DEI Executive Order and the Rehabilitation Act of 1973

[Guardian]

I am a contracting officer who received a request today from my direct supervisor to immediately terminate our agency's contract for captioning and interpreting services, as it may be contrary to the current executive order, Ending Radical And Wasteful Government DEI Programs And Preferencing – The White House.  Our agency uses this contract to stay compliant with the requirements of the Rehabilitation Act of 1973, primarly to accomodate employees who are deaf or hard of hearing and who may function under a reasonable accomodation in the course of their employment.  After questioning the request, I was told that our counsel had not yet provided a legal opinion.  When I asked my leadership for the basis of the request, I was forwarded an email from our parent agency authored by a procurement analyst, who wrote, "Unfortunately, this is not OPE’s call. GSA reviewed its Multiple Award Schedules (MAS) and determined that this order fell under a DEI MAS."

Firstly, I have done research and can find no such thing as a GSA DEI MAS.  Such a category or flavor of contracts does not exist.  The SIN for this GSA contract is 541930, Translation and Interpreting Services, which per GSA, includes translating written material, interpreting speech from one language to another, and services to facilitate communication with and by persons who are visually or hearing impaired. Services provided must include communication from a source language to a target language.  My specialist wrote GSA, but so far we have neither confirmed that the contract off which our interpreting services order is placed is slated to be terminated, nor that it is categorized by GSA as DEI in any form or fashion.

Secondly, this contract provides reasonable accommodations under the Rehabilitation Act, which is statutory authority outside the ambit of the executive order. I asked my office if they felt we were seeking to cancel executive order-authorized work, or work that is independently authorized by statute.  I believe it to be the latter.  We contracted for these services well before any DEI advocacy initiatives installed by the previous administration.

Lastly, I question whether we are perhaps purposefully politicizing our interpretation of the EO in a hyperbolic or overreaching way so as to vilify the new administration.  Regardless of anyone's political opinions or leanings, I simply do not feel that the intent of the order was to take captioning and sign language services away from deaf federal employees otherwise protected under a long-standing statute.  The spirit of the EO seems to promote a merit system within federal government not disproportionately influenced by considerations of race, gender, and identity.

 

 

 

[C Culham]

My thought.  In following the week full of events I have read that the Civil Rights of Act 1964 is still law even in the light of the EO addressing DEI.  So it would seem that the Rehabilitation Act still stands as applicable statute as well.  Just my thought.

[policyguy]

"I am a contracting officer who received a request today from my direct supervisor to immediately terminate our agency's contract..."

I would suggest getting the request from your supervisor, as well as the requiring activity, in writing, to terminate the contract, document the contract file, and proceed with the FAR and your agency supplement(s) with a Termination for the Convenience of the Government (T4C) of the contract. 

I assume your agency T4C process would start with a stop work order for 30 days (?).  Perhaps by that time there may be more information and you may not have to terminate, but if not, proceed with the T4C.  And be sure to document the file at each step.

Good luck!  

[Don Mansfield]

@Guardian I didn't see a question in your post, so I'm not sure what reaction you are looking for. I think your job is to terminate the contract. If that is too much for your conscience to take, tell your supervisor. Maybe they will be sympathetic. 

Good luck!

[General.Zhukov]

You think your supervisor is making a mistake in telling you to terminate this contract.  Tell them that directly.  After that conversation, if you're still tasked with terminating the contract, then either do it, or tell you supervisor you won't.  As always, get it in writing - although my guess is the normal documentation for any contract termination (extensive) should be sufficient.  

I would check in with a deaf colleague or whomever handles reasonable accommodations and the like.  I routinely double-check when I have doubts that a stakeholder knows about a contracting event that will have an impact on them.  This is normal thing that competent professionals do, even in abnormal times.      

[Retreadfed]

This is more than a contracting action.  As Guardian has indicated, this contract was issued to provide reasonable accommodation for deaf or hearing impaired employees.  This accommodation is required by the Rehabilitation Act and EEOC regulations.  Any failure to provide the accommodation can result in an EEO complaint being filed with the EEOC or the Merit Systems Protection Board, depending on the circumstances.  If the complaint is sustained, the agency can be ordered to provide the accommodation.  The EEOC/MSPB process is time consuming and disruptive to normal agency operations.  Moreover, there is the possibility that the deaf employee's supervisor could incur some personal liability if the complaint is sustained.  In short, you are going to have to provide reasonable accommodation in any event which is something that is in your EEO Officer's rice bowl.  Therefore, I suggest that before terminating the GSA order, you convene a planning session with the stakeholders involved, e.g., the agency EEO Officer, legal counsel, your supervisor, and a union rep if you have a CBA (if you have a CBA things can really get dicey, therefore, your labor adviser needs to be involved also), to determine how to provide the accommodation.  But you are going to have to get your ducks in a row before any such session.  That means getting all relevant information from your "parent agency" and GSA.

