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Welcome to the Regulatory Transparency Project's Fourth Branch podcast series.
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All expressions of opinion are those of the.
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Speaker Tory Transparency Project's Fourth Branch podcast. My name is
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Matthew Sautel, and I'm an assistant director of Practice Groups
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of the Federalist Society. We are honored to host today's
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discussion on the regulatory changes proposed by the UFCCP on
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July first, twenty twenty five, and is my pleasure to
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introduce our moderator, Linda Chavez, who served in the Reagan
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administration as the Director of the Civil Rights Commission and
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the White House Director of Public Liaison, and now as
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the chairman of the Center pre Equal Opportunity. Learn more
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about today's speakers, I invote you to view their full
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biographies at RAG project dot org. Thank you for being
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with us today, Linda and Flora's yours.
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Thank you very much, Matt, and it's a pleasure to
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be here in it a pleasure to talk with our guest,
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who is Brett Sweringen. He's a senior counsel in Miller
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Johnson's Employment and Labor practice and a natives of Southwest Michigan.
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But he graduated from Law School at the University of Chicago.
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But more to the point of today's discussion, he was
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also at the Office of Federal Contract Compliance Programs during
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the first Trump administration, and he also sits on the
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Civil Rights Commission's Advisory State Advisory Committee for Michigan. So welcome, Brett.
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It's a pleasure to be here. London, thank you well.
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I have a long history with Executive Order eleven two
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four six, and we may get into it a little
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bit later in the program, but I thought it would
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be helpful for those who are listening to us who
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may not have much of a history on this executive
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order understand how it came about, first promulgated in one
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form by JFK in nineteen sixty one, and then changed
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and made actually more effective from the advocates point of
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view by London Johnson, and that was when it became
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Executive Order eleven two four six. Can you talk a
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bit about the original order, how it led the way
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to requiring all federal contractors to implement hiring goals and
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timetables for black, Hispanics and certain other underrepresented minorities.
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Yeah, I'd be happy to, Linda.
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You know, I like to zoom out of it and
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view Executive Order one or two four six as just
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part of this long story of our nation's history and
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has struggle against our original sin of slavery. And you know,
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after one hundred years post some accipation, we still had
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widespread segregation.
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Against African Americans. And that was where we were when
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the civil rights who when really became moving in the
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fifties and sixties.
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And a piece of that civil rights movement that the
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government sees on was the books that the federal government
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has with federal contractors who, by nature of taking money
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from the federal government, the government has the ability to
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put certain strings on that money.
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And I think the first time the federal.
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Government used those strings for civil rights, actually I believe
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that happened during World War Two, so it goes back
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to FDR. But then, as you said, I think JFK
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was the first to use the phrase affirm of action
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in a nineteen sixty one executive order. I think we
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all know about the nineteen sixty four Civil Rights Act,
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which was obviously a monumental legislative achievement by President Johnson,
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And then a year after that there was the decision
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made by the Johnson administration to kind of take the
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next step forward in terms of the federal contractor requirements.
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And that's one what we now know is Executive one
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one two pour six was signed by President Johnson. Originally,
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like the I shouldn't say that, originally, the executive order
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only dealt with race, race, national origin, color. Not too
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long after that sex was added, I think it was
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nineteen sixty seven at the Johnson administration amended one one
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two four six to.
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Add sex discrimination.
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I don't believe the agency was known as LFCCP at
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that time.
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That that name came I think in.
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The seventies, but OLFCCP quickly became what I would argue
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was the most powerful civil rights enforcement agency in the
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federal government. And that's because, perhaps a surprise to some
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of our listeners, almost a quarter maybe even I think
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twenty five percent of Americans work for companies that have
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federal contracts. So that's a huge piece of the workforce
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that OLFCCP had jurisdiction over. And as their enforcement activities involved,
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especially I think this guy really going in the late
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seven these which which honestly was in tandem with the
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frustration that the people in the civil.
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Rights movement, both on the outside on the.
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Inside the government, we're having seeing frankly less progress on
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they were hoping to, Especially after all the work that
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happened in the sixties, there started to be the requirements
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to enact affrontive action plans by federal contractors that.
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Were very detailed and had real teeth.
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And in connection with those affrontive action plans, there were
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you were regularly audited by the federal government by o OFCCP,
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and those audits were quite extensive. And then if the
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agency found things that they thought were not right, that
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they viewed as either actual discrimination or just failing to
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do affrontive action the way that they thought you should
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be doing, there were real consequences and being a federal contractor,
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you know, the biggest one is that you will lose
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your federal contract. And for some contractors you can think of,
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like the defense industry, that is a massive family.
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I mean, that would be the end of a business.
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So there is a ton of leverage.
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There was a ton of leverage that this agency held,
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and that's why I would say it was the most
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potent civil rights enforcement agency in the federal government.
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Let me just interrupt your history and it's one of
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the advantages of being old Pratt is that I was
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actually around during that period and remember very distinctly the
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Nixon administration's role. Interestingly, at the time, I was a
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registered Democrat. I actually worked on the House Judiciary Committee
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for a period and during that during that time in
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the nineteen seventies, when Richard Nixon came to office, he
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had a labor secretary, Secretary Schultz, George Schultz, who later
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became quite famous as Secretary of State under President Reagan,
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and they enacted something called the Philadelphia Plant. Didn't like
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that very much because it hit labor unions and quite
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going beyond the idea of goals. These were actual quotas
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that were imposed, and it's very interesting to see the
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politics of affirmative action and how those have changed. I
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always tell people when they think, well, you know you're
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a conservative but used to be a Democrat, Well, I
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haven't changed my views on any of these issues in
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the interim period, and was very much opposed when the
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Nixon administration came down with those quotas for labor unions.
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And fast forward to two thousand and one, when I
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was nominated to be Secretary of labor under George W. Bush.
