Complying with EO 14173 While Upholding EEO Standards
Original Air Date: June 11, 2025 (2:00 PM - 3:00 PM EDT)
Executive Order 11246 was revoked. Title VII, Section 503, VEVRAA, the ADEA and state EEO statutes were not. The obligation to avoid discrimination survived the order that used to sit on top of it.
The practical consequence is that employers who stopped collecting applicant demographic data in response to EO 14173 have made themselves harder to defend, not safer.
What Employers Need to Know
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The statutes are untouched. As the session put it, with respect to the law not a comma has changed. EO 11246 was an executive order, and the regulations that supported it are gone, but the underlying statutes remain.
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Collecting demographic data is not illegal under EO 14173. The recommended practice is to keep collecting it and to firewall it from anyone making employment decisions.
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An employer without demographic records is exposed to an adverse inference if sued, and to plaintiffs imputing race and sex statistically. Defending a case with no records is described as a complete nightmare.
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Disparate impact is codified at Title VII section 703(k)(2). EO 14281 directed agencies to deprioritize enforcing it, which is not the same as removing it, and the private plaintiffs' bar is unaffected either way.
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Certifying under EO 14173 is a two-part statement: that you comply with federal anti-discrimination law, and that you are not engaged in illegal DEI. It is made subject to the False Claims Act.
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Illegal DEI has no statutory definition. A working test offered is whether a practice uses a quota, a preference, a set-aside, an exclusion, or otherwise supersedes merit selection.
Frequently Asked Questions
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Did EO 14173 remove federal contractors' EEO obligations?
No. It revoked Executive Order 11246 and the affirmative action regulations built on it. Title VII, Section 503, VEVRAA and the ADEA are statutes passed by Congress and an executive order cannot repeal them. State obligations are also unaffected.
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Should employers stop collecting applicant race and sex data?
Collection remains lawful, several states and New York City require it, and the EEOC has continued to demand it under Title VII. The risk sits the other way: an employer with no records has no way to show its decisions were sound.
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Is disparate impact still the law?
Yes. It is written into Title VII at section 703(k)(2), and an executive order cannot remove a statutory provision. EO 14281 told federal agencies to deprioritize enforcing it, which does not bind private plaintiffs.
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What does certifying under EO 14173 actually require?
That you comply with federal anti-discrimination law and are not engaged in illegal DEI, tied to contract payment and exposed to the False Claims Act. Certifying in good faith was said to need two things: a DEI risk assessment run with counsel, and workforce analytics showing no evidence of discrimination.
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What counts as illegal DEI?
The term appears in no statute and has not been defined. The screen offered was whether a program uses a quota, a preference or a set-aside, excludes anyone by protected characteristic, or overrides merit selection. Practices failing it were generally unlawful under EO 11246 too.
What Has Changed Since This Session Aired
A proposed budget indicated OFCCP would be defunded from October 1, 2025. That did not happen. In August 2026 OFCCP published three final rules instead: the EO 11246 regulations rescinded outright, Section 503 narrowed with effect from September 21, 2026, and the VEVRAA written plan threshold raised from $150,000 to $200,000. Section 503 written plans are still required at 50 or more employees and $50,000 or more in contracts.
Everything the session said about the statutes, the data and the certification still stands. What has changed is that the regulatory rescission the speakers anticipated has now formally happened.
Speakers
Joanna Colosimo, M.A., Vice President of Workforce Analytics & Compliance Strategy, DCI Consulting
David Cohen, President, DCI Consulting
Guest: David Fortney, Attorney and Co-Founder, FortneyScott (outside guest)