[Guardian]

2 minutes ago, Retreadfed said:

This is more than a contracting action.  As Guardian has indicated, this contract was issued to provide reasonable accommodation for deaf or hearing impaired employees.  This accommodation is required by the Rehabilitation Act and EEOC regulations.  Any failure to provide the accommodation can result in an EEO complaint being filed with the EEOC or the Merit Systems Protection Board, depending on the circumstances.  If the complaint is sustained, the agency can be ordered to provide the accommodation.  The EEOC/MSPB process is time consuming and disruptive to normal agency operations.  Moreover, there is the possibility that the deaf employee's supervisor could incur some personal liability if the complaint is sustained.  In short, you are going to have to provide reasonable accommodation in any event which is something that is in your EEO Officer's rice bowl.  Therefore, I suggest that before terminating the GSA order, you convene a planning session with the stakeholders involved, e.g., the agency EEO Officer, legal counsel, your supervisor, and a union rep if you have a CBA (if you have a CBA things can really get dicey, therefore, your labor adviser needs to be involved also), to determine how to provide the accommodation.  But you are going to have to get your ducks in a row before any such session.  That means getting all relevant information from your "parent agency" and GSA.

@Retreadfed you have summed up so many of my concerns.  I spoke to one of our attorneys with my supervisor on the line.  From our parent agency's email, she got the impression that the GSA MAS contract might soon be terminated.  Her first thought was, that does not necessarily preclude us from continuing performance under our agency's order for these services, which by most accounts are statutorily required.  Her other thought was that if we decided to terminate our task order off the MAS, we would most likely have to turn right back around and order these same services another way, be it on the open market or off another vehicle.

I have some additional updates to my original posting to provide.  My specialist had reached out to GSA, which fortunately responded quickly.  Their representative provided us the two emails GSA sent to our parent agency's OPE and acquisition policy office after the executive order was released.  One of them stated we should be aware that we have a few orders (the same email then clearly identified those several orders) that were awarded off MAS contracts, which GSA recently determined "may have" schedules containing DEI-related items.  This then somehow got twisted around by our parent agency's procurement analyst to where it fatalistically became, "Unfortunately, this is not OPE’s call. GSA reviewed its Multiple Award Schedules (MAS) and determined that this order fell under a DEI MAS."  

So far, it seems their OPE does not even have a copy of our order for deaf captioning and interpretation.  It seems none of their attorneys reviewed the order or this apparent directive before it was sent to our policy office and then my supervisor.  My agency's attorney indicated that none of our attorneys had been asked to review the matter.  After I made my colleague aware of these things, they instructed me to hit pause on this request until our senior attorneys and leadership are able to review the matter and make an informed decision.

[Don Mansfield]

8 minutes ago, Guardian said:

So far, it seems their OPE does not even have a copy of our order for deaf captioning and interpretation.  It seems none of their attorneys reviewed the order or this apparent directive before it was sent to our policy office and then my supervisor.  My agency's attorney indicated that none of our attorneys had been asked to review the matter.  After I made my colleague aware of these things, they instructed me to hit pause on this request until our senior attorneys and leadership are able to review the matter and make an informed decision.

Nice work @Guardian!

[Vern Edwards]

Quote

I am a contracting officer who received a request today from my direct supervisor to immediately terminate our agency's contract for captioning and interpreting services, as it may be contrary to the current executive order, Ending Radical And Wasteful Government DEI Programs And Preferencing – The White House.

A request or a directive? In writing?

[Guardian]

1 hour ago, Vern Edwards said:

A request or a directive? In writing?

@Vern Edwards This is how the request came over to our acquisitions policy director, in writing, in the text of an email from a procurement analyst at our parent agency:

"Could you please terminate and deob [task order number] for Sign Language Interpreting Services?  Please let me know if you have any questions or concerns."

I read this as a request, not a directive.  Thanks for prompting me to consider the difference between the two.  

[Vern Edwards]

A very oddly worded email: "Could you please terminate... "

I'd write back, "Please explain your request."