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I got a call from George Schultz, of course, who
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was out of the government. He and I had locked
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horns a few times on this issue, which I'll talk
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about a little bit later, and he just wanted to
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assure me that he had no choice, absolutely had to
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do this because the unions were absolutely racist, and it
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was the only way you could get them to hire
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into their apprenticeship programs Blacks, Hispanics and others. So just
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a little bit of minor history, and also to indicate
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that the politics of this issue has changed a great
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deal over time. I would like to talk now and move,
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if you will, to talking about the new executive Order
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that was one of the first that was handed down
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by President Trump when he came into office in January.
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It's called Executive Order one four seven three, and it
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basically got rid of everything in eleven two four six.
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Would you again just describe briefly what it's in. It's
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actually more than just rescinding eleven two four six. It
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went quite beyond that in terms of its scope. You
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could give us a little thumbnail sketch of the new
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executive Order.
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Yeah, and you speak of the politics changing and this
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is this is a very crystallized example. This was, I say,
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I think the second day of Trump's second term he
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issued what's known as one four one seventy three and
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in one fell swoop.
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And this wasn't even the main main subject of the EO.
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He just revoked Executive Order one one two six, which,
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of course, as an executive order, can't be revoked by
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by huge administrations. And he took a directly antagonistic view
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towards what LBJ had done sixty years ago, finding that
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ofccp's enforcement regime under one one two four six was
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leading to, in his words, dangerous to meaning and immoral
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race and sex based preferences. And he throughout what he
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viewed as the agency's goals of promoting diversity and affirtive
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action and workforce balancing. Those are from the text of
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the executive order in favor of three different things, individual, initiative, excellence,
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and hardware. And given that this was the a one
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one two four six is the guts of OCCP.
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It does two.
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Other things that we will discuss later, but by far
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the core of os CCP has been combating race and
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sex discrimination, and unique among federal enforcementtencies promoting affirmative action.
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Uh And given that that.
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All relied on the authority of EO one one two
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four six President Trump, and one four one.
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Seventy three just was just gutted that authority.
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One other thing I want to mention, because it is
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very significant, not directly related, is that executive order also
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made clear that federal contractors could face false claims act
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liability by virtue of being a federal contractor if they
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were found to be discriminating. And this was part of
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the anti dei focus of that order. But that is
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a big new thing in the federal contractor space.
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Just to go in a little bit more into what
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the new Executs Kit of Order does in terms of
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not just basically eliminating eleven two four six, but in
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terms of the Office of Federal contract Compliance programs. First
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of all, executive orders, you know, they are pieces of paper,
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They do have some authority, but particularly when you're dealing
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with a federal agency, there have to be some implementing regulations.
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And OFCCP has now put out for public comment a
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proposed regulation. It's one of the reasons we're talking about
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it on the Regulatory Transparency Project podcast if you could
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go into that a little bit. There's very little time
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left to be able to reply, but there may be
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some listeners who might think of doing so. But if
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you could go into that a little bit, please, Yeah.
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So, seconive order is a piece of paper OFCCP has
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been doing this work for sixty years, and there's a
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a large regulatory regime that has been built up via
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better regulations that spell out the requirements for federal contractors.
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There's two other significant authorities that OCCPN forces. One is
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the Veterans Vietnam Era Veterans Readjustment Assistance Act that is
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non discrimination and affirmative action for veterans. And then it
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also enforces Section five h three of the Rehabilitation Act
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that is non discrimination and affirmative action for individuals with disabilities.
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So those two authorities are both statutory. They have not
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been touched by President Trump's new Executive Order E one
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one two four.
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Six On their hand, is no more so.
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What the administration needed to do was get the it's
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regulations aligned with.
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The new position taken by the Trump administration.
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So earlier in July they issued three separate proposed regulations,
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one basically just to get rid of all the EO
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one one two for six REGs because they don't have
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any legal authority at this point. And then second and
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to adjust the VEBRA REGs and the Section five OHO
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three REGs to account for the fact that they now
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are independent and they can't rely on the EO one
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one two for six riggs, which again now don't exist.
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There are two proposed changes. Is now a good time
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to talk about that?
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Yes, absolutely, let's talk about it. But also tell our
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listeners that the comment period public comment period, unless it
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is extended, expire September second, So we've got very little
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time left.
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Yes, September second is the deadline, and I don't expect
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an extension, though only only the Trump administration knows for sure.
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It just seems like they're they're kind of in a hurry.
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That's my take on things. So for the most part,
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these proposed rules are not substantive. They're just trying to
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again align the regulations with the Trump administration petition. But
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there's two exceptions that are substantive proposed changes, and that
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both refers.
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To the individual's disabilities.
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One of the requirements that currently applies to federal contractors
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in terms of employing individuals with disabilities is that you
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are required to request your employees to self identify the
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disability status for purposes of your compliance with the affrontive.
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Action and non discrimination rules for individuals with disabilities.
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The new rule proposes to get rid of that self
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identification requirement. And the reason they argue is they believe
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that asking employees to self identify is a violation of
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the Americans for Disabilities Act.
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So that's one proposed change that's substantive. The other proposed.
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Change is to withdraw the seven percent utilization goal for
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individuals with disabilities.
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That's again that's currently the rule.
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If you are a federal contractor, the agency says you
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must aim to at least employ seven percent of your
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workforce people with disabilities. That would be gone if this
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rule goes into effect. That also means that the affrontive
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action plan that a contractor creates for individual disabilities would
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not have any numerical or statistical analysis trying to say
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whether or not they're hitting that seven percent target. So
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that's the two substance changes that are part of the proposals.
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Everything else is just administrative.
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Brett. I'd like to talk about the practical consequences of
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what eleven two four six and the OFCCP office have
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meant for private employers. I sat for twenty five years
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on corporate boards, including two a very large company, each
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of which employed more than one hundred thousand workers. So
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definitely came under AFCCP, and you talked about it as
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the most important office in terms of civil rights enforcement,
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and I think that's largely because it was proactive. You know,
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the EEOC, you have to have somebody who basically brings
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a complaint to the EC, they have to exhaust their remedies,
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and then the EOC may or may not take it up.
