OFCCP’s Proposed Rule Changes: 1500+ Comments Highlight Sharp Divisions

On September 17, 2025, the public comment period closed on three regulatory proposals issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  

Background to the Proposed Rules 

Prior to January 21, 2025, OFCCP enforced an executive order and two laws – Executive Order 11246 (affirmative action plans for women and minorities), Section 503 of the Rehabilitation Act of 1973 (disability), and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) (protected veterans).   Each had its own set of implementing regulations, which are now the focus of the OFCCP’s proposed changes. OFCCP proposed to eliminate the regulations implementing Executive Order 11246 and modify its disability and protected veteran regulations.  

Executive Order 11246 and its Implementing Regulations 

The proposed elimination of EO 11246 drew 917 comments.  However, full rescission appears likely since President Trump revoked the underlying order on January 21 through Executive Order 14173.  Without the underlying authority, it doesn’t seem to make sense to have implementing regulations any longer.  

The comments regarding these regulations largely fell into four buckets: 

1. Equal opportunity advocates lamented the government’s withdrawal from this enforcement arena. They expressed concern that if OFCCP is not proactively selecting government contractor employers for equal opportunity evaluations, accountability would shift to each alleged victim of discrimination in employment to enforce rights through individual charges; 
2. The LGBTQ+ community expressed concerns about the loss of nondiscrimination protections in government contractor workplaces based on sexual orientation and gender identity; 
3. Opponents of affirmative action in employment praised OFCCP for rescinding the regulations that they say required reverse discrimination, quotas, or unlawful preferences (though most misunderstood how affirmative action in employment actually functioned to identify barriers to equal opportunity); and 
4. Legal scholars and others familiar with OFCCP’s administrative law judge enforcement process concurred that the existing enforcement process likely would have to be dismantled as unconstitutional and would not survive additional court challenges after the Supreme Court’s recent decision in Jarkesy.  

Section 503 of the Rehabilitation Act and its Implementing Regulations 

Because the Rehabilitation Act is a law and not an executive order, the President cannot rescind it.  Thus, the OFCCP’s regulations implementing the law still have a legal foundation on which they rest, but the OFCCP is proposing to modify these regulations by eliminating all data analysis.  The current compliance requirements include: 

• Asking applicants and employees if they wish to self-identify as an individual with a disability;  
• It is mandatory for the employer to ask, but it is completely voluntary for an applicant or employee to answer the self-identification question; 
• Using the disability self-identification form that the OFCCP developed and that the Office of Management and Budget approved through April 30, 2026;  
• The form does not require anyone to identify any illness or medical condition;  
• It simply asks the recipient to answer “Yes,” “No,” or “I do not wish to self-identify:” 
• Using the voluntary self-identification data to evaluate whether the employer’s outreach and recruiting efforts seem to be effective, or if disability employment seems to be stagnating or declining year over year. If the employer deems its outreach efforts to be ineffective, the employer needs to cease using them and substitute something else that might work better; 
• Comparing the percentage of individuals with disabilities in the workplace to a 7% disability utilization goal, which is another lens into whether outreach and recruiting seems to be effective, and also whether the employer seems to be fostering an inclusive work environment where employees feel comfortable answering the periodic self-identification survey. 

Proposed Section 503 Changes and Comment 

OFCCP is proposing to eliminate the collection of all disability data and no longer require employers to conduct any disability data analysis in their annual affirmative action plans.  There were 651 comments.  

Comments on the OFCCP’s proposed modification largely fell into seven categories: 

1. There were several hundred disabled individuals, family members of disabled workers, and disability-related organizations who expressed great concern that if government contractor employers no longer were required to collect disability data to aid them in self-evaluating their outreach practices and efforts, it would result in significantly less outreach into the disability community and a significant decline in the percentage of qualified individuals with a disability being employed. Not a single disabled individual or family member of a disabled individual supported the modification.   
2. The gist of their comments was another way of saying, “What gets measured, gets done,” and if the OFCCP eliminates the requirement for government contractors to measure disability, their expectation is that it will be devastating to the disability community. 

Employer comments were more varied. 

1. A very small number asked OFCCP to leave the current data collection and analyses as mandatory. There is burden in having to take down systems or employ developers to adapt them every time the administration changes, and if there is even the smallest possibility that a new administration could re-impose these requirements, it would be easier just to maintain them as is. 
2. Many employer organizations asked the OFCCP to allow them to continue collecting disability self-identification information on a permissive basis. Even if OFCCP no longer requires employers to include specific analyses in their annual affirmative action plans, these employers felt that being allowed to continue asking applicants and employees to self-identify would provide them with the data they found useful in preparing the mandatory annual written evaluation of the effectiveness of their disability outreach, which is still required. (They questioned how they are supposed to evaluate the effectiveness of their outreach if the government makes it unlawful to collect disability data).   
3. Other employers noted that if they still must collect veteran self-identification from applicants and employees, it really isn’t that burdensome to collect disability data, too. 
4. Many employer organizations applauded the proposed changes. They expressed concern that self-identification violates the Americans with Disabilities Act’s prohibition on asking about disability unless the employee has requested reasonable accommodation, and there are very high percentages of applicants and employees who do not self-identify, so holding employers accountable to a metric that is completely dependent on the willingness of applicants and employees to self-identify is unfair.  
5. Some employers expressed concern that if the federal government is going to exit this compliance or enforcement environment, there is a risk that the states will try to fill this new void, and when the states tend to fill a void left by the federal government, it becomes an unwieldy patchwork of inconsistent laws, which make it hard for multi-state employers to comply in a uniform manner. In some instances, having a uniform, federally-required compliance obligation makes it easier to comply than leaving it up to the individual states.  
6. Finally, a very high percentage of employer organizations criticized OFCCP for cutting the administrative enforcement mechanism out of the Executive Order 11246 regulations and pasting them into the disability (and veteran) regulations.  OFCCP’s enforcement process using administrative law judges is likely unconstitutional under recent court precedent (SEC v Jarkesy, 603 U.S. 109 (2024)), so pasting an unconstitutional enforcement mechanism into the disability (and veteran) regulations without modifying it made little sense to these employer organizations.  

We do not have any clear sense whether OFCCP will eliminate all data requirements or leave some data collection as permissible.  

VEVRAA and Protected Veterans 

OFCCP proposed no significant changes to veteran data collection or hiring benchmarks under VEVRAA.  However, it proposed to add its contested enforcement mechanism into the veteran rules, too. This proposal drew 18 comments. 

Employers’ comments seemed to be uniform in their agreement that OFCCP’s use of administrative law judges in the enforcement of Section 503 and VEVRAA would not likely survive a legal challenge on constitutional grounds.  

Additional Comments are Due by October 24, 2025 on the Disability Self-identification, Itself – the CC-305 

As OFCCP previewed in its July 1 request to modify the disability implementing regulations, it also intended to seek separate comments on the disability self-identification form itself.  On August 25, 2025, OFCCP published its separate comment request, found here.   

The current OFCCP self-identification form carries the Office of Management and Budget authorization number CC-305 and is not set to expire until April 30, 2026. The deadline to comment on the OFCCP’s self-identification form is 11:59 pm Eastern Time on October 24, 2025.   

Until the government reopens, it is unclear what the OFCCP will do in regard to Section 503 and VEVRAA changes. 

How OutSolve Can Help 

OutSolve Consultants have prepared hundreds of Section 503 and VEVRAA plans for employers. Contact us today if you are interested in learning more about our solutions. Or download our Section 503 and VEVRAA checklist to help get you on the right track.