In a recent development, America First Legal (AFL) has formally requested the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to investigate federal contractors that allegedly have illegal diversity, equity, and inclusion (DEI) policies.
Stephen Miller, the White House Deputy Chief of Staff for Policy and a close confidant of President Trump, co-founded AFL and is likely aware (and perhaps directed the writing) of the letter requesting OFCCP action.
In the letter, which was sent on February 14, 2025, AFL stated that the authority for OFCCP to conduct these investigations is the Equal Opportunity Clause (41 C.F.R. § 60-1.4(a)) and President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Specifically, AFL stated the following:
… [OFCCP] should go further and immediately surge available resources to investigations of open and notorious prohibited discrimination. All Federal government contracts already include an equal opportunity clause requiring the contractor to commit that employment decisions related to its applicants and employees will be made “without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.” 41 C.F.R. § 60-1.4(a). This clause covers but is not limited to decisions in hiring, promotion, demotion, transfer, recruitment, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeships. Id. The equal opportunity clause is enforceable in every Federal contract and subcontract. 41 C.F.R. § 60-1.4(e). When a contractor or subcontractor violates the equal opportunity clause, the Secretary of Labor may cancel, terminate, or suspend contracts and declare it ineligible for further federal government contracts, among other sanctions. 41 C.F.R. §§ 60-1.26–27.
Revocation of Executive Order 11246 Causes Questions
AFL calling for the OFCCP to investigate contractors is not new. For example, AFL requested this of OFCCP last year in regards to a major airline, which was not necessarily news-worthy. What is news-worthy is the fact that AFL (and maybe Stephen Miller) believes that the Executive Order (EO) 11246 regulations are still in effect, given the action requested above from the letter and the regulatory citations noted. DCI’s understanding—and that of most legal scholars'— is that these regulations are no longer in effect due to the revocation of EO 11246 via EO 14173. Clearly, AFL thinks otherwise, which raises some very interesting questions. Once again, AFL is not just any conservative organization; it is the organization co-founded by Stephen Miller. With the revocation of EO 11246, OFCCP would presumably lack the authority to conduct and enforce illegal discrimination based on race, ethnicity, sex, sexual orientation, religion, or national origin.
Although the Justice Department is drafting guidance on "illegal DEI," said guidance may paradoxically rely on the revoked EO 11246. And ironically, EO 11246 already specifically prohibited quotas, preferences, set-asides and required merit-based selection systems. Contrary to the President’s Executive Orders (which seemed to imply reduced authority and enforcement power for OFCCP), the AFL letter requests increased resources for investigations and suggests OFCCP could be repurposed as an anti-discrimination agency. However, enforcement could be precarious without an underlying authority.
We should learn more about OFCCP and its direction once the Secretary and Deputy Secretary of Labor are confirmed.
For more details, you can read the full letter directed to Vincent Micone, Acting Secretary of Labor, and Michael Schloss, Acting Director of OFCCP.
DCI will continue to monitor developments and provide updates as they occur.