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It's very different with OFCCP. Employers are, if they are
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federal contractors, required to have these plans in place, and
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visits by OFCCP to gather data to ensure that the
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numbers that the company sends into Washington are in fact accurate,
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and the kinds of remedial actions that will be taken
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if those numbers don't satisfy OFCCP are considered quite onerous.
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I mean, nobody wants to hear if you're in corporate
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America from the OFCCP. So I'm interested if you have
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a sense. I'm no longer on those boards. I've retired,
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So I don't know how it's being viewed within corporate
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America except sort of broadly and generally. Do you have
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a sense of that, is this something that's being welcomed
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in certain circles or not?
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From where I sit, the dominant sense I get from
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clients is confusion and maybe some fear. There probably could
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be relief there, but that's just not what is coming
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to me to be where I sit in technical calls.
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But I mean, you're completely right, Linda. And when I
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said that it was probably the most important enforcement agency, yes,
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it's because it was an active one, like every year
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you had to redo your front of action plan.
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Matt. You have talked about OFCCP as being one of
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the most important enforcement agencies, and we talked about why
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the EEOC has to wait for something to come to
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them by way of complaint, but talk about that burden
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on employers and what happens when they have to put
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together an affirmative action plan.
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Yeah, Linda, Oh of CCP is very unique in this regard,
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unlike the other civil rights and force of agencies. If
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you are a federal contractor, whether or not you've done
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anything wrong, you have a very.
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Significant compliance burden.
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As I've mentioned before, there are three different authorities that
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OOFCCP enforces race and sex under one one two four, six,
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veterans under VEVERRA, and individuals divisibilities under Section five O three.
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Each of those three authorities requires federal contractors to create,
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on an annual basis a affirmative action plan, and that
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is a formal document, many many pages long in most cases,
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that in very detailed fashion, documents the steps that that
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contractor is taking in order to comply with its non
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discrimination and affrontive action obligations and also document the effects
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of those steps and what they're seeing in their numbers.
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There's a lot of record keeping and documentation requirements that
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comes along with the OCCP regulate. And then again, if
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you see that it looks like there may be discrimination occurring,
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you need to document to the department's satisfaction that.
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You're taking remedial remedial action.
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So that's just standard operating procedure if you're a federal
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contractor to maintain on an annual basis three AAPS. In
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addition to that, there's the enforcement side. If you are
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a federal contractor, you are regularly scheduled. Again I'm talking
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about the world prior to Trump Trump's second administration. Your
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regularly scheduled for compliance reviews. And for a compliance review
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that means OFCCP comes in and will take a very
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detailed book at each of your aaps and see if
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they think you're doing everything correct. That goes from being
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very technical are you are you kind of dotting your
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eyes and crossing your t's to a very thorough evaluation
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of your application and hiring data and using ctiscal tools
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to determine based on o ofccp's analysis, if they think
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there is likely discrimination occurring, and if they do, then
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you move into a more aggressive enforcement posture which requires
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more data, more documentation, back and forth, some kinds of
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attempt at conciliation, and then if that doesn't work, this
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can spill in a litigation. But all this can take months,
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it can take years, and this was just a very
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big compliance burden on a federal contractor. Again, before President
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Trump revoked Executive Order one D four six, we.
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Did talk about the fact that executive orders can be
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issued and rescinded when administrations change. Do you anticipate that
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if there is a change in administrations to a more
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Nixon like administration, if it's a Republican or a Democrat,
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that one of the first things they'll do is to
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put this back in place.
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Great question.
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It is something I've thought a lot about, in particular,
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when we have another Democratic administration, what will they do
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with OCCP. I definitely think they'll do something. I don't
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think they'll just let the current satus quo lie. But
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I kind of do think that the politics of race
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and refertive action have changed in fundamental ways. So again
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I'm speculating here and that we won't see just to
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return to, you know, the President Biden OCCP Again, partly
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that's because I think the politics are just different. I
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do think there's a growing sense among the Democratic side
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that kind of the state of their party during the
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pandemic was not great and was not well received by
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the broader public. There's also just administrative challenge that it's
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a lot easier to destroy an agency than to build one,
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and so President Trump has relatively quickly taken out you know,
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upwards are ninety percent of that agency's enforcement power, and
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it's harder to build that back, though not impossible, and
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I just don't know if the Democratic Party will want
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to take that on right now, but they certainly could.
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So that's a non answer, Linda.
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Well, but there is of course another alternative, and that
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is that legislation could be passed that would implement some
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of these prohibitions. Certainly, while Republicans control both houses of Congress,
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that happened. But again, my own experience, my long history
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in this issue, is that members of Congress are loathed
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to do that. So do you think there's any possibility
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that some of these changes, I mean, just you know,
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making it clear that that Title seven prohibits the use
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of race in making determinations about hiring, firing, etc. Regardless
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of what the purpose is. That may be something clarifying there.
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I could see that, I could see legislation that just
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adds clarity light on the finer points at Title seven,
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which is a pretty The language of Title seven is
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very basic, you shall not discriminate on these basses. And
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so much of what my world, this practice of law
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looks at is what does that mean in this context?
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In this context, can you do this this? And you know,
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I could imagine that we'll get some of those gaps
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built in but it does seem, I share your sketches
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of the Congress really would want to step in to
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this kind of inherently controversial space.
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I mentioned earlier that the regular administration did consider changing
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eleven two four six basically to make sure that it
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didn't just say that you couldn't use race to discriminate,
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but also it couldn't be used to give preference to
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any particular group. And that was really just a very
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small amendment into the language. But it was debated Bill
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Block with Secretary of Labor. He opposed the idea. We
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had a committee that was put together. I mentioned George Schultz.
