to review and consider the comments, then submit the final version of their rule to the Office of Information and Regulatory Affairs (OIRA) for review. A 30-day public comment period—during which the public can submit comments directly to OIRA for consideration—will ensue. If approved by OIRA, the final rule then will be published in the Federal Register with an effective date on or after publication.
The timeline for publication of the final rule will be interesting to watch due to the proposed FY 2026 federal budget which calls for the elimination of OFCCP on October 1, 2025. With the required public-comment periods included, it would be practically impossible to publish the final rule prior to OFCCP’s elimination date.
DCI will continue to monitor and provide updates as they occur.
