If you are a Compliance professional working in higher education in Texas, you likely have concerns about the recent passage of Texas Senate Bill 17 (TX SB 17), outlawing diversity, equity and inclusion (DE&I) offices and activities. Even if you are not such a person, this should be of interest as other states consider modeling similar legislation after the Texas bill.<\/p>\n\n\n\n
The question we are getting is whether or not the Texas law impacts federal affirmative action program (AAP) efforts. And the answer is, \u201cSort of, but not as much as you might think.\u201d Your federal AAP can still function, but the Texas law puts up some guardrails around it that people need to be aware of.<\/p>\n\n\n\n
First and foremost, there is a clause in the U.S. Constitution\u2014specifically Article VI, Clause 2\u2014known as the \u201csupremacy clause,\u201d that states:<\/p>\n\n\n\n
\n\nThis Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.<\/em><\/p>\n<\/blockquote>\n<\/blockquote>\n\n\n\n
This clause has been interpreted to prohibit states, like Texas, from even interfering<\/em> with federal mandates, which would include affirmative action requirements for federal contractors. That\u2019s why you will see \u201ccompliance with any applicable court order or state or federal law\u201d sprinkled throughout the text of the bill as an exception to the general prohibition against implementing any policies or practices that take race or sex into account in any fashion. Texas cannot outlaw federal affirmative action programs.<\/p>\n\n\n\n
And the OFCCP\u2019s nondiscrimination and affirmative action regulations do not actually violate the underlying policy at work in the Texas law. Despite some unfortunate terminology contained in the regulations, and the fact that the regulations themselves are antiquated compared to OFCCP enforcement since the Obama administration, the AAP does not require quotas or any other form of preferential treatment\u2014in fact, the AAP expressly prohibits<\/em> them1<\/a><\/sup>. So a compliant federal AAP should<\/em> not offend the fine public servants of the Texas Legislature.<\/p>\n\n\n\n
We say \u201cshould,\u201d because of the unfortunate terminology used in the regulations, and the fact that regulations are currently (and have been for years) out of step with the OFCCP\u2019s actual practice. A cursory glance at the regulatory requirements would give one the impression that an AAP prepared in accordance with Executive Order 11246 is only for the benefit of women and people of color, and part of that benefit involves hiring quotas.<\/p>\n\n\n\n
Somewhat ironically, it was our first Black President who ordered the Department of Labor to enforce the Executive Order both ways, requiring AAPs protect women and<\/em> men, people of color and<\/em> the race\/ethnicity groups individually, including Whites2<\/a><\/sup>. For at least the last decade the OFCCP has been requiring contractors to set placement goals for men and\/or Whites where appropriate, and vigorously pursuing potential discrimination and actual discrimination claims against both groups. Unfortunately, revised regulations have been languishing for years and have not yet been updated to reflect the reality \u201con the ground.\u201d<\/p>\n\n\n\n
This will likely lead to confusion and skepticism for those tasked with complying with TX SB 17, but the problem is far from insurmountable. You will want to address this issue when you address the first \u201cguardrail\u201d discussed below.<\/p>\n\n\n\n
The \u201cGuardrails\u201d<\/strong><\/p>\n\n\n\n
As noted above, while federal AAPs are not barred by TX SB 17, the law does erect some guardrails around it that practitioners need to address.<\/p>\n\n\n\n
Lawyer Involvement<\/em><\/strong><\/p>\n\n\n\n
The first guardrail is that TX SB-17 now requires a lawyer to be involved in your AAP\u2014several of them, in fact.<\/p>\n\n\n\n
Prior to spending any money appropriated by the state, the governing board of the institution must submit to the state legislature and the Texas Higher Education Coordinating Board a report certifying compliance with this new law. This will likely require a narrative description of the AAP. While the law itself does not require such a narrative be prepared by an attorney, the heavy reliance on attorney attestations throughout the bill suggests that statements prepared by attorneys will likely be given greater weight. Another way to look at it is that statements not<\/em> prepared by an attorney might be viewed with more skepticism. So attorney involvement here does not guarantee acceptance, but lack of attorney involvement will likely lead to additional scrutiny.<\/p>\n\n\n\n