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He actually at the time was Secretary of State, but
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he turned up to one of the meetings to put
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in his two cents. And Elizabeth Dole was Secretary of
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Transportation and she was also very skeptical. Another person who
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was very skeptical may very surprise our listeners, was one
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Clarence Thomas, who was the head of the EOC. He
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didn't want to mess with eleven two four six at
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the time. Will be very interesting to see if this
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is challenged whether or not his views they certainly seem
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to have changed on the question of affirmative action. But
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let me play devil's advocate here for a minute. The
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civil rights community and many on the democratic side of
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the isle have basically said that what Trump is trying
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to do is to make employers, universities, all sorts of
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benefits in our society basically skewed towards helping whites, and
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that there's no longer any interest in helping minorities. And
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you know, one could make an argument about whether or
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not today's black and latinos are in the same position
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as they were back in nineteen sixty five. I think
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there's an argument that there was a lot more discrimination
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in those days. But what is your response to that.
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I don't think it's a fair criticism, but I do
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respect where it's coming from. I take the Trump administration
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at its word what they're trying to do. And you know, again,
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I worked with some of these people when I was
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serving during the first term, and I think they are
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trying to what they're motivated by is a true non
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discrimination regime, and they do believe, and I share this belief,
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maybe not as strenuously, they do believe that OFCCP, however
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well intentioned, it was executive Order one, one, two, four six,
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it did have the effect, through the regime and the
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enforcement that it created, of in fact causing discrimination in
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the form of preferences, even though, to give the agency
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all it's due, it had regulations that explicitly forbid quotas
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and preferences and set asides. Nonetheless, I do think because
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in many cases, if you had run your statistical analysis
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of your hiring and your application and it didn't look
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the way it was supposed to, the quickest route to
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get there was to just kind of subtly discriminate to
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make the numbers look better. Again, I don't want to
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accuse anyonebody of doing that, I do think it happened.
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So I think the Trump administration is trying to stop that.
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You know as well as me that we're coming out
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of a history where we had very intense ferments during
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the pandemic on the DEI front, and I do think
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there was a lot of push we're kind of discrimination,
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and now we have starting in twenty twenty three, we
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had this very significant Supreme Court case that said, no,
439
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Harvard University, any of higher ed you can give preferences,
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even for the best reasons possible. It is considered a
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violation of our civil rights laws to give racial preferences.
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And now that's kind of flowing with the Trump administration
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second term, that's flowing throughout.
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The rest of the government.
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It is the case, if what I'm saying is correct,
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what the Trump administration is saying is correct, that there
447
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has been discrimination against often white people, often male, so
448
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not necessarily, but discrimination in favor of minorities in women.
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If you undo that, because this is a zero sum
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game in many instances, it will have the effect in
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cases of benefiting white people. So that part is correct.
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I don't think that's the intent. I think the breadth
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of Trump's political collision shows that most of his voters
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don't see it that way either. But again I see
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where that critique is coming from.
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I just hosted for my Center for Equal Opportunity a
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talk by Jason Riley, who is a Wall Street Journal columnist,
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and he also happens to sit on my board. He's
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got a very important new book out called The Affirmative
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Action Myth, and what that book does is talk about
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what was happening to blacks in particular during the pre
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Affirmative Action date. And he makes a very strong case
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that the change the rapidity with which blacks were closing
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the gap in education, in employment, in income was actually
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the pace was actually much quicker during the pre affirmative
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action period. And we don't have time to go into
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all of his reasons, but the same kind of you know,
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the sky is falling comments about the end of affirmative
469
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action were made in California when California banned racial preferences
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in college admissions throughout the state system. So is it
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possible that you'll see the kind of things that happened
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during that California experience, which is, you know, fewer blacks
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may have been admitted to University of California, Berkeley, they
474
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may have ended up going to Santa Barbara, Riverside or elsewhere,
475
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but they actually thrived there and graduated. Is that possible
476
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that you could see something similar in corporate America with
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the rescinding of disorder.
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I absolutely think it's possible.
479
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I don't think the analogy with higher ED is one
480
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to one, but yeah, I absolutely think that kind of
481
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dynamic is possible. And Linda, you know, I just want
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to emphasize what you I think at least hated at
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earlier as one response to the critics of what the
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administration is doing, and that is just it.
485
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Really is impressive.
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It's important to see how much different American society is
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now that it was in nineteen sixty five.
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Nineteen sixty five.
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Was right in the middle of the Civil Rights Act, sorry,
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right in the middle of the Civil Rights movement, a
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movement that I identify was strongly. But back then the
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country was very much white and black. That really was
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the racial dynamic of our country, and it was very
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much connected to you know, slavery being out on one
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hundred years ago, and still there was the Jurrey segregation
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and lots of the country.
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Our country is so.
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Much more diverse now than it was in nineteen sixty five.
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African Americans are not even the largest minority anymore. That's
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now Hispanic Americans. We're just so much more multi ethnic
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and multicultural. Deb In some sense, I think that all
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of CCP was an agency that was built for a
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different time and it just doesn't really make as much
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sense the years after originally one point two for six
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was past. I just wanted to is that the difference
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of sixty years in our country.
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I think that's a very uh good point and one
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that I think is an excellent endpoint for our discussion. Brett,
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I want to thank you very much for giving us
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that history and also describing what you experience in the
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Office of Federal Contract Compliance Programs, and also encourage any
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listeners who are more interested to check out possibly submitting
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comments during this open comment period. Thank you so much.
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Thank you, Linda.
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On behalf of the Federalist Society. I want to thank
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our speakers for sharing their time and expertise with us
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today into our audience. Thank you for tuning in.
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On behalf of the Federal Society's Regulatory Transparency Project. Thanks
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00:31:42.720 --> 00:31:45.759
for tuning in to the Fourth Branch podcast to catch
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00:31:45.759 --> 00:31:48.240
every new episode when it's released. You can subscribe on
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Apple Podcasts, Google Play, and Speaker For leys from our TP,
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Please visit our website at Regproject dot org. That's our
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egproject dot org.
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This has been a FED SoC audio production.
