The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Monday, June 18, 2012
by Lydell C. Bridgeford
Bloomberg BNA recently spoke with Shirley
J. Wilcher, who oversaw the Office of Federal Contract Compliance
Programs during the Clinton Administration, about the underlying
factors that drive regulatory reforms to ensure federal contractors
meet their affirmative action obligations.
From 1994 to 2001, Wilcher served as
the deputy assistant secretary of the OFCCP. In 2009, the Obama
Administration changed the title back to director while elevating
the position to report to the Secretary of Labor.
Wilcher wasn't a newcomer to the
equal opportunity and affirmative action compliance arena before
arriving at OFCCP. She had worked as the associate counsel for
civil rights for the House Committee on Education and Labor during
the 1980s and as a staff attorney for the National Women's Law
Center. In 2001, she started the consulting firm Wilcher
Global Diversity Management LLC. She is also the executive director
of the American
Association for Affirmative Action.
Bloomberg BNA: How does OFCCP determine whether a current regulation or compliance
requirement needs rescinding or amending?
of the process depends on the objectives and policies of the
President and the Secretary of Labor. For example, during the
Clinton administration, equal pay was a major issue. As a result,
it became a major priority at the OFCCP, Labor Department's Women
Bureau and other agencies. But overall, policy flows down from the
Secondly, constituency groups and
how the agency plans to implement the regulations play a role in
regulatory reforms. Early on, as the head of the OFCCP, I traveled
and met with the agency's staff because they were the
experts. I also met with the federal contracting community.
You want to get a sense of how the rules will play out in reality.
You want to institute proposals that reflect reality.
I can't speak for the current
administration, but that certainly was uppermost in our minds. We
did not want to impose a requirement that would unduly burden
contractors or did not reflect how they did business.
There is also the question of how
long has it been since changes were made to a regulation or
requirement. I understand why there is now a focus on updating
regulations to Section 4212 of Vietnam Era
Veterans' Readjustment Assistance Act of 1974 (VEVRAA) and
Section 503 of the Rehabilitation
Act. It's been awhile since those regulations have been
examined to reflect today's realities. In addition, the
construction regulations regarding industry hiring goals
for women haven't been updated since the 70s.
Bloomberg BNA: What are your
thoughts on the OFCCP director now reporting directly to the
Secretary of Labor?
think it's an excellent outcome. It was something that we
recommended when I worked on Capitol Hill in 1987. At the time, the
director [deputy assistant secretary] of the OFCCP reported to the
assistant secretary for the Employment Standards Administration
(ESA). The regional directors at OFCCP did not actually report to
the director. They reported to the ESA assistant secretary.
However, there was a dotted line to
the director. But in areas that matter, such as who would be
responsible for their performance appraisals, regional directors
reported to the ESA assistant secretary. Before I joined the
OFCCP, there was a change made that regional directors would report
to the OFCCP director, who continued reporting to the ESA assistant
secretary. As you know, the Obama administration abolished the ESA
in November 2009.
Bloomberg BNA: Tell me your thoughts on OFCCP's proposed scheduling letter and itemized listing, which
aims to expand the collection and analyses of data on hiring,
promotion, termination, and compensation during
is always this tension between needing the information on the front
end, so you can make an intelligent decision as to which contractor
needs to be further investigated. That was obviously uppermost in
our minds when I was at the OFCCP. You want a balance and not
overburden the contractor. You want to be able to make an
When I was there, we amended the 41
C.F.R. § 60-1 regulations and created a tiered approach to doing an
investigation based on the information that we had. For instance,
some reviews would only be desk audits, while others were
full-blown audits. We wanted to be able to make choices about the
depth of information to collect.
Back then, we put in place
regulations for an equal opportunity survey, which of course the [Bush] administration promptly rescinded. The whole purpose of
the survey was to underscore the importance of equal and fair pay.
The current EEO-1 data do not provide for compensation information,
so we instituted the equal opportunity survey.
Again, the survey was a selection
device to determine which contractor needed further study. During
my tenure at the OFCCP, we did some testing of the survey and found
that the gender gap and race gap in terms of pay that we read about
in the workforce generally was reflected among contractors'
facilities as well. Interestingly enough, the further up you
went in the chain of command the wider the pay gap. I
understand the current
administration is looking into pay equity.
Bloomberg BNA: Would you
ever consider returning to OFCCP?
should never say never; however, being a political appointee of a
federal agency has its challenges, stresses
and demands, particularly at an agency that deals with the
controversial issues of affirmative action.
BNA: Federal contracting is a lucrative business. The
government reports that spending on federal contracts reached
about $535 billion in fiscal year 2011. Will tougher
affirmative action compliance requirements by OFCCP result in
some contractors having second thoughts about doing business with
the federal government?
doubt it, because of the very reasons that you have stated. It
remains a lucrative business.
Bloomberg BNA: Is there
anything you would like to add?
Wilcher: I am
ultimately optimistic no matter how the decision comes down in Fisher v. University of Texas, which the Supreme Court
will hear in October. The case deals with affirmative action in
The Supreme Court could rule, in
general, that race as a factor should never be considered and
taking race into account is the equivalent of discriminating on the
basis of race. Depending on how the Court hands down the
decision, there may be subsequent cases that will apply that ruling
in employment cases.
It's my hope that the equal
opportunity law and policy will remain the law of the land. And we
will still need an agency, such as the OFCCP, to make that happen.
You have to understand the relationship between affirmation action
and discrimination. When discrimination is eliminated, we will no
longer need an OFCCP or an Equal Employment Opportunity
That is a goal that we may not see
in our lifetime, but I believe it is ultimately achievable when the
"isms"--racism, sexism and other forms of discrimination no longer
If you are interested in
participating in a Q&A on enforcement actions, legal
developments and news related to the Equal Employment Opportunity
Commission or the Office of Federal Contract Compliance Programs or
have a suggestion for a Q&A topic, contact me at email@example.com. You can also follow me on
to post a comment.
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