EEO and Affirmative Action: Where Are We Now?

What All Employers Need to Know

The federal landscape for EEO, affirmative action, and DEI continues to change. Employers should focus on what remains required while ensuring employment decisions are job-related, consistently applied, and well-documented.

Federal Contractors

The rescission of Executive Order 11246 eliminated the federal affirmative action requirements related to race and sex. However, Section 503 of the Rehabilitation Act and VEVRAA remain in effect for covered federal contractors.

Federal contractors should continue to:

• Maintain written AAPs under Section 503 and VEVRAA when required.
• Conduct appropriate outreach and document good-faith efforts.
• Meet applicable self-identification, job listing, posting, recordkeeping, and reporting requirements.
• Ensure applicants and employees with disabilities have access to employment opportunities and accommodations.
• Monitor changes to federal requirements and agency guidance.
• Continue required voluntary self-identification practices.

Federal contractors should not assume that all affirmative action obligations have ended, as some states and local municipalities have their own affirmative action requirements.

All Employers

All employers remain subject to federal, state, and local nondiscrimination laws. Employers should be able to answer a basic question: Can we demonstrate that our employment decisions are based on legitimate, job-related factors and are applied consistently? Answer: Hiring, promotion, compensation, discipline, and termination decisions should be supported by documented qualifications, performance, experience, skills, business needs, and other legitimate factors.

Be Careful With DEI Programs

Employers should review DEI programs to make sure they do not create preferences, quotas, or employment decisions based on protected characteristics. Training, mentoring, networking, and ERG opportunities should generally be broadly available and not unlawfully exclude employees based on protected status. Protected-status information should not be used to make individual employment decisions.

Data and Documentation Matter

Even without a formal affirmative action plan, ALL employers should continue to track employment data and document employment decisions.

Accurate data records can help employers identify potential barriers, evaluate whether employment practices are being applied consistently, and address concerns before they become legal claims.

Employers should consider maintaining data and documentation related to:

• Hiring and selection decisions
• Promotions and advancement
• Compensation
• Performance management and discipline
• Terminations
• Applicant flow and recruitment
• Accommodation requests
• Voluntary demographic information, when appropriately collected
• The job-related criteria used to make employment decisions

The goal is not to create unnecessary paperwork. The goal is to have objective, consistent documentation that supports legitimate employment decisions.

Practical EEO Best Practices

Employers should:

• Review requirements annually. Determine whether federal, state, or local affirmative action requirements apply.
• Use job-related criteria. Base employment decisions on qualifications, skills, experience, performance, and legitimate business needs.
• Apply standards consistently. Make sure similar situations are handled consistently.
• Track data. Use employment data to identify potential barriers and inconsistencies.
• Document decisions. Keep records that explain the legitimate business reasons behind employment decisions.
• Audit employment practices. Review recruiting, hiring, compensation, promotions, performance management, AI tools, and termination practices.
• Train managers. Make sure decision-makers understand EEO requirements, retaliation, accommodations, appropriate interview practices, and documentation expectations.
• Protect confidential information. Limit access to protected-status and self-identification information and keep it separate from employment decision-making whenever appropriate.

Bottom Line

The affirmative action landscape has changed significantly, but equal employment opportunity requirements have not gone away. Whether or not an employer is required to maintain a formal AAP, the best approach for all is to focus on fair processes, job-related decisions, consistent treatment, accurate data, and good documentation.