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YAHM
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Welcome to the Regulatory Transparency Project's Fourth Branch podcast series.
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All expressions of opinion are those of the.
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Speaker Tory Transparency Project's Fourth Branch podcast. My name is
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Matthew Sautel, and I'm an assistant director of Practice Groups
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of the Federalist Society. We are honored to host today's
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discussion on the regulatory changes proposed by the UFCCP on
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July first, twenty twenty five, and is my pleasure to
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introduce our moderator, Linda Chavez, who served in the Reagan
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administration as the Director of the Civil Rights Commission and
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the White House Director of Public Liaison, and now as
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the chairman of the Center pre Equal Opportunity. Learn more
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about today's speakers, I invote you to view their full
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biographies at RAG project dot org. Thank you for being
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with us today, Linda and Flora's yours.
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Thank you very much, Matt, and it's a pleasure to
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be here in it a pleasure to talk with our guest,
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who is Brett Sweringen. He's a senior counsel in Miller
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Johnson's Employment and Labor practice and a natives of Southwest Michigan.
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But he graduated from Law School at the University of Chicago.
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But more to the point of today's discussion, he was
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also at the Office of Federal Contract Compliance Programs during
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the first Trump administration, and he also sits on the
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Civil Rights Commission's Advisory State Advisory Committee for Michigan. So welcome, Brett.
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It's a pleasure to be here. London, thank you well.
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I have a long history with Executive Order eleven two
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four six, and we may get into it a little
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bit later in the program, but I thought it would
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be helpful for those who are listening to us who
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may not have much of a history on this executive
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order understand how it came about, first promulgated in one
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form by JFK in nineteen sixty one, and then changed
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and made actually more effective from the advocates point of
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view by London Johnson, and that was when it became
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Executive Order eleven two four six. Can you talk a
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bit about the original order, how it led the way
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to requiring all federal contractors to implement hiring goals and
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timetables for black, Hispanics and certain other underrepresented minorities.
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Yeah, I'd be happy to, Linda.
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You know, I like to zoom out of it and
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view Executive Order one or two four six as just
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part of this long story of our nation's history and
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has struggle against our original sin of slavery. And you know,
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after one hundred years post some accipation, we still had
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widespread segregation.
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Against African Americans. And that was where we were when
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the civil rights who when really became moving in the
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fifties and sixties.
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And a piece of that civil rights movement that the
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government sees on was the books that the federal government
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has with federal contractors who, by nature of taking money
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from the federal government, the government has the ability to
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put certain strings on that money.
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And I think the first time the federal.
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Government used those strings for civil rights, actually I believe
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that happened during World War Two, so it goes back
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to FDR. But then, as you said, I think JFK
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was the first to use the phrase affirm of action
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in a nineteen sixty one executive order. I think we
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all know about the nineteen sixty four Civil Rights Act,
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which was obviously a monumental legislative achievement by President Johnson,
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And then a year after that there was the decision
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made by the Johnson administration to kind of take the
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next step forward in terms of the federal contractor requirements.
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And that's one what we now know is Executive one
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one two pour six was signed by President Johnson. Originally,
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like the I shouldn't say that, originally, the executive order
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only dealt with race, race, national origin, color. Not too
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long after that sex was added, I think it was
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nineteen sixty seven at the Johnson administration amended one one
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two four six to.
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Add sex discrimination.
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I don't believe the agency was known as LFCCP at
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that time.
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That that name came I think in.
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The seventies, but OLFCCP quickly became what I would argue
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was the most powerful civil rights enforcement agency in the
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federal government. And that's because, perhaps a surprise to some
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of our listeners, almost a quarter maybe even I think
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twenty five percent of Americans work for companies that have
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federal contracts. So that's a huge piece of the workforce
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that OLFCCP had jurisdiction over. And as their enforcement activities involved,
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especially I think this guy really going in the late
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seven these which which honestly was in tandem with the
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frustration that the people in the civil.
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Rights movement, both on the outside on the.
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Inside the government, we're having seeing frankly less progress on
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they were hoping to, Especially after all the work that
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happened in the sixties, there started to be the requirements
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to enact affrontive action plans by federal contractors that.
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Were very detailed and had real teeth.
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And in connection with those affrontive action plans, there were
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you were regularly audited by the federal government by o OFCCP,
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and those audits were quite extensive. And then if the
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agency found things that they thought were not right, that
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they viewed as either actual discrimination or just failing to
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do affrontive action the way that they thought you should
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be doing, there were real consequences and being a federal contractor,
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you know, the biggest one is that you will lose
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your federal contract. And for some contractors you can think of,
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like the defense industry, that is a massive family.
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I mean, that would be the end of a business.
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So there is a ton of leverage.
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There was a ton of leverage that this agency held,
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and that's why I would say it was the most
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potent civil rights enforcement agency in the federal government.
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Let me just interrupt your history and it's one of
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the advantages of being old Pratt is that I was
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actually around during that period and remember very distinctly the
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Nixon administration's role. Interestingly, at the time, I was a
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registered Democrat. I actually worked on the House Judiciary Committee
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for a period and during that during that time in
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the nineteen seventies, when Richard Nixon came to office, he
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had a labor secretary, Secretary Schultz, George Schultz, who later
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became quite famous as Secretary of State under President Reagan,
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and they enacted something called the Philadelphia Plant. Didn't like
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that very much because it hit labor unions and quite
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going beyond the idea of goals. These were actual quotas
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that were imposed, and it's very interesting to see the
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politics of affirmative action and how those have changed. I
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always tell people when they think, well, you know you're
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a conservative but used to be a Democrat, Well, I
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haven't changed my views on any of these issues in
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the interim period, and was very much opposed when the
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Nixon administration came down with those quotas for labor unions.
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And fast forward to two thousand and one, when I
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was nominated to be Secretary of labor under George W. Bush.
