An Expert Insight Series

Part 3: How Did We Get Here? And Where Are We Headed with DE&I and Affirmative Action?

Jump into the way back machine, time travel to 1974, and you will find a very different OFCCP landscape. Yes, back then the agency was pretty uninterested in potential discrimination against men or Whites in general. And yes, stronger affirmative action was encouraged based on placement goals that were allowed to operate more like voluntary quotas.

That approach was fully abandoned almost a quarter century ago when the agency last overhauled its E.O. 11246. Contractors were no longer required to “declare underutilization” and implement strong action plans designed to more directly influence employment decisions. We pushed that sort of affirmative action down to colleges and universities citing the “pipeline problem” and began focusing on equal opportunity and nondiscrimination.

But the OFCCP’s regulations still only require contractor employers to actively look for possible discrimination against women and POC. In an audit or complaint investigation, the OFCCP will absolutely look for potential discrimination against men and Whites as well, and will certainly pursue any indicators they may find. So while employers are not required to run analyses looking for discrimination against men or Whites, that does not mean such practices are being allowed by the OFCCP.

And the agency’s regulations do a pretty poor job of explaining the “comparison of incumbency to availability” and “placement goal”-setting process, placing far too much emphasis on “utilization” without adequately clarifying that utilization is a benchmarking tool used to measure the overall health of your employment machine, not an actual “goal.”

So to the uninitiated, it looks like the OFCCP’s regulations require contractor employers to measure “diversity” in the workforce, and where there is insufficient “diversity,” slam the door on men and Whites until “diversity” is achieved.

And here’s the thing. The OFCCP’s regulations are in such bad shape they often leave federal affirmative action practitioners with the wrong ideas, leading to federal affirmative action programs that might actually be violating the law. Where that is the case, that needs to be fixed, and the OFCCP is responsible. But that is not the focus of the America First Legal campaign.

Here’s the other thing. I and my colleagues will tell you that we have spent a significant portion of our careers advising compliance professionals on how to deal with runaway DE&I departments. It is a well-known fact in our industry that one of the functions of compliance involves informing the organization when well-intentioned DE&I initiatives deviate from the law. We have seen time and time again where organizations will accept the risk of a “reverse discrimination” lawsuit for the potential public- and employee-relations boost they can get from a strong and well-timed DE&I initiative. So it is absolutely possible that a federal contractor employer would have a DE&I practice or two that go too far. It just has nothing to do with them being a federal contractor and has nothing to do with their AAP.

One thing I have never run into in my career, nor has anyone else I know in the industry, is the OFCCP inquiring about the legality of a contractor’s DE&I efforts. Never. That is probably a pretty big, gaping hole in the OFCCP’s otherwise strong mission to eliminate discrimination in the workplace. Not because DE&I is inherently discriminatory (it is not), but because the OFCCP has seen the same things I and all of my colleagues have seen over the years where DE&I has pushed the envelope. Not every DE&I program is problematic, but enough are to warrant some scrutiny, and that probably needs to be a topic of conversation within the OFCCP.

But all this is nuance that gets lost in the all-caps sound bites of today’s discourse.

The number one thing that the OFCCP can do to help themselves and the federal contracting community is to get off their rear ends and do the hard work of updating their regulations implementing Executive Order 11246. The agency, its regulations, and the jobs of compliance professionals across the nation are vulnerable to these hyperbolic attacks because the agency has decided to regulate through “information collections” and unenforceable sub-regulatory guidance rather than update their regulations.

Now a regulatory overhaul runs the risk of being seen as in response to attacks by organizations like America First Legal, but that’s just tough cookies for the OFCCP. The time is not now; it is past time for the agency to align its regulatory framework and terminology with modern practice. Their continued failure to do so only helps fringe groups muddy the water for the public and gain traction, putting the livelihoods of thousands of government and private sector workers in real danger.

In the meantime, BCGi will continue to encourage contractors to move away from terms like “affirmative action” and “placement goals”—“regulatory terms” that the regulations don’t actually require anyone to use—and to better control the messaging surrounding what the compliance function is all about (nondiscrimination and equal opportunity).

In fact, it just so happens that we are 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.