Category: Affirmative action

Court Temporarily Hits the Brakes on EO 14173 Ending Illegal Discrimination: What Employers Should Know

 Anthony B. Haller, Brooke T. Iley, and Theresa A. Topping ●


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On February 21, 2025, a federal judge in the District Court of Maryland granted a temporary injunction blocking portions of President Trump’s Executive Orders “Ending Illegal Discrimination and Restoring Merit Based Opportunity” (“14173”) and “Ending Radical and Wasteful Government DEI Programs” (“14151”) (collectively the “EOs”). To learn more about each EO’s directives read Blank Rome’s previous coverage on 14173 here and 14151 here. This is a temporary nationwide ban on certain portions of the EOs.

After pointing out that the Trump Administration has declared “DEI to be henceforth illegal”, the Court found the EOs do not “define any of the operative terms” such as “illegal DEI”, “equity-related”, “promoting DEI”, or “illegal discrimination or preferences”. This vagueness fails to provide companies and organizations with proper notice as to what types of programs are prohibited. Further, the Court found that the EOs likely violate the First Amendment by expressly threatening “the expression of views supportive of equity, diversity and inclusion.” This is a nationwide ban.

Continue reading “Court Temporarily Hits the Brakes on EO 14173 Ending Illegal Discrimination: What Employers Should Know”

It’s Not Too Late: Notify OFCCP Now to Prevent Disclosure of EEO-1 Data

Merle M. DeLancey, Jr. ●

In case you have not been following this development, the Office of Federal Contract Compliance (“OFCCP”) intends to release certain EEO-1 data in response to a FOIA request. Specifically, OFCCP intends to release EEO-1 Type 2 Reports submitted by federal contractors from 2016 to 2022. All multi-establishment companies (i.e., any corporation that does business out of multiple physical locations) are required to submit Type 2 Reports. These reports must include data for all employees of the company (i.e., all employees at headquarters as well as at all establishments) categorized by race/ethnicity, sex, and job category.

OFCCP is notifying contractors who have not objected that it intends to release the requested EEO-1 Data after the start of the new year. In e-mails sent to contractors at the end of November 2022, OFCCP stated:

The objection period is now closed, and we are sending this message to confirm we have not received an objection from your organization regarding release of the requested data. Because we have received no objection, we are providing your organization with notice that its Type 2 EEO-1 data is subject to release under FOIA, and OFCCP intends to release this data after January 2, 2023.

The e-mail notice instructs companies to contact OFCCP “as soon as possible but no later than January 2, 2023” if OFCCP has erred and the company did timely object to release of its data or the company was not a federal contractor during the applicable time period.

Continue reading “It’s Not Too Late: Notify OFCCP Now to Prevent Disclosure of EEO-1 Data”

New York Expands Workplace Protections for Religious Attire, Clothing, and Facial Hair

Mara B. Levin, Anthony A. Mingione, Stephen E. Tisman, and Jacob W.E. Kearney

A new amendment to the New York State Human Rights Law expressly prohibits workplace discrimination based on religious attire, clothing, and facial hair. New York employers should review their current policies and work with counsel to ensure compliance by the October 8, 2019, effective date.

Governor Cuomo recently signed legislation (S.4037/A.4204) that amends the New York State Human Rights Law to expand religious protections for employees and applicants in the workplace. The New York State Human Rights Law already prohibits employers from imposing upon employees and applicants “a condition of obtaining or retaining employment” that would require them “to violate or forego a sincerely held practice of [their] religion.” N.Y. Exec. Law § 296(10)(a). The new law ensures that those same protections now encompass an employee’s or applicant’s religious attire, clothing, and facial hair. Continue reading “New York Expands Workplace Protections for Religious Attire, Clothing, and Facial Hair”

Time to Start Collecting Pay Data—Judge Sets September 30 as Date for Filing of EEO-1s

Mark Blondman and Emery Gullickson Richards

As we reported last month Judge Tanya Chutkan of the United States District Court for the District of Columbia ruled on March 4 that the Office of Management and Budget (“OMB”) was to reinstate the EEOC’s 2016 pay reporting Rule, the enforcement of which had been blocked by the Trump administration. Under that Rule, which was to have been effective with the filing of EEO-1 forms in March 2018, employers with more than 100 employees would be required to collect and report aggregated W-2 data and hours worked, based on gender, race, and ethnicity, in 10 job categories, across 12 pay ranges, for each of a company’s physical locations.

