On Feb. 5, OPM issued a memorandum providing additional guidance regarding the President’s three executive orders entitled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and “Initial Rescissions of Harmful Executive Orders and Actions.” While OPM’s memorandum is focused on the federal workforce, government contractors should prepare themselves for the release of similar memorandum directed at their own employment practices. We believe this memorandum also signals the type of changes that could potentially be implemented in federal set aside procurements and federal financial assistance programs.
The memorandum directed federal agencies to eliminate all diversity, equity, and inclusion (“DEI”) offices, programs, and initiatives that unlawfully discriminate in any employment action or term or condition of employment. The memorandum describes “unlawful discrimination” related to DEI as “including taking action motivated, in whole or in part, by protected characteristics.” Protected characteristics are statutorily defined as race, color, religion, sex, national origin, age, disability, genetic information, or pregnancy, childbirth or related medical condition. To be unlawful, according to the memorandum, a protected characteristic does not need to be the sole or exclusive reason for an agency’s action.
OPM also directs agencies to disband any employee resource groups that “promote unlawful DEIA initiatives or advance recruitment, hiring, preferential benefits, or employee retention agendas based on protected characteristics.” That being said, the memorandum also makes clear that heads of agencies have the discretion to allow employees to “host affinity group lunches, engage in mentorship programs, and otherwise gather for social and cultural events” so long as those events do not exclude or discourage participation on the basis of protected characteristics. The memorandum lists as an example that attendance at an ethnic affinity group lunch cannot be limited to only members of the ethnic group. OPM also clarifies that agencies should not terminate or prohibit accessibility or disability-related accommodations, assistance, or other programs required by law.
Finally, OPM calls for the end to “illegal preferences and discrimination” and to “restore merit based equal employment opportunity.” To this end, the memorandum directs the elimination of what are referred to as special emphasis programs that “promote DEIA based on protected characteristics in any employment action or other term, condition, or privilege of employment.” Instead, agencies are required to focus “on rewarding individual excellence.”
Clark Hill’s government contracts and government affairs professionals will continue to monitor developments and provide updates as warranted.
