An Expert Insight Series
Part 2: What is America First Legal and What Are They Challenging?
If you can stand to follow the news these days, you may be aware that America First Legal—a non-profit foundation run by former Trump Senior Advisor Stephen Miller—has begun filing complaints with the OFCCP regarding the “facially discriminatory” employment practices of three major airlines, alleging that the practices in question stem directly from their federal affirmative action obligations. In other words, affirmative action requirements for federal contractors appear to be “under attack,” but they are not (not really). Let us explain.
America First Legal has lately been leading the charge challenging DE&I practices at major employers in the United States. The operating theory appears to be that diversity efforts are, in and of themselves, discriminatory and therefore must be halted in all aspects of American life. This conveniently lets organizations like America First Legal off the hook when it comes to having anything even smelling of actual evidence to launch their attacks; they simply equate all DE&I with “illegal discrimination.”
America First Legal and their ilk are wise to shy away from direct attacks on the OFCCP’s regulations. Any direct challenge to federal AAPs would only end up highlighting that federal AAPs don’t need to be fixed, and that the people leading the challenge are either intentionally muddying the waters, or too unintelligent to understand the regulations. Either way, they would lose credibility.
Instead, America First Legal is attacking (or starting to attack) the OFCCP itself. And the attack is two-pronged. First, there is the spurious claim that corporate DE&I programs are the direct result of the OFCCP’s regulatory requirements. That represents the tiniest potential foothold into an argument attacking the regulations themselves. Unfortunately, it ignores the fact that DE&I has literally nothing to do with a federal AAP. The OFCCP’s regulations do not require anyone to implement a DE&I program. In fact, the regulations are entirely silent on the issue other than the repeated admonishments that the regulations do not provide justification for breaking the law.
The second prong is much stronger, relatively speaking. Here, the argument seems to be that the OFCCP is not doing its job, that in focusing so heavily on discrimination against women and people of color, the agency ignores—or worse, encourages—discrimination against men and Whites1. And the argument here is so much stronger because the OFCCP has failed to maintain their own regulations to reflect modern practice.
Stay tuned for “Part 3: How Did We Get Here and Where Are We Headed with DE&I and Affirmative Action?“ coming next week as we explore the lawsuits attacking the OFCCP.
If you’re interested in learning more on this topic, it just so happens we’re hosting a free webinar entitled, “How to Talk About Affirmative Action” on March 11. Sign up here if you want to catch that show.
And as always, if you have questions about this or any other OFCCP-related matter, please feel free to reach out to us at BCGi@Biddle.com.
- Note that BCGi capitalizes all official race/ethnicity categories, regardless of whether or not the category description contains a proper noun, in line with longstanding EEOC practice. ↩︎