The Texas law expressly prohibits \u201cconducting trainings, programs, or activities designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation.\u201d And, of course, the AAP is chock full of such trainings, programs, and activities.<\/p>\n\n\n\n
The exception for federal law here is not a blanket one, however. The law exempts such trainings, programs, or activities that are \u201cdeveloped by an attorney and approved in writing by the institution\u2019s general counsel and the office of the attorney general for the sole purpose of ensuring compliance with\u2026federal law.\u201d<\/p>\n\n\n\n
So after all the AAP reports and analyses are run, anything you do<\/em> based on your AAP results needs to at least be signed-off on by an attorney. Curiously, the law does not define the term, \u201cattorney,\u201d so it appears that any kind of attorney will do and admission to the Texas Bar (or any other, for that matter) does not appear to be a requirement. But that attorney should be involved in the development process to some degree. Do they have to craft the language of all your action plans themselves? Doubtful. The degree to which your attorney needs to be involved will be largely guided by that attorney\u2019s individual preferences. Some will not be comfortable signing off on something they did not have a hand in developing, while others may be content to review materials for legal compliance after the fact.<\/p>\n\n\n\n
This does not appear to mean that the AAPs themselves must be prepared by a lawyer.<\/p>\n\n\n\n
The Compliance Function Cannot Reside in the DE&I Office<\/em><\/strong><\/p>\n\n\n\n
To the extent that your Compliance function resided in your DE&I department, that will have to change, obviously, because TX SB 17 flatly outlaws DE&I departments\/offices. Compliance can stand alone on the org chart as its own department, or reside in (most commonly) Human Resources or Legal. The Texas law clearly prefers that the function reside with Legal. If it resides outside of the Legal department, it must either have its own attorney employee, or utilize outside counsel.<\/p>\n\n\n\n
Again, the purpose here is not to require contractors to use law firms to prepare their AAPs. Rather, Texas appears to want someone involved to keep the program within the four corners of the law.<\/p>\n\n\n\n
Publishing Training Materials<\/em><\/strong><\/p>\n\n\n\n
Regarding training in particular, TX SB 17 requires any training including diversity, equity, bias, oppression, gender identity, or related concepts (if approved), must make the training materials \u201cpublicly available on the [institution\u2019s] Internet website.\u201d<\/p>\n\n\n\n
This may create more difficulty for higher education institutions in Texas to use commercially available training, because third-party vendors may not be overly excited to have their proprietary, and presumably copyright-protected, materials from being published for all to see (and crib).<\/p>\n\n\n\n
Curiously, the law has no provision regarding how long such materials have to remain available to the public.<\/p>\n\n\n\n
Possible Challenge<\/strong><\/p>\n\n\n\n
According to a plain reading of the legislative text, it appears that pretty much every aspect of the AAP (past the development of required reports and analyses) must be approved in writing by both the institution\u2019s general counsel and the State Attorney General\u2019s Office<\/em>. That means your action plans cannot be implemented prior to receiving explicit permission from the State.<\/p>\n\n\n\n
No matter how that is implemented, it is likely to at least slow down the federal AAP, perhaps significantly, and undermine federal policy goals.<\/p>\n\n\n\n
That is a likely \u201cin\u201d for those looking to challenge TX SB 17. As noted above, the Supremacy Clause invalidates state or local laws that run counter to or interfere with federal priorities. If the OFCCP is reading this, some contractor guidance would sure be appreciated, because few, if any Texas institutions of higher education will have the resources to mount a Constitutional challenge in order to speed up the AAP process.<\/p>\n\n\n\n