The one issue left unanswered by Judge Chutkan’s March 4 Order was when the Equal Employment Opportunity Commission (“EEOC”) was required to collect the employee pay data. This morning, Judge Chutkan, held that the Commission had to collect the data by September 30, 2019. The EEOC has indicated it will make the collection portal available by July 15 and provide information and training to employees prior to that date.

The clock is ticking and, absent a successful appeal of Judge Chutkan’s March 4 decision, employers should now be collecting the data required to be included in the EEO-1 form and be prepared to file those reports on or before September 30. Members of our Firm’s Labor & Employment Practice Group are available to assist in navigating the EEO-1 Form.

The Uncertain Future of Gender Pay Reporting

Mark Blondman and Emery Gullickson Richards

As you may recall, in 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a Rule requiring private employers with more than 100 workers to include certain pay data, based on gender, race, and ethnicity, on their Form EEO-1s. The Rule, which purportedly was aimed at encouraging employers to ensure that compensation was directly related to jobs being performed and as a means of combating pay disparities, was slated to go into effect with the filing of EEO-1 forms in March 2018.

Under President Trump, the Office of Management and Budget (“OMB”) blocked enforcement of the Rule and announced that decision in August 2017.

On March 4, 2019, Judge Tanya Chutkan of the United States District Court for the District of Columbia, in response to a 2017 lawsuit filed by advocacy groups including the National Women’s Law Center, issued an Opinion and Order directing that the OMB reinstate the EEOC’s 2016 pay reporting Rule. Continue reading “The Uncertain Future of Gender Pay Reporting”

OFCCP Is Staying Busy—So Should Government Contractors

Merle M. DeLancey Jr.

In February, the Office of Federal Contract Compliance Programs (“OFCCP”) sent Corporate Scheduling Announcement Letters (“CSALs”) to 1,000 contractor establishments. Shortly thereafter, in March, OFCCP mailed follow-up compliance review scheduling letters (“Scheduling letters”). On September 7, 2018, OFCCP sent a second round of CSALs to an additional 750 contractor establishments.

Further, on September 19, 2018, OFCCP issued Directive 2018-08: Transparency in OFCCP Compliance Activities. The purpose of the Directive is to “ensure transparency in all stages of OFCCP compliance activities to help contractors comply with their obligations and know what to expect during a compliance evaluation, and to protect workers from discrimination through the consistent enforcement of OFCCP legal authorities.” The Directive identifies the “Roles and Responsibilities” of OFCCP and contractors during a compliance review and the “Policies and Procedures” that will be followed. Continue reading “OFCCP Is Staying Busy—So Should Government Contractors”

Employers Should Take Notice of New Jersey’s Expected Equal Pay Law

Thomas J. Szymanski

The Diane B. Allen Equal Pay Act (“Act”), directed at remedying discriminatory pay practices in the workplace, was passed by both houses of New Jersey’s Legislature and awaits the signature of Governor Phil Murphy. This is not the first time that the New Jersey Legislature has passed a bill modeled after the federal Lilly Ledbetter Fair Pay Act of 2009, which made it easier to pursue pay-discrimination lawsuits—former Governor Chris Christie previously vetoed nearly identical versions of this bill, based on his stated belief that they were overly-expansive and bad for business. Governor Murphy has pledged to sign the current version of the Act into law, with an anticipated effective date of July 1, 2018. Some of the Act’s provisions, notably those providing for treble damages and a six-year look back period, could provide more employees with much greater relief for violations than the federal Ledbetter Act or other state equal pay laws. Continue reading “Employers Should Take Notice of New Jersey’s Expected Equal Pay Law”

Trick or Treat? New York City Salary History Ban Becomes Effective October 31

Anthony A. Mingione

Earlier this year, New York City amended its Human Rights Law to make it unlawful for an employer to ask about or rely on a prospective employee’s prior salary history in making hiring decisions. The amendment bans both direct inquiries from applicants and attempts at learning applicants’ previous salaries from indirect sources, such as independent research or third party conversations.

The legislation becomes effective on October 31, 2017, so New York City employers should take advantage of the remaining time before the effective date to conform their hiring practices to the new restrictions. Continue reading “Trick or Treat? New York City Salary History Ban Becomes Effective October 31”