Enforcement of Employment Law: What the Next Four Years Will Bring
David S. Fortney, Judith E. Kramer, and Burton J. Fishman
FortneyScott, LLC, Washington, DC1
(Editor’s Note: Here is a quick introduction by Eric Dunleavy from On the Legal Front)
November has come and gone, and President Obama has been reelected. Art Gutman and I thought it would be interesting to ask some well-respected lawyers from Washington DC if they would be willing to speculate on where they see EEO enforcement going during President Obama’s second term. David Fortney and his colleagues at FortneyScott accepted the invitation and prepared an insightful response. We think this is worthy of its own space in TIP and hope that you enjoy it. With that I will turn it over to David and his team. Fasten your seatbelts.
1 FortneyScott is a Washington, DC-based law firm counseling and advising clients on the full spectrum of workplace-related matters. FortneyScott represents clients in agency enforcement matters and rulemakings, administrative hearing, and litigation matters, including mediation and arbitration.
As President Obama made clear in his Second Inaugural Address, issues of “equality” will play a significant role in the domestic policy of his second Administration. The principle vehicles to implement his vision of equality will be the Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Practices (OFCCP). In what follows, we will discuss both the steps these agencies have announced they will take and our beliefs about where federal enforcement will be moving.
The common theme that unites these two agencies is broader, more aggressive enforcement. We believe this will come not only in the form of intensified activity under existing laws and regulations, but also by means of an expansion of the means by which enforcement can occur, whether it is new guidance, regulations, interpretations, and/or compensation guidelines.
The EEOC has already announced its Strategic Enforcement Plan (SEP). In essence, the SEP outlines the agency’s enforcement objectives. The SEP identifies the six key areas on which the EEOC intends to focus:
- Eliminating barriers in recruitment and hiring;
- Protecting immigrant, migrant, and other vulnerable workers;
- Addressing emerging and developing employment discrimination issues;
- Enforcing equal pay laws;
- Preserving access to the legal system; and
- Preventing harassment through systemic enforcement and targeted outreach.
The addition of equal pay as a priority enforcement area is one of the most significant elements of the SEP. This also signals that an Administration effort on pay equity will likely be launched in Congress.
Although there have been similar plans in the past, this SEP has a new tone of seriousness in that it includes measurable steps to implement its goals. The required development of district complement plans by March 29, 2013, with the required inclusion of how each district will implement the SEP priorities, identify local enforcement priorities, including areas for systemic investigation and litigation, and identify strategies for collaborative legal and enforcement efforts, all indicate that the EEOC wants to bring a heightened focus to its often diffuse efforts.
In addition, the SEP seeks to overcome the traditional independence of the regional and district offices by providing for oversight and coordination by the Commissioners to ensure there is cohesion among the districts and that the individual plans effectively complement national priorities. District complement plans will take effect June 1, 2013.
It remains to be seen whether this SEP succeeds where its predecessors have failed. The regions and districts fiercely protect their independence. Further, the breadth and number of goals in the SEP seem certain to dilute the EEOC’s efforts. It is more likely that the EEOC, as in the past, will narrow its focus to areas it believes are “emerging” and, frankly, politically advantageous, systemic or not.
With that in mind, it seems certain that pay equity for women and anti-discrimination efforts for undocumented workers and lesbian, gay, bisexual, and transgendered individuals will be in the forefront of the agency’s enforcement plans. Further, because the EEOC is an independent agency with a history of acting on the basis of “guidances” rather than formal regulations, it is likely that these pronouncements will be issued and enforcement in these areas will follow.
It is easy to predict future enforcement by the OFCCP. One need only quote Samuel Gompers, who, when asked what labor wanted, simply said: “More!” This DOL wants the same.
It is not likely that members of SIOP need much introduction to the OFCCP’s proposed regulations on the hiring of veterans and individuals with disabilities. Both of these regulations, scheduled for publication in April 2013, will bring about “a sea change” in affirmative action. They will also require a profound retooling of the recruiting and hiring practices of every federal contractor and of the methodologies for demonstrating compliance.
Of perhaps greater interest is that OFCCP seems intent to remake the basic model of affirmative action and general compliance under the Executive Order without regard for the remarkable success of past practices and without regard for the legal basis of their new endeavors.
With respect to the veterans’ regulations, the absence of reliable data as to the numbers of available veterans in relevant applicant pools and the difficulties in measuring compliance in such a situation is but one problem area federal contractors and their statistical counselors will face. How existing law can validate a naked preference in the private sector and how sex discrimination can be avoided given the preponderance of men among the pool of veterans are other issues raised by the regulations.
All of these concerns, especially about measurable availability—and more—are raised by “the 503 regulations.” The insistence by OFCCP that federal contractors have to reach a 7% hiring “goal” for people with disabilities in all job groups in all localities, ask disabled applicants to self-identify as disabled at the pre-offer stage, and meet additional posthire surveys of disabled employees unrelated to affirmative action objectives all raise numerous questions that will surely be challenged in the courts.
We will soon learn whether the final regulations retain these unprecedented changes to affirmative action as it has operated—and been approved by the courts—for decades. Our view is that the OFCCP will pursue this course. On too many occasions, OFCCP has stated that success will be measured by “who is hired” for there to be a retreat. Whether the courts will approve the agency’s position remains to be determined. The only certainty about OFCCP enforcement is “more!”