But the OFCCP should be concerned about the degree to which TX SB 17 could undermine their entire mandate. Let\u2019s assume University X has an AAP start date of January 1. It is not unusual for the AAP preparation process to take at least a month, so the AAP isn\u2019t really \u201cdone\u201d until February, and the OFCCP is aware of these \u201cgaps\u201d and has dealt with them for years without much concern. But if it takes another month, or two, or three, to get the \u201caction-oriented programs\u201d approved by the State Attorney General\u2026the OFCCP has much more reason to become concerned.<\/p>\n\n\n\n
Self-Identification Still Allowed<\/strong><\/p>\n\n\n\n
The new Texas law also expressly prohibits higher education institutions from compelling, requiring, inducing, or even soliciting any \u201cstatement of a person\u2019s race, color, ethnicity, or national origin\u201d from employees or applicants for employment. But there is a clear exception \u201cto record any necessary demographic information.\u201d<\/p>\n\n\n\n
Here, the exception is not qualified in any way, and your attorney should not have to draft a statement explaining why applicants and employees are asked to self-identify their sex and race.<\/p>\n\n\n\n
However, to the extent that your organization is in the habit of soliciting demographic information that is not explicitly required by federal or state law, those practices should be reviewed immediately. For example, while the OFCCP\u2019s regulations expressly prohibit discrimination on the basis of sexual orientation or gender identity, regulations do not actually require you to solicit that information from applicants or employees.<\/p>\n\n\n\n
Federal contractors must solicit sex, race\/ethnicity, disability status, and veteran status (according to the four enumerated VEVRAA veteran categories, often referred to as \u201cprotected veterans\u201d). Anything beyond that would need to be supported by other federal laws or regulations, or state or local law, or risk running afoul of TX SB 17.<\/p>\n\n\n\n
Talking Points<\/strong><\/p>\n\n\n\n
There are a few obvious issues that are likely to arise for Compliance professionals in Texas higher education, so we thought we would highlight a few talking points.<\/p>\n\n\n\n
First, the \u201caffirmative action program\u201d or \u201cplan\u201d is the opposite of what most people think. Today, the term \u201caffirmative action\u201d is understood to mean providing the disadvantaged with an advantage, like a quota. But it is important to note that the OFCCP\u2019s regulations rely on the original<\/em> definition of affirmative action, which actually means taking proactive steps to ensure that nondiscrimination laws are being followed.<\/p>\n\n\n\n
In the employment context, quotas and the like are unambiguously illegal. The only way a quota might be permitted would be in the context of remedying an actual instance of discrimination. The OFCCP\u2019s regulations are designed to help contractor employers avoid<\/em> the need for something like a hiring quota by not violating the law in the first place<\/em>.<\/p>\n\n\n\n
So if \u201caffirmative action\u201d now means \u201cquotas,\u201d a federal \u201caffirmative action program\u201d is actually an affirmative action prevention<\/em> program, because it is designed to avoid the need for things that the rest of society now labels \u201caffirmative action.\u201d<\/p>\n\n\n\n
We do not recommend labeling your AAPs as such however, because we caution against giving the impression that your organization is ideologically against what so many have fought so hard for over generations. But the term, \u201caffirmative action\u201d is problematic here. We recommend calling it a \u201cnondiscrimination program\u201d or an \u201cequal employment opportunity program,\u201d because that\u2019s actually what it is, and that avoids the distraction almost guaranteed when the words, \u201caffirmative action\u201d appear on the scene.<\/p>\n\n\n\n
Second, just stop talking about \u201cplacement goals.\u201d That is an unfortunate term the OFCCP\u2019s regulations use, but the regulations do not actually require you<\/em> to use that term. Placement goals are not \u201cgoals\u201d in the way that normal people think of that term. They are not something our recruiters and hiring managers are tasked with trying to achieve. They are benchmarks<\/em> for measuring how well or not your hiring \u201cmachine\u201d is working.<\/p>\n\n\n\n
