Preparing for Certification and Enforcement Under EO 14173
Original Air Date: February 13, 2025 (2:00 PM - 2:45 PM EST)
Executive Order 14173 does not outlaw diversity programs. It targets what it calls illegal DEI, a term that appears in no statute and that the administration has not defined.
What did change is that compliance is now tied to money. A federal contractor certifies that it complies with federal anti-discrimination law and is not engaged in illegal DEI, and that certification is connected to contract payment.
What Employers Need to Know
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The practical screen offered for any program was four questions: does it use a quota, does it use a preference, does it have exclusive membership, or does it exclude a particular group.
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Sexual orientation and gender identity remain federally protected under Title VII. The Supreme Court held so in Bostock, and an executive order cannot undo a statute as interpreted by the Court.
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Cultural and historical observances are not prohibited. The Department of Justice memo read on the recording expressly excludes educational, cultural and historical observances from its scope.
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Section 503 and VEVRAA come from statutes passed by Congress, so their affirmative action requirements survived the executive order along with the associated obligations such as state job postings.
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Over-correction carries its own risk. Employers who stripped out DEI language wholesale have removed reasonable accommodation and disability inclusion by accident, and blue states and the plaintiffs' bar are watching for exactly that.
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Decoupling equal employment opportunity work from the DEI label was the recurring recommendation, because non-discrimination compliance is what the orders themselves say they are protecting.
Frequently Asked Questions
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What counts as illegal DEI under EO 14173?
The order does not define it. The working screen offered was whether a program uses a quota, a preference or a set-aside, whether membership is exclusive, or whether it excludes a protected group. Practices that fail that screen were generally unlawful before the order as well.
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Are sexual orientation and gender identity still protected classes?
Yes. The Supreme Court held in Bostock that both are covered by Title VII of the Civil Rights Act. An executive order cannot override a statute or a Supreme Court ruling. Employers who removed those categories from their EEO policy statements acted on a misreading.
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Can we still hold Black History Month or run employee resource groups?
Yes to both, with a caveat on the second. The Department of Justice memo excludes educational, cultural and historical observances. Employee resource groups become a problem when they exclude people, so a group that bars a protected group from joining is the version that carries risk.
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What does the certification require?
That the contractor complies with all federal anti-discrimination laws and is not engaging in illegal DEI, with the certification tied to contract payment. The preparation recommended was a privileged DEI risk assessment plus privileged analytics on pay, hiring, promotions and terminations. The statutory picture behind the certification is covered in more depth in a later session.
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Should we scrap our DEI programs to be safe?
The session argued against a wholesale purge. The recommended approach was to inventory every program, stop anything actually illegal, then sort the rest into retain, reframe and remove. Employers who cut indiscriminately have removed lawful and necessary programs, including accommodation processes.
What Has Changed Since This Session Aired
In August 2026 OFCCP published three final rules. The EO 11246 regulations were rescinded outright, Section 503 affirmative action requirements were narrowed with effect from September 21, 2026, and the VEVRAA written plan threshold rose from $150,000 to $200,000. The session's core point holds: the statutes behind Section 503 and VEVRAA were passed by Congress and remain, but the regulations sitting on top of them have now changed.
Topics Covered
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503 and VEVRAA regulations and requirements remain in effect
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Conducting a DEI Risk Assessment or Barrier Analysis
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Whether employers should continue collecting demographic information and if so, from whom?
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What, if any, analytics should be conducted on workforce data
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What enforcement of these new requirements will look like moving forward
Speakers
David Cohen, M.S., President
Joanna Colosimo, M.A., Vice President of Workforce Analytics & Compliance Strategy, Principal Consultant