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?  

Wilcher: Part 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 White House.

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?  

Wilcher: I 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 audits.  

Wilcher: There 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 intelligent choice.

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?  

Wilcher: One 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.

Bloomberg 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?

Wilcher: I 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 higher education.

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 Commission.

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 matter.

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 lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.