If that seems like an overly thin, lawyerly distinction, it is not. Your \u201cgoal\u201d is never<\/em> to hire more women, or whatever. Your goal is equal opportunity, period. Placement goals are only used in a \u201clook-back\u201d fashion to compare the actual outcome of your employment policies and practices to what we think we should expect to see if the \u201cmachine\u201d is running without discriminatory elements. Having set a placement goal is simply to say that we have reason to believe that the machine isn\u2019t working properly, so we try to identify what is mucking up the gears. If we can\u2019t find a cause in our machine, that \u201cgoal\u201d and even the fact that the goal is \u201cmissed\u201d becomes meaningless. Sometimes the demographics are just going to look \u201coff,\u201d but as long as they don\u2019t look the way they do because of illegal discrimination, they are what they are, and the employer has no obligation to do anything about them.<\/p>\n\n\n\n
Finally, we noted above that the Executive Order AAP is not really \u201cfor\u201d women and people of color, despite how the underlying regulations read. It is too often referred to as \u201cthe AAP for women and minorities,\u201d and we need to put a stop to that. The more accurate description is the AAP for sex and race\/ethnicity, because both sexes (and all sexual identities and orientations) and all race\/ethnicity groups are protected by an Executive Order AAP.<\/p>\n\n\n\n
Looking Ahead<\/strong><\/p>\n\n\n\n
\u201cAffirmative action\u201d is under attack; of that there is no doubt. Many Compliance professionals have been surprised recently to learn that they are not actually in the \u201caffirmative action\u201d business. They are in the nondiscrimination business, and always have been, it\u2019s just that sloppy terminology and misunderstanding has obscured that.<\/p>\n\n\n\n
The future of \u201cour\u201d kind of affirmative action is strong. It is rooted in the Civil Rights Act, which has seen no serious challenges to the underlying policy of equality. So, while other states or municipalities across the country may model future legislation after TX SB 17, they will be no more of a threat to your AAP. They may, however, require some \u201cextras\u201d that will be important to manage, so a thorough reading and analysis of these new laws will be critical.<\/p>\n\n\n\n
If you have questions about this or any other OFCCP-related matter, please feel free to reach out<\/a>.<\/p>\n\n\n\n
\n\n\n
- Note that here we are talking about \u201csupply and service\u201d AAPs. We recognize that construction AAPs do involve set hiring \u201cgoals,\u201d but they still do not operate as quotas and construction firms are not impacted by TX SB 17. \u21a9\ufe0e<\/a><\/li>
- Note that we capitalize all official race\/ethnicity categories, whether they are a proper noun or not, in accordance with longstanding guidance from the EEOC and accepted journalism practice. \u21a9\ufe0e<\/a><\/li><\/ol>","protected":false},"excerpt":{"rendered":"
If you are a Compliance professional working in higher education in Texas, you likely have concerns about the recent passage of Texas Senate Bill 17 (TX SB 17), outlawing diversity, equity and inclusion (DE&I) offices and activities. Even if you are not such a person, this should be of interest as other states consider modeling […]<\/p>\n","protected":false},"author":101017,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":"[{\"content\":\"Note that here we are talking about \u201csupply and service\u201d AAPs. We recognize that construction AAPs do involve set hiring \u201cgoals,\u201d but they still do not operate as quotas and construction firms are not impacted by TX SB 17.\",\"id\":\"e7f876aa-d13e-4ef8-9f37-dc5db67b38b9\"},{\"content\":\"Note that we capitalize all official race\/ethnicity categories, whether they are a proper noun or not, in accordance with longstanding guidance from the EEOC and accepted journalism practice.\",\"id\":\"678ec69b-3a82-42cc-96b7-de9146f5913f\"}]"},"categories":[369,4,617,144,154],"tags":[18,504,143,79],"class_list":{"0":"post-6508","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-diversity","7":"category-eeo-news","8":"category-federal-contractors","9":"category-ofccp","10":"category-veterans","11":"tag-affirmative-action-planning","12":"tag-compliance","13":"tag-federal-contractor","14":"tag-ofccp","15":"entry"},"yoast_head":"\n
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