Could Trump Eliminate Federal Contractor Bias Watchdog?

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By Jay-Anne B. Casuga

A Labor Department subagency that enforces affirmative action and nondiscrimination requirements on federal contractors has survived attempts in previous administrations to eliminate it or weaken the executive order it enforces.

But it remains to be seen whether President Donald Trump’s administration and a Republican-controlled Congress also will target the agency as part of a potential spending cut plan.

“We learned that there are some budget initiatives that could potentially decimate civil rights enforcement agencies,” Shirley Wilcher, a former Labor Department deputy assistant secretary, told Bloomberg BNA. Wilcher served as the director of the agency, the Office of Federal Contract Compliance Programs under the Clinton administration. She’s now the executive director of the American Association for Access, Equity and Diversity in Washington.

Some of Trump’s budget initiatives may be based on cost-saving proposals made last July by the Heritage Foundation, a conservative research think tank in Washington. Bloomberg recently reported that the Trump administration has close ties to at least one Heritage economist.

The foundation recommended cutting “redundant programs” in its “ Blueprint for Reform: A Comprehensive Policy Agenda for a New Administration in 2017,” naming the OFCCP among those programs.

“In the name of efficiency and eliminating redundancy, this recommendation is being made,” Wilcher said. “I hope that we will not have to face that.”

Heritage Foundation representatives didn’t immediately respond to Bloomberg BNA’s request for comment.

OFCCP’s Elimination Unlikely, Others Say

Other observers, however, told Bloomberg BNA that they don’t think the panic button should be hit just yet.

“Could it happen? Yes. Are there groups calling for the elimination of OFCCP? Of course,” said David Cohen, president of DCI Consulting and a co-chair of the OFCCP Institute, a national nonprofit employer association in Washington. “But I think the likelihood is very slim.”

In the mid-1990s, the Heritage Foundation even advocated for the elimination of the entire Labor Department, Cohen said.

Lawrence Z. Lorber, who was the OFCCP’s director under President Gerald Ford and is now senior counsel at Seyfarth Shaw in Washington, also said he doesn’t believe the OFCCP will be eliminated.

There was nothing from Trump’s campaign that indicated the agency would be eliminated, Lorber said.

Previous Attempts to Shutter Agency Unsuccessful

This wouldn’t be the first time that the OFCCP has been targeted.

During the Reagan administration in the 1980s, there was an effort to weaken the agency and do away with workplace affirmative action, Wilcher said.

Lorber added that a similar effort occurred during George H.W. Bush’s administration after the enactment of the Civil Rights Act of 1991, which strengthened the Equal Employment Opportunity Commission and led some to question the continuing need for the OFCCP.

Both times, the business community rose up to defend the OFCCP, they said.

One reason was that compliance with the agency’s requirements serves a business purpose. It enables companies to proactively eliminate workforce equal employment opportunity barriers that, if left unresolved, could require businesses to defend against expensive discrimination lawsuits, Wilcher said.

The agency also had bipartisan support, she said, pointing out that the Nixon administration strengthened the executive order enforced by the OFCCP.

Lorber added that the notion of increasing diversity in government contractor workforces “was gaining credibility.”

Will Businesses Defend OFCCP Again?

Cohen said he thinks today’s business community would defend the OFCCP again, if needed.

Government contractors support the OFCCP’s mission, even if they aren’t always happy with the agency’s enforcement decisions, he said.

Affirmative action in the federal contractor context isn’t about quotas or preferential treatment, he said. It’s about “casting a wide net in recruitment” and implementing nondiscriminatory employment practices, he said.

“The OFCCP, if done correctly, can be an efficient agency that provides compliance assistance that is transparent and helps employers to ensure nondiscrimination and affirmative action,” Cohen said.

Foundation Calls Agency ‘Redundant.’

The OFCCP has become “redundant” in light of the EEOC’s “strong enforcement powers,” according to the Heritage Foundation.

The EEOC enforces Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on race, sex, religion, color and national origin.

By contrast, the OFCCP enforces Executive Order 11,246, which bars workplace bias based on the same categories as Title VII but also includes sexual orientation and gender identity. Although the EEOC has taken the position that Title VII’s prohibition against sex discrimination includes sexual orientation and gender identity bias, that issue remains open in the federal courts.

Furthermore, the executive order applies only to government contractors, while Title VII applies more broadly to public and private employers.

The OFCCP also enforces Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act.

The blueprint essentially suggests that the EEOC is enough and that the OFCCP isn’t needed anymore, Wilcher said.

“I, for one, take issue with that,” she said, observing that the foundation’s blueprint makes no reference to any of the OFCCP’s other work.

The agency enforces more than just nondiscrimination requirements. she said. It also enforces contractor affirmative action obligations for minorities, women, individuals with disabilities and covered military veterans.

The EEOC doesn’t similarly enforce affirmative action requirements. Nor does it provide protections specifically to veterans.

Additionally, the EEOC is a discrimination-charge-based agency. The OFCCP, on the other hand, conducts compliance audits not triggered by an individual complaint and focuses on eliminating systemic barriers to equal opportunity, Wilcher said.

Efficiency or Ideology?

Wilcher also questioned whether the blueprint is really about government efficiency, observing that it also recommended budget cuts to the Justice Department’s Civil Rights Division.

The group claimed that the DOJ “has filed abusive lawsuits intended to enforce progressive social ideology” and that a spending reduction “would enable core civil rights work to continue while forcing the division to eliminate its activist agenda.”

“Is this efficiency or is this ideology?” She asked.

Elimination Would Be Politically Difficult

The OFCCP’s combined enforcement of EO 11,246, Section 503 and VEVRAA makes the agency “politically difficult” to eliminate, observers said.

In light of the recent women’s marches around the nation, a Trump rescission of the executive order could be seen as a “frontal assault on women and minorities,” Cohen said.

Although Trump can rescind an executive order, he alone can’t repeal Section 503 or VEVRAA. That would have to come from Congress.

It would be politically costly to roll back employment programs for veterans and individuals with disabilities, Cohen said.

OFCCP Also Isn’t Particularly Costly

The OFCCP’s budget hovered around $80 million annually during George W. Bush’s administration and at about $106 million during the Obama administration.

That’s a minuscule amount when compared with a federal government budget that numbers in the trillions.

“Frankly, the OFCCP’s budget in the great scheme of things is not that expensive,” Lorber said.

Transfer Agency to EEOC? Probably Not

Aside from elimination, some have suggested that the OFCCP could be transferred to the EEOC.

But Lorber said such a proposal was rejected by Congress in 1972. “Do you really think they want to give EEOC authority over procurement?” he asked.

Cohen added that the EEOC probably wouldn’t want to take on the OFCCP’s responsibilities either.

The commission already has a “massive” backlog for processing discrimination charges.

“How are they going to do that and, at the same time, monitor contractor compliance?” Cohen asked.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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