A new policy directs all Defense Department components not to include Equal Employment Opportunity provisions and clauses in new contracts and solicitations.

In a memo released on March 4, John Tenaglia, the defense pricing, contracting and acquisition policy principal director, instructed DoD contracting officers not to enforce President Lyndon B. Johnson’s executive order signed in 1965 that mandated all federal contractors to promote equal employment opportunities and prevent discrimination. 

DoD solicitations and contracts will no longer include provisions and clauses related to prohibition of segregated facilities; previous contracts and compliance reports, which require contractors to list whether they  have previously participated in contracts that complied with EEO laws and regulations; notice of requirement for affirmative action to ensure equal employment opportunity for construction; the preaward on-site equal opportunity compliance evaluation; affirmative action compliance; and the notification of visa denial.

Contracting officers are not required to modify contracts that will expire in the next six months and have no option for extension.

Johnson’s executive order was the precursor to Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex or national origin. And while the executive order imposed a number of additional obligations on federal contractors, such as putting together a workforce analysis, it actually did not have a lot more obligations outside of Title VII.

“It is a shift — it’s been around since the Johnson administration, so it’s a significant action taken by the Trump administration. The impact, generally, I don’t think will be significant other than it’s going to save contractors some money, because they won’t have to complete affirmative action plans. They won’t have to do as many extra things that executive order imposed on them. It also means they won’t be doing workforce analyzes quite as much. But they will still be obligated under Title VII to make sure that they don’t discriminate against people based on race, sex and national origin, just like they always have had to under Title VII,” Nichole Atallah, a partner at Pilieromazza, told Federal News Network.

While an affirmative action plan is going away, which means contractors won’t have to compile a workforce analysis based on race, sex, religion, national origin, and age, it is still a requirement to conduct an analysis for veterans and people with disabilities.

“It was an expense to contractors, but it was also a pause to take a look at what the makeup of organizations looks like. It did not impose quotas. It did not impose hiring requirements. The point was to try to get your applicant pools diverse, so that you would hire the best among those applicants. It was really a gut check,” said Atallah. 

The new memo is in line with President Donald Trump’s Ending Illegal Discrimination and Restoring Merit-Based Opportunity executive order, which revoked Johnson’s executive action. But Trump’s executive order left a lot of questions unanswered, and contractors are still confused about what they need to do to comply. 

Atallah said contractors should make sure they maintain their discrimination and harassment policies as required by Title VII, and ensure they are still compliant with state and local laws since state and local governments have additional protected classes.

“One thing we are telling contractors not to rush to make changes until you’ve made a list of everything that you think might be implicated. Talk to your legal counsel and make sure that you understand what you should or what is required to be taken down, and what’s actually still a federal or state law that you need to comply with. Because I think one of the unintended consequences of all of this is that it’s going to be a plaintiff’s lawyer’s dream, because it’s going to cause a lot of confusion. Employers are going to make missteps and mistakes as a result of this, and they’re going to end up with employee lawsuits as a result of that,” said Atallah. 

For right now, the new DoD memo only is focused on progressively eliminating Johnson’s executive order instead of eliminating “illegal diversity, equity and inclusion programs,” which has been enjoined by the federal court.

Last month, U.S. District Judge Adam Abelson in Baltimore issued an order temporarily blocking several provisions of Trump’s executive order.

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