Bad Old Regulations | Center for Equal Opportunity

The Center for Equal Opportunity last week submitted a formal comment on a notice of proposed rulemaking by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The matter involves “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.”

Set out below is our actual comment, which is quite brief. It incorporates, however, the analysis from a law review article that I wrote and specific edits to the existing regulations. Both the law review article and the edits are posted on our website, and you can click on the links to them. As a bonus, I’m including in this email a similar analysis that I posted on National Review Online during the Obama administration. Enjoy — and here’s hoping that the Trump administration makes the suggested changes.

Last week’s comment:

It’s good that there is concern to ensure that OFCCP’s regulations penalize all but only actual discrimination.

But there is a fundamental problem with the current regulations that must be addressed in this context if there is to be meaningful improvement. The current OFCCP regulations implementing Executive Order 11246 unfortunately pressure contractors with the federal government into making employment decisions based on race, ethnicity, and sex, which is bad policy and unlawful, indeed unconstitutional.

Accordingly, for the reasons given in Roger Clegg, “Unfinished Business: The Bush Administration and Racial Preferences,” 32 Harv. J.L. & Pub. Pol’y 971, 988-991 (2009) (Part III.B., “The Bush Administration, Executive Order 11246’s Regulations, and the Law”) [the article is available at this link: http://ceousa.org/attachments/article/1116/George%20W%20Bush%20Retrospective%202009.pdf ], the Department of Labor should amend its implementing regulations for Executive Order 11246 along the lines discussed in that article and further detailed in the marked-up regulations posted on the Center for Equal Opportunity’s website [link: https://ceousa.org/about-ceo/docs/1348-edits-on-the-eo-11-246-regulations ].
National Review Online column:

Unconstitutional ‘Affirmative Action’ Regulations under Executive Order 11,246

… [F]ederal regulations explicitly pressure [private employers] to consider race, ethnicity, and sex in making hiring and promotion decisions.

Those are the regulations that implement Executive Order 11,246, through which the Department of Labor requires companies that contract to do work for the federal government to have “affirmative action” plans that include “goals and timetables” when the “incumbent” percentage of “minorities or women” is less than “their availability percentage.”

It is wrong as a matter of law and policy for DOL’s Office of Federal Contracting Compliance Programs to require covered federal contractors to set goals and timetables whenever they have a certain degree of “underrepresentation” among minorities and women. The regulations’ present approach is at odds with the current case law. It is quite clear that this use of classifications based on race, ethnicity, and sex will trigger judicial strict scrutiny; that mere statistical disparities are not sufficient to justify the use of racial classifications; and that, even if they were, there is no justification for goals and timetables to be triggered when women and minorities are “underrepresented” but not when men and non-minorities are.

In Adarand Constructors, Inc. v. Peña, the Supreme Court ruled in 1995 that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” The U.S. Court of Appeals for the D.C. Circuit elaborated three years later: “We do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals. . . . Strict scrutiny applies.”

The courts have allowed the use of racial considerations in employment when they are needed to remedy some entity’s past discrimination, but there is no plausible remedial basis for the government’s approach here.

The federal government, after all, has no recent history of systemic discrimination and has banned discrimination by its contractors since at least 1961, and the private sector as a whole has been prohibited from engaging in such discrimination since the passage of the Civil Rights Act of 1964. And even if there were a remedial basis, the across‐the‐board approach taken by the regulations is not narrowly tailored. Statistical disparities can result from reasons that are not related to discrimination, and they can almost always be addressed through race‐ and gender-neutral means if they are.

The regulations are in fact also at odds with Title VII of the 1964 Civil Rights Act. Under this statute, too, before prohibited classifications can be used a remedial predicate must be met, showing a “manifest imbalance” in a “traditionally segregated” position, as the Supreme Court ruled in its Weber and Johnson decisions years ago. One hopes that 49 years after the 1964 Act made other employment discrimination illegal there is not much “traditional segregation” left.

The Court’s 2009 decision in Ricci v. DeStefano — the New Haven firefighters case — further suggests that an employer’s track record of discrimination against, say, blacks must be so bad and so recent that if it did not consider race, there is a “strong basis in evidence” that it could be successfully sued for that failure. That’s a very high bar. If, per Ricci, an employer cannot legally consider race unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to consider race when it is not motivated by fear of a Title VII lawsuit at all?

What’s more, Weber and Johnson also held that considerations of race, ethnicity, and sex cannot “unnecessarily trammel” the interests of other employees — and, in 2013, there will never be a situation where the “necessary” way to fight discrimination is through considering race rather than simply taking steps to ensure that it isn’t considered.
Indeed, the current regulations are not only illegal, but as a practical matter result in more, not less, discrimination. The regulations inevitably pressure companies to “get their numbers right” by using surreptitious quotas and other hiring and promotion preferences based on race, ethnicity, and sex. This has been widely remarked upon and is generally accepted — and is the reason that pro‐preference groups are so enamored of the current approach.

The Center for Equal Opportunity’s experience in dealing with companies also leaves no doubt about it: Companies we have asked to make a commitment to rejecting preferences regularly cite the regulations as a constraint in this regard. Obviously, the intent and result of the regulations are to push companies to keep an eye on skin color, national origin, and sex in making employment decisions. Even if this were legally defensible, it is bad policy because it is unfair and divisive, and it discourages employers from hiring and promoting simply on the basis of merit.

Related posts: