Insights

The first day of the Trump Administration included the issuance of 26 executive orders(“EOs”), the most in modern presidential history. Among these EOs, President Trump signed the Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Executive Order (the “EO” or “Order”). While focused on federal policy, the Order has broad implications for private sector employers.

Late on the night of January 21, 2025, President Trump signed the “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” Executive Order (the “EO”). This EO, like a number of the executive orders issued on his first day in office, took aim at Diversity, Equity, and Inclusion (“DEI”) programs by, among other things, broadly directing executive agencies and departments to terminate all “discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements;” curtailing the Office of Federal Contract Compliance Programs’ (OFCCP) operational authority and directing agencies to scrutinize the DEI practices of private sector employers. Additionally, this language raises questions about the future and status of certain programs, preferences, and set-aside procurements administered by the U.S. Small Business Administration, U.S. Department of Transportation, and other agencies. 

On October 29, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register that it received two requests under the Freedom of Information Act (“FOIA”) for 2021 Type 2 EEO-1 Reports filed by federal contractors.  The two requests came from the University of Utah and a non-profit organization named “As You Sow.”  The OFCCP notified federal contractors that the information might be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, and requested that any entities that filed these reports and object to their disclosure submit objections by December 9, 2024.  Objectors are strongly encouraged to use the OFCCP portal.  Alternatively, contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail. 

On Friday, October 4, 2024, the Supreme Court granted certiorari in an appeal from the Sixth Circuit decision in Ames v. Ohio Department of Youth Services, a Title VII case involving claims of reverse sexual orientation discrimination.  Plaintiff Marlean Ames, a heterosexual woman, alleges that she was demoted and replaced by a gay man and was also denied a promotion in favor of a gay woman because of her sexual orientation.  The Sixth Circuit affirmed summary judgment in favor of the employer-defendant, holding that—to establish a prima-facie case under Title VII as a member of the majority—in addition to the “usual” showing Plaintiff was required to make an additional showing of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” 87 F.4th 822, 825 (6th Cir. 2023) (citation omitted). The Court observed that such a showing is typically made with evidence that the minority group (here, gay people) made the challenged employment decision or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group—neither of which Plaintiff satisfied.

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced in a press release its implementation of a Final Rule on the Pregnant Workers Fairness Act (“PWFA”), published that day in the Federal Register.  The Final Rule fundamentally extended the PWFAs protections, broadly defining what had been ambiguous phrases to expand the scope of individuals qualifying for accommodations, when employees and applicants for employment may seek an accommodation, and how employers should engage with them upon receiving a request for accommodation.

On Friday, January 12, 2024, the District of Columbia enacted a new pay transparency law, joining states like California, Colorado, Illinois, and New York, which have already enacted such legislation.  The legislation must first clear a 30-day congressional review period and, absent a Congressional vote to overrule the legislation, it will take effect June 30, 2024.

The Safer Federal Workforce Task Force issued updated guidance for federal contractors on October 14, 2022, announcing that it will reevaluate enforcement of the federal contractor vaccine mandate and safety requirements issued under Executive Order 14042.  This is the first pronouncement from the Task Force after it had indicated that it would not enforce the vaccine mandate without further notice in the wake of the Eleventh Circuit’s August 26, 2022 decision limiting the scope of the injunction against implementation and enforcement of the EO 14042 contractor mandate.  The mandate officially narrowing the injunction was issued on October 18. 

As outlined in our prior client alert, the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice in the Federal Register to federal contractors of a Freedom of Information Act (“FOIA”) request for disclosure of Type 2 Consolidated EEO-1 Report data submitted by all federal contractors and first-tier subcontractors from 2016 until 2020.  The OFCCP informed covered contractors that these reports would be produced to the FOIA requester unless the contractor submitted an objection to the disclosure by September 19, 2022.  With that deadline fast approaching, many contractors have been rushing to examine their EEO-1 reports to assess whether they should submit an objection, have raised questions with the OFCCP to better understand whether their EEO-1 reports are covered by the FOIA request, and have raised the prospect of an extension of the September 19 deadline.  As a result, OFCCP has just announced that (1) the Agency is extending the deadline for objections to October 19, 2022, and (2) that the Agency will be emailing all contractors that OFCCP believes are covered by this FOIA request, “using the email address provided by contractors that have registered in OFCCP’s Contractor Portal and the email addresses provided as a contact for the EEO-1 report.”   

On August 31, 2022, the Safer Federal Workforce Task Force announced that the Federal Government “will take no action to implement or enforce Executive Order 14042,” the contractor vaccine mandate, “to ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation.”

On August 19, 2022, the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice in the Federal Register to federal contractors of a Freedom of Information Act (“FOIA”) request from Will Evans of the Center for Investigative Reporting (“CIR”) for disclosure of Type 2 Consolidated EEO-1 Report data submitted by all federal contractors and first-tier subcontractors from 2016 until 2020.  In order to determine whether this information is protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, the OFFCP requested that federal contractors whose information would otherwise be subject to this request submit objections to the OFCCP by September 19, 2022.  Type 2 EEO-1 reports are one of the mandatory submissions that multi-establishment employers file annually, consistent with their obligations under Title VII of the Civil Rights Act of 1964 and the OFCCP’s regulations.   They consist of a consolidated report of demographic data for all employees by employer establishment, categorized by race/ethnicity, sex and EEO-1 job category.  Notably, the FOIA request at issue does not seek production of Component 2 compensation data included in the EEO-1 reports submitted by federal contractors and subcontractors in 2017 and 2018.

Last week, New York Governor Kathy Hochul signed two pieces of legislation aimed at combatting workplace harassment, discrimination, and retaliation that impact private employers. The first bill, effective July 14, 2022, directs the New York State Division of Human Rights (the "NYSDHR") to establish and operate a toll free confidential hotline to provide counsel and assistance to individuals with complaints of workplace sexual harassment. The second bill, effective immediately, expands the retaliation prohibition under the New York State Human Right Law (the "NYSHRL") to include disclosing an employee's personnel file because the employee has opposed discriminatory practices, filed a complaint, or testified or assisted in a proceeding under the NYSHRL.

On January 21, 2022, the District Court for the Southern District of Georgia issued an Order in Georgia v. Biden, No. 2:21-cv-163 (S.D. Ga. Jan. 21, 2022), which responded, in part, to the Government’s requests for clarification regarding the scope of the court’s nationwide injunction of the federal contractor vaccine mandate promulgated under Executive Order 14042. The Government sought clarification of two questions: (1) Whether the injunction “prohibit[s] private federal contractors from mutually agreeing with Defendants to include COVID-19 safety clauses in their federal contracts, thus allowing those federal contractors to voluntarily comply with the Task Force guidelines, including requiring their employees to be vaccinated”; and (2) Whether the Government could continue enforcing compliance with the other requirements associated with the mandate, including masking, social-distancing, and the requirement that contractors must designate employees to serve as coordinators who manage contractor compliance efforts. 

Following the Supreme Court’s granting of the emergency motion to stay enforcement of the Occupational Health and Safety Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) on January 13, 2022 (which we previously covered here), OSHA announced on January 25, 2022 that it is withdrawing the ETS as an enforceable emergency temporary standard, effective January 26, 2022, and will instead prioritize its resources on finalizing a permanent COVID-19 Healthcare Standard, per OSHA’s statement on its website. OSHA noted that it is not withdrawing the ETS as a proposed rule, which will continue to work its way through the ongoing notice and comment rulemaking process. 

Earlier today, the U.S. District Court for the Southern District of Georgia issued a preliminary nationwide injunction of the contractor vaccine mandate in Executive Order 14042.  This injunction will bar the Government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America” while the case is pending or until another order is issued. 

On November 4, 2021, the White House released a Fact Sheet announcing that federal covered contractors now have until January 4, 2022 for their covered employees to receive their final vaccination doses. Under the Executive Order 14042 and the Safer Federal Workforce Task Force guidance, covered contractors previously had until December 8, 2021 to have their covered workforce fully vaccinated or the first date of the period of performance for newly-awarded contracts. The White House announced this change so that the deadline for workers to receive their shots will be the same for the federal contractor requirements, the Department of Labor’s Occupational Safety and Health Administration’s (OSHA) rule and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services’ (CMS) rule, which were both issued on November 4, 2021. According to the CMS rule, although an individual is not considered fully vaccinated until 14 days (2 weeks) after the final dose, individuals who have received the final dose of a primary vaccination series by January 4, 2022 are considered to have meet the individual vaccination requirements, even if they have not yet completed the 14-day waiting period.According to the Fact Sheet, standardizing the vaccination deadline will allow federal contractors that have workplaces that are subject to both the federal contractor order and the newly-released OSHA and CMS rules to streamline implementation and set one deadline for their workforce. We are expecting the Safer Federal Workforce Task Force to issue FAQS or additional guidance to implement the information contained in the White House Fact Sheet.

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to ensure that their employees are either vaccinated by January 4, 2022, or submit to weekly testing.  According to OSHA, employees who are unvaccinated face a “grave danger” from COVID-19, including the more contagious Delta variant.  The ETS notes that COVID-19 is highly transmissible—particularly in workplaces where multiple people interact throughout the day often for extended periods of time—and exposure to COVID-19 can result in death or illness, with some individuals experiencing long-term health complications.  OSHA has determined that vaccination is the most effective way to protect these employees. 

The EEOC has provided updated COVID-19 guidance on workplace vaccine issues. Significantly, the EEOC’s latest guidance addresses questions about religious objections to employer COVID-19 vaccine requirements and how they interact with equal opportunity employment laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII requires an employer to provide reasonable accommodations to employees who do not submit to COVID-19 vaccination because of a “sincerely held religious belief, practice, or observance,” including nontraditional religious beliefs, unless doing so would pose an undue hardship on the operation of the employer’s business. But Title VII does not protect “social, political or personal preferences” or “nonreligious concerns about the possible effects of the vaccine.” As we previously reported, the EEOC had updated its Technical Assistance Q & A earlier in the year regarding what employers should know about COVID-19, the Americans with Disabilities Act (the “ADA”) and other federal EEO laws to address questions concerning vaccination and the workplace. Among other things, the updated guidance states that employees and applicants must inform the employer if they are requesting an exemption to a COVID-19 vaccination requirement due to a conflict with their sincerely held religious beliefs, practices or observances. Further, the same principles apply if they assert a religious conflict with getting a particular vaccine and desire to wait until an alternative version or specific brand of COVID-19 vaccine is available. Employees and applicants do not need to use specific language, or any “magic words,” when making such a request.

On Saturday, October 23, New York Governor Kathy Hochul signed legislation, S. 17-A/A/ 737-A, to allow any group of employees who face or have faced an employment loss to petition their employer to instead participate in a shared work program. New York State’s shared work program offers employers an alternative to laying off employees by equally reducing the work schedule and pay of all employees or a group of employees. These employees then receive unemployment assistance to cover lost wages. Employers are eligible for the program if they have: (1) two or more full-time employees working in New York State and (2) paid unemployment insurance contributions, or elected reimbursement of benefits paid to former employees in lieu of contributions, for the past four consecutive calendar quarters. To obtain approval, employers must submit a shared work plan to the New York State Department of Labor. Such a plan must: (1) reduce work hours and corresponding wages 20 to 60 percent; (2) apply to employees who normally work no more than 40 hours per week; (3) not reduce or eliminate fringe benefits (unless such reduction applies to the entire workforce); (4) not extend beyond 53 weeks, and (5) replace a layoff of an equal number of employees.

On November 1, 2021, the Safer Federal Workforce Task Force (Task Force) issued new Frequently Asked Questions (FAQs) for federal contractors that are subject to Executive Order (EO) No. 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The new guidance addresses requests for accommodations, applicability to corporate affiliates, and recommendations for enforcement and compliance.  As required by the implementing contract clause, covered contractors are required to comply with this new guidance.

Executive Order 14042, issued on September 9, 2021, requires that certain federal contractors and subcontractors mandate vaccinations against COVID-19 for covered employees in addition to requiring compliance by covered employees and visitors with other COVID-19 safety protocols.