[Jamaal Valentine]

There are Executive Orders targeting illegal DEI and DEIA policies. DEIA adds an ‘accessibility’ element to DEI.

[joel hoffman]

What are “illegal DEI and DEIA” policies vs. “legal Accessibility” policies…?

Opinion - Thats what happens while one keeps campaign promises on the first day in office with questionable competent or adequate advice and knowledge of the scope of the executive order...

Reasonable accessibility and accommodations go way back before - and yes, including the 2017-2021 timeframe.

I wonder who actually composed all those day 1 and shortly thereafter EO’s.   I seriously doubt if DT had the personal time to flesh out the necessary details…

[Guardian]

14 hours ago, Jamaal Valentine said:

There are Executive Orders targeting illegal DEI and DEIA policies. DEIA adds an ‘accessibility’ element to DEI.

@Jamaal Valentine I too wondered what impact addng "accessibility" as a component might have to the applicability and interpretation of the EO.  Per my research, a DEIA initiative could be construed to be illegal if evidence supports that it leads to any of the following:

1) Affirmative Action with Strict Quotas

2) Programs that are Exclusionary of Certain Groups of People

3) Discriminatory Hiring and Promotional Practices

4) DEIA Trainings Encouraging Harrassment or Coercion, for instance those that might run afoul of one's right to free speech, e.g., seeking to silence or coerce in defiance of one's inherent rights to their own religious and political beliefs and affiliations

5) Retaliation Against Employees for Non-participation 

6) Violation of Privacy Rights in Data Collection

7) Accessibility Programs that Discriminated against Non-disabled individuals

8)) Excessive focus on Identity Categories in Decision Making, and

9) Inconsistent Application of Policies

I cannot see how our agency's translation and interpreting services bring about any of these.

James Madison, sometimes called the Father of the Constitution, said that, "Liberty is to faction what air is to fire, an aliment without which it instantly expires."

But just as fire is a life-sustaining chemical reaction, which controlled can facilitate to feed the masses, unchecked, it becomes an apocalyptic force.  Of factions, Madison insisted that we needed more.  Competing interests would ultimately counteract one another, preventing any one from achieving unchecked dominance.  A diverse pluralistic republic would prove the most effective sentinel of the rights of all. 

[Vern Edwards]

The Office of the Undersecretary of Defense issued a memo signed on 28 January that said, in pertinent part:

Quote

 

In accordance with Executive Order Ending Radical and Wasteful Government DEi Programs, dated January 20, 2025, and the U.S. Office of Personnel and Management (OPM) memorandum Initial Guidance Regarding DEJA Executive Orders dated January 21, 2025, effective immediately contracting officers shall cancel or amend solicitations and terminate or partially terminate existing contracts (including set-asides) and contract-like instruments (e.g., Other Transaction Authority agreement) that contain diversity, equity, and inclusion (DEi) and diversity, equity, inclusion, and accessibility (DEIA) requirements. In some instances, a solicitation amendment may be issued or a bilateral modification may be executed to descope work to remove or end DEi and DEIA related requirements (e.g., training or support activities) consistent with the Executive Order and OPM guidance. Component heads shall ensure they identify and disposition not only contracts which their own contracting organizations have directly executed but also those contract actions that have or will be executed by a Federal partner using assisted acquisition.

Word should be coming down from component heads.

[Guardian]

As an update to the subject post, the following language was included in a memorandum sent today, February 5, 2025, to heads and acting heads of departments and agencies from the acting director of OPM, entitled, "Further Guidance Regarding Ending DEIA Offices, Programs and Initiatives":  

 

"Accessibility and Reasonable Accommodation:
The Biden-Harris Administration conflated longstanding, legally-required obligations related to disability accessibility and accommodation with DEI initiatives. President Trump’s executive orders require the elimination of discriminatory practices. Agencies should thus rescind policies and practices that are contrary to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. But agencies should not terminate or prohibit accessibility or disability-related accommodations, assistance, or other programs that are required by those or related laws. In executing reduction-in-force actions regarding employees in DEIA offices, agencies should therefore retain the minimum number of employees necessary to ensure agency compliance with applicable disability and accessibility laws, including those requiring the collection, maintenance, and reporting of disability information."

 

Our agency provides sign language and captioning services to employees who are deaf and hard of hearing via disability-related accommodations prescribed under the Rehabilitation Act of 1973.  To date, I have heard nothing from our agency head or attorneys concerning our parent agency's request to cancel this contract.  The contract (task order) remains active and in effect. @Jamaal Valentine, your earlier assessment was spot on.