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I got a call from George Schultz, of course, who
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was out of the government. He and I had locked
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horns a few times on this issue, which I'll talk
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about a little bit later, and he just wanted to
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assure me that he had no choice, absolutely had to
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do this because the unions were absolutely racist, and it
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was the only way you could get them to hire
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into their apprenticeship programs Blacks, Hispanics and others. So just
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a little bit of minor history, and also to indicate
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that the politics of this issue has changed a great
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deal over time. I would like to talk now and move,
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if you will, to talking about the new executive Order
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that was one of the first that was handed down
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by President Trump when he came into office in January.
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It's called Executive Order one four seven three, and it
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basically got rid of everything in eleven two four six.
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Would you again just describe briefly what it's in. It's
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actually more than just rescinding eleven two four six. It
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went quite beyond that in terms of its scope. You
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could give us a little thumbnail sketch of the new
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executive Order.
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Yeah, and you speak of the politics changing and this
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is this is a very crystallized example. This was, I say,
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I think the second day of Trump's second term he
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issued what's known as one four one seventy three and
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in one fell swoop.
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And this wasn't even the main main subject of the EO.
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He just revoked Executive Order one one two six, which,
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of course, as an executive order, can't be revoked by
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by huge administrations. And he took a directly antagonistic view
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towards what LBJ had done sixty years ago, finding that
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ofccp's enforcement regime under one one two four six was
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leading to, in his words, dangerous to meaning and immoral
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race and sex based preferences. And he throughout what he
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viewed as the agency's goals of promoting diversity and affirtive
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action and workforce balancing. Those are from the text of
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the executive order in favor of three different things, individual, initiative, excellence,
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and hardware. And given that this was the a one
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one two four six is the guts of OCCP.
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It does two.
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Other things that we will discuss later, but by far
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the core of os CCP has been combating race and
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sex discrimination, and unique among federal enforcementtencies promoting affirmative action.
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Uh And given that that.
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All relied on the authority of EO one one two
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four six President Trump, and one four one.
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Seventy three just was just gutted that authority.
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One other thing I want to mention, because it is
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very significant, not directly related, is that executive order also
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made clear that federal contractors could face false claims act
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liability by virtue of being a federal contractor if they
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were found to be discriminating. And this was part of
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the anti dei focus of that order. But that is
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a big new thing in the federal contractor space.
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Just to go in a little bit more into what
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the new Executs Kit of Order does in terms of
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not just basically eliminating eleven two four six, but in
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terms of the Office of Federal contract Compliance programs. First
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of all, executive orders, you know, they are pieces of paper,
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They do have some authority, but particularly when you're dealing
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with a federal agency, there have to be some implementing regulations.
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And OFCCP has now put out for public comment a
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proposed regulation. It's one of the reasons we're talking about
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it on the Regulatory Transparency Project podcast if you could
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go into that a little bit. There's very little time
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left to be able to reply, but there may be
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some listeners who might think of doing so. But if
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you could go into that a little bit, please, Yeah.
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So, seconive order is a piece of paper OFCCP has
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been doing this work for sixty years, and there's a
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a large regulatory regime that has been built up via
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better regulations that spell out the requirements for federal contractors.
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There's two other significant authorities that OCCPN forces. One is
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the Veterans Vietnam Era Veterans Readjustment Assistance Act that is
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non discrimination and affirmative action for veterans. And then it
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also enforces Section five h three of the Rehabilitation Act
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that is non discrimination and affirmative action for individuals with disabilities.
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So those two authorities are both statutory. They have not
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been touched by President Trump's new Executive Order E one
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one two four.
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Six On their hand, is no more so.
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What the administration needed to do was get the it's
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regulations aligned with.
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The new position taken by the Trump administration.
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So earlier in July they issued three separate proposed regulations,
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one basically just to get rid of all the EO
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one one two for six REGs because they don't have
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any legal authority at this point. And then second and
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to adjust the VEBRA REGs and the Section five OHO
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three REGs to account for the fact that they now
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are independent and they can't rely on the EO one
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one two for six riggs, which again now don't exist.
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There are two proposed changes. Is now a good time
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to talk about that?
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Yes, absolutely, let's talk about it. But also tell our
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listeners that the comment period public comment period, unless it
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is extended, expire September second, So we've got very little
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time left.
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Yes, September second is the deadline, and I don't expect
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an extension, though only only the Trump administration knows for sure.
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It just seems like they're they're kind of in a hurry.
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That's my take on things. So for the most part,
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these proposed rules are not substantive. They're just trying to
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again align the regulations with the Trump administration petition. But
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there's two exceptions that are substantive proposed changes, and that
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both refers.
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To the individual's disabilities.
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One of the requirements that currently applies to federal contractors
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in terms of employing individuals with disabilities is that you
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are required to request your employees to self identify the
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disability status for purposes of your compliance with the affrontive.
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Action and non discrimination rules for individuals with disabilities.
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The new rule proposes to get rid of that self
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identification requirement. And the reason they argue is they believe
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that asking employees to self identify is a violation of
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the Americans for Disabilities Act.
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So that's one proposed change that's substantive. The other proposed.
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Change is to withdraw the seven percent utilization goal for
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individuals with disabilities.
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That's again that's currently the rule.
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If you are a federal contractor, the agency says you
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must aim to at least employ seven percent of your
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workforce people with disabilities. That would be gone if this
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rule goes into effect. That also means that the affrontive
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action plan that a contractor creates for individual disabilities would
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not have any numerical or statistical analysis trying to say
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whether or not they're hitting that seven percent target. So
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that's the two substance changes that are part of the proposals.
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Everything else is just administrative.
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Brett. I'd like to talk about the practical consequences of
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what eleven two four six and the OFCCP office have
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meant for private employers. I sat for twenty five years
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on corporate boards, including two a very large company, each
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of which employed more than one hundred thousand workers. So
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definitely came under AFCCP, and you talked about it as
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the most important office in terms of civil rights enforcement,
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and I think that's largely because it was proactive. You know,
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the EEOC, you have to have somebody who basically brings
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a complaint to the EC, they have to exhaust their remedies,
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and then the EOC may or may not take it up.
