OFCCP Issues Final Rule Reclaiming Considerable Discretion And Leverage In Pre-Enforcement Procedures For Discrimination Claims

On August 4, 2023, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published a final rule targeting pre-enforcement notice and conciliation procedures. The final rule, which goes into effect September 5, 2023, largely returns OFCCP's pre-enforcement procedures for discrimination claims to how they existed prior to a December 2020 rule issued by the agency in the waning days of the Trump administration.

While the Trump-era 2020 rule had provided federal contractors and subcontractors with long-sought clarity regarding the evidentiary standards and processes applicable to OFCCP when it evaluates and seeks to assert discrimination claims, the agency's new rule does away with nearly all of those welcome changes. OFCCP's stated purpose is to realign its practices and procedures with Title VII of the Civil Rights Act of 1964 by providing its compliance officers more flexibility in investigating discrimination and guiding audits to