With the transition to a new presidential administration well under way, everyone is looking for signs to help predict the future. Given President Trump’s sweeping executive action, including entering an Executive Order requiring the identification of two regulations to be eliminated for every new regulation proposed, the question of whether the make-up of the federal agencies as we know it will survive a new administration and cabinet. Of particular importance to government contractors is the question of whether a Trump Administration suggests the end of OFCCP. The question has been asked privately and in the media – might OFCCP be eliminated as redundant and unnecessary?
One recent event suggests otherwise. This week, the White House announced President Trump’s decision to leave intact President Obama’s landmark LGBT executive order prohibiting discrimination on the basis of sexual orientation and gender identity.
The President’s move suggests the Administration does, indeed, value the anti-discrimination protections and affirmative action principles of Executive Order 11246, as well as Section 503 and VEVRAA. Far from suggesting a demise of the long-standing Executive Order 11246 – the centerpiece of OFCCP’s existence – the President’s move suggests he stands by a historic expansion of protections, with one caveat. President Trump has also said he will sign, if passed by Congress, the First Amendment Defense Act (FADA), which could carve out a large exception to the protections of the LGBT Order.
The new Administration may further curtail OFCCP’s budget, as well as scale-back compliance and audit burdens. We believe the eventual DOL Secretary (which may be some time coming given the repeated and now indefinite confirmation delay) and OFCCP Director will follow the President’s lead to forego new regulations and, perhaps, rollback some aspects of existing regulations. A reprieve that likely will be welcomed by many in the contractor community .
However, while the landscape for federal contractors may certainly change under the current administration, the elimination of OFCCP would leave a noticeable void given its vital function to advance not only equal employment opportunity but also foster affirmative action for women, minorities, veterans and the disabled, a role not duplicated by EEOC or any other federal agency.