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It's very different with OFCCP. Employers are, if they are
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federal contractors, required to have these plans in place, and
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visits by OFCCP to gather data to ensure that the
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numbers that the company sends into Washington are in fact accurate,
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and the kinds of remedial actions that will be taken
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if those numbers don't satisfy OFCCP are considered quite onerous.
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I mean, nobody wants to hear if you're in corporate
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America from the OFCCP. So I'm interested if you have
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a sense. I'm no longer on those boards. I've retired,
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So I don't know how it's being viewed within corporate
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America except sort of broadly and generally. Do you have
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a sense of that, is this something that's being welcomed
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in certain circles or not?
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From where I sit, the dominant sense I get from
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clients is confusion and maybe some fear. There probably could
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be relief there, but that's just not what is coming
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to me to be where I sit in technical calls.
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But I mean, you're completely right, Linda. And when I
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said that it was probably the most important enforcement agency, yes,
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it's because it was an active one, like every year
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you had to redo your front of action plan.
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Matt. You have talked about OFCCP as being one of
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the most important enforcement agencies, and we talked about why
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the EEOC has to wait for something to come to
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them by way of complaint, but talk about that burden
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on employers and what happens when they have to put
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together an affirmative action plan.
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Yeah, Linda, Oh of CCP is very unique in this regard,
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unlike the other civil rights and force of agencies. If
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you are a federal contractor, whether or not you've done
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anything wrong, you have a very.
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Significant compliance burden.
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As I've mentioned before, there are three different authorities that
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OOFCCP enforces race and sex under one one two four, six,
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veterans under VEVERRA, and individuals divisibilities under Section five O three.
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Each of those three authorities requires federal contractors to create,
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on an annual basis a affirmative action plan, and that
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is a formal document, many many pages long in most cases,
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that in very detailed fashion, documents the steps that that
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contractor is taking in order to comply with its non
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discrimination and affrontive action obligations and also document the effects
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of those steps and what they're seeing in their numbers.
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There's a lot of record keeping and documentation requirements that
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comes along with the OCCP regulate. And then again, if
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you see that it looks like there may be discrimination occurring,
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you need to document to the department's satisfaction that.
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You're taking remedial remedial action.
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So that's just standard operating procedure if you're a federal
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contractor to maintain on an annual basis three AAPS. In
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addition to that, there's the enforcement side. If you are
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a federal contractor, you are regularly scheduled. Again I'm talking
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about the world prior to Trump Trump's second administration. Your
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regularly scheduled for compliance reviews. And for a compliance review
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that means OFCCP comes in and will take a very
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detailed book at each of your aaps and see if
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they think you're doing everything correct. That goes from being
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very technical are you are you kind of dotting your
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eyes and crossing your t's to a very thorough evaluation
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of your application and hiring data and using ctiscal tools
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to determine based on o ofccp's analysis, if they think
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there is likely discrimination occurring, and if they do, then
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you move into a more aggressive enforcement posture which requires
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more data, more documentation, back and forth, some kinds of
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attempt at conciliation, and then if that doesn't work, this
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can spill in a litigation. But all this can take months,
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it can take years, and this was just a very
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big compliance burden on a federal contractor. Again, before President
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Trump revoked Executive Order one D four six, we.
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Did talk about the fact that executive orders can be
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issued and rescinded when administrations change. Do you anticipate that
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if there is a change in administrations to a more
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Nixon like administration, if it's a Republican or a Democrat,
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that one of the first things they'll do is to
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put this back in place.
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Great question.
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It is something I've thought a lot about, in particular,
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when we have another Democratic administration, what will they do
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with OCCP. I definitely think they'll do something. I don't
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think they'll just let the current satus quo lie. But
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I kind of do think that the politics of race
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and refertive action have changed in fundamental ways. So again
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I'm speculating here and that we won't see just to
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return to, you know, the President Biden OCCP Again, partly
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that's because I think the politics are just different. I
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do think there's a growing sense among the Democratic side
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that kind of the state of their party during the
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pandemic was not great and was not well received by
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the broader public. There's also just administrative challenge that it's
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a lot easier to destroy an agency than to build one,
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and so President Trump has relatively quickly taken out you know,
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upwards are ninety percent of that agency's enforcement power, and
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it's harder to build that back, though not impossible, and
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I just don't know if the Democratic Party will want
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to take that on right now, but they certainly could.
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So that's a non answer, Linda.
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Well, but there is of course another alternative, and that
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is that legislation could be passed that would implement some
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of these prohibitions. Certainly, while Republicans control both houses of Congress,
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that happened. But again, my own experience, my long history
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in this issue, is that members of Congress are loathed
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to do that. So do you think there's any possibility
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that some of these changes, I mean, just you know,
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making it clear that that Title seven prohibits the use
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of race in making determinations about hiring, firing, etc. Regardless
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of what the purpose is. That may be something clarifying there.
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I could see that, I could see legislation that just
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adds clarity light on the finer points at Title seven,
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which is a pretty The language of Title seven is
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very basic, you shall not discriminate on these basses. And
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so much of what my world, this practice of law
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looks at is what does that mean in this context?
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In this context, can you do this this? And you know,
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I could imagine that we'll get some of those gaps
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built in but it does seem, I share your sketches
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of the Congress really would want to step in to
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this kind of inherently controversial space.
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I mentioned earlier that the regular administration did consider changing
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eleven two four six basically to make sure that it
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didn't just say that you couldn't use race to discriminate,
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but also it couldn't be used to give preference to
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any particular group. And that was really just a very
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small amendment into the language. But it was debated Bill
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Block with Secretary of Labor. He opposed the idea. We
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had a committee that was put together. I mentioned George Schultz.
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He actually at the time was Secretary of State, but
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he turned up to one of the meetings to put
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in his two cents. And Elizabeth Dole was Secretary of
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Transportation and she was also very skeptical. Another person who
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was very skeptical may very surprise our listeners, was one
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Clarence Thomas, who was the head of the EOC. He
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didn't want to mess with eleven two four six at
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the time. Will be very interesting to see if this
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is challenged whether or not his views they certainly seem
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to have changed on the question of affirmative action. But
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let me play devil's advocate here for a minute. The
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civil rights community and many on the democratic side of
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the isle have basically said that what Trump is trying
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to do is to make employers, universities, all sorts of
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benefits in our society basically skewed towards helping whites, and
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that there's no longer any interest in helping minorities. And
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you know, one could make an argument about whether or
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not today's black and latinos are in the same position
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as they were back in nineteen sixty five. I think
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there's an argument that there was a lot more discrimination
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in those days. But what is your response to that.
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I don't think it's a fair criticism, but I do
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respect where it's coming from. I take the Trump administration
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at its word what they're trying to do. And you know, again,
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I worked with some of these people when I was
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serving during the first term, and I think they are
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trying to what they're motivated by is a true non
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discrimination regime, and they do believe, and I share this belief,
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maybe not as strenuously, they do believe that OFCCP, however
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well intentioned, it was executive Order one, one, two, four six,
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it did have the effect, through the regime and the
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enforcement that it created, of in fact causing discrimination in
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the form of preferences, even though, to give the agency
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all it's due, it had regulations that explicitly forbid quotas
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and preferences and set asides. Nonetheless, I do think because
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in many cases, if you had run your statistical analysis
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of your hiring and your application and it didn't look
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the way it was supposed to, the quickest route to
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get there was to just kind of subtly discriminate to
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make the numbers look better. Again, I don't want to
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accuse anyonebody of doing that, I do think it happened.
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So I think the Trump administration is trying to stop that.
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You know as well as me that we're coming out
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of a history where we had very intense ferments during
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the pandemic on the DEI front, and I do think
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there was a lot of push we're kind of discrimination,
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and now we have starting in twenty twenty three, we
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had this very significant Supreme Court case that said, no,
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Harvard University, any of higher ed you can give preferences,
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even for the best reasons possible. It is considered a
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violation of our civil rights laws to give racial preferences.
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And now that's kind of flowing with the Trump administration
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second term, that's flowing throughout.
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The rest of the government.
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It is the case, if what I'm saying is correct,
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what the Trump administration is saying is correct, that there
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has been discrimination against often white people, often male, so
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not necessarily, but discrimination in favor of minorities in women.
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If you undo that, because this is a zero sum
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game in many instances, it will have the effect in
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cases of benefiting white people. So that part is correct.
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I don't think that's the intent. I think the breadth
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of Trump's political collision shows that most of his voters
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don't see it that way either. But again I see
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where that critique is coming from.
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I just hosted for my Center for Equal Opportunity a
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talk by Jason Riley, who is a Wall Street Journal columnist,
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and he also happens to sit on my board. He's
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got a very important new book out called The Affirmative
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Action Myth, and what that book does is talk about
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what was happening to blacks in particular during the pre
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Affirmative Action date. And he makes a very strong case
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that the change the rapidity with which blacks were closing
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the gap in education, in employment, in income was actually
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the pace was actually much quicker during the pre affirmative
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action period. And we don't have time to go into
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all of his reasons, but the same kind of you know,
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the sky is falling comments about the end of affirmative
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action were made in California when California banned racial preferences
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in college admissions throughout the state system. So is it
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possible that you'll see the kind of things that happened
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during that California experience, which is, you know, fewer blacks
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may have been admitted to University of California, Berkeley, they
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may have ended up going to Santa Barbara, Riverside or elsewhere,
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but they actually thrived there and graduated. Is that possible
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that you could see something similar in corporate America with
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the rescinding of disorder.
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I absolutely think it's possible.
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I don't think the analogy with higher ED is one
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to one, but yeah, I absolutely think that kind of
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dynamic is possible. And Linda, you know, I just want
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to emphasize what you I think at least hated at
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earlier as one response to the critics of what the
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administration is doing, and that is just it.
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Really is impressive.
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It's important to see how much different American society is
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now that it was in nineteen sixty five.
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Nineteen sixty five.
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Was right in the middle of the Civil Rights Act, sorry,
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right in the middle of the Civil Rights movement, a
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movement that I identify was strongly. But back then the
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country was very much white and black. That really was
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the racial dynamic of our country, and it was very
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much connected to you know, slavery being out on one
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hundred years ago, and still there was the Jurrey segregation
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and lots of the country.
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Our country is so.
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Much more diverse now than it was in nineteen sixty five.
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African Americans are not even the largest minority anymore. That's
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now Hispanic Americans. We're just so much more multi ethnic
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and multicultural. Deb In some sense, I think that all
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of CCP was an agency that was built for a
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different time and it just doesn't really make as much
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sense the years after originally one point two for six
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was past. I just wanted to is that the difference
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of sixty years in our country.
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I think that's a very uh good point and one
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that I think is an excellent endpoint for our discussion. Brett,
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I want to thank you very much for giving us
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that history and also describing what you experience in the
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Office of Federal Contract Compliance Programs, and also encourage any
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listeners who are more interested to check out possibly submitting
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comments during this open comment period. Thank you so much.
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Thank you, Linda.
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On behalf of the Federalist Society. I want to thank
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our speakers for sharing their time and expertise with us
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today into our audience. Thank you for tuning in.
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00:31:39.400 --> 00:31:42.720
On behalf of the Federal Society's Regulatory Transparency Project. Thanks
519
00:31:42.720 --> 00:31:45.759
for tuning in to the Fourth Branch podcast to catch
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00:31:45.759 --> 00:31:48.240
every new episode when it's released. You can subscribe on
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Apple Podcasts, Google Play, and Speaker For leys from our TP,
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00:31:53.039 --> 00:31:56.440
Please visit our website at Regproject dot org. That's our
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egproject dot org.
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This has been a FED SoC audio production.
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YAHM
