The OFCCP Under the Current Administration

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Sam Fendler:  Hello, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups at The Federalist Society. Today we're excited to host "The OFCCP Under the Current Administration" featuring Craig Leen and Shirley Wilcher.

 

      Our moderator today is Bob Gaglione. Bob is an arbitrator with the American Arbitration Association and a former Deputy Director of OFCCP. In addition to his over 30 years of experience in legal practice, Bob has taught law and political science at the undergraduate and graduate levels.

 

      After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many as we can.

 

      Finally, I'll note that, as always, all expressions of opinion today are those of our experts, not The Federalist Society. And with that, Bob, the floor is yours, sir.

 

Robert Gaglione:  Thank you, and welcome to this webinar on the Office of Federal Contract Compliance Programs or OFCCP under the Biden administration. It is a pleasure to be with you today, and I would like to thank everyone watching this program for joining us, especially our former colleagues and friends at OFCCP and many others who we have worked with over the years.

 

      OFCCP is an agency in the United States Department of Labor responsible for ensuring that employers conducting business with the federal government comply with Equal Employment Opportunities or EEO laws. The three EEO laws that OFCCP administers and enforces are one, Executive Order 11246, which was originally signed into law by President Lyndon Johnson in 1965. Two, Section 503 of the Rehabilitation Act of 1973, and three, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, also known as VEVRAA, and the subsequent amendments to these laws. OFCCP's mission also includes providing compliance assistance to federal contractors and subcontractors.

 

      Throughout its history, there have been a total of 16 former directors of OFCCP. It is now my privilege to introduce you to two of them. Mr. Craig E. Leen is a partner at the Washington, DC law office of K&L Gates, where he is a member of the Labor, Employment, and Workplace Safety practice group. Additionally, Craig is an adjunct faculty member at George Washington University Law School. Craig was the director of OFCCP from 2018 to 2021.

 

      Ms. Shirley J. Wilcher is the Executive Director of the American Association for Access Equity and Diversity, also known as AAAED. Shirley served as the Deputy Assistant Secretary at OFCCP for seven years starting in 1993 and concluding in 2001. Shirley has been the recipient of a number of awards for her distinguished work in the area of civil rights law.

 

      So now I welcome our two speakers, and I'd like to ask first, Shirley, if you could tell us a little bit about your time as the head of OFCCP including what your goals and priorities were at the time and any successes and challenges you had as the head of this agency.

 

Craig Leen:  Bob, I think Shirley is off, technical issues. She'll be right back on, so why don't I start?

 

Robert Gaglione:  Then I'll ask you that same question.

 

Craig Leen:  It's such an honor—and I'll say it again because I want her to hear it. It's such an honor to be here with Shirley Wilcher and with you, Bob, of course. Bob was my deputy when I was at OFCCP. And Shirley was someone I looked up to and was a mentor and a friend. She served in the Clinton administration and was a very successful director of OFCCP. And I'm so happy she's here today.

 

      Let me tell you a little bit about my work as OFCCP director. I served at OFCCP from about November 2017 to January 2021, and I was director for most of that time, either acting director or director. And my goal when I came into OFCCP was to -- Bob gave you an overview, but basically what OFCCP does is for the 25,000 federal contractors and subcontractors in the United States—and there may even be more of them. That's one of the issues that I wanted to get at to figure out exactly what was the census of all contractors and subcontractors. But for those 25,000 contractors who employ about a quarter of the American workforce, they are doing something very patriotic. They are federal contractors. They are providing services to the U.S. government and supplies to the U.S. government. They're doing construction for the U.S. government. And OFCCP audits those companies and looks at their hiring and compensation and termination and promotion practices to make sure that there is not discrimination occurring.

 

      And OFCCP's bread and butter is looking for systemic discrimination. The EEOC, which I'm sure everyone's familiar with, focuses more on individual discrimination. The OFCCP focuses more on systemic discrimination.

 

      So, when I became director, I started by listening. I remember I did a number of listening sessions, and I started attending at every conference I could to hear from the contractor community, to hear from the civil rights community, to hear from OFCCP employees and staff and leaders about what needs to be done to help reform OFCCP. And there were a number of reports that had been written as well with suggestions for reforms. And the reason I felt that OFCCP needed a degree of reform was because one of the criticisms that was often made in the stakeholder community was that because OFCCP relied so much on statistics, that sometimes companies will be -- they'll be audited for their hiring and compensation practices. And OFCCP will respond and say, "Hey. We found discrimination of this -- there's a pay gap of three percent in this job group." And they'll just give them that information and then tell them, "You've got to fix it." And a lot of companies were saying, "Well, wait. We need more information, more transparency as to how did you form those pay analysis groups or job similarly situated employee groups? How did you -- what factors did you control for? Did you control for the same factors in setting pay that we do in terms of making this determination? What standard deviation did you use? What practical significance measure?"

 

      So a lot of it was statistics. Some of it was legal as well. But my goal was to open up what the agency did, to make sure that contractors knew exactly what we were finding with the thought that this would lead to better results for OFCCP over time, that we would be able to settle cases quicker, that we would use -- and I'm saying we, and I associate a lot with OFCCP still. Obviously, I'm not the director anymore, but that was my thought when I was there, transparency, and in fact, we did four pillars: transparency, efficiency, certainty, and recognition. Everything I did was conveyed under the umbrella of those four principles.

 

       And I had just come from being a local government attorney where I was in a city, Coral Gables, that had very comprehensive zoning laws and was a stickler in many ways for enforcement of the law. And I did the same thing there. I published a lot of opinions. I made sure that the code was as clear as possible. I worked with the commission to be transparent and had a number of principles there as well. I wanted to do the same thing at OFCCP.

 

      So that's basically what I did for the three years was try to increase transparency and efficiency, publish guidance so that companies knew what they needed to do be in compliance, revamped our scheduling methodology to make sure that we were picking companies that were more likely violators and not spending so much time with companies that were less likely violators.

 

      One concern I had was over 100 audits, when I started, were over four years old. So I spoke about that publicly and I said, "We need to stop that. We need to have these audits be quick." And OFCCP would find discrimination in about two to five percent of audits depending on the year. And my view was, "Okay. Well, for the 95 percent where we're not finding discrimination, we need to be quick. We need to go in there, do a desk audit, try to do it in 45 days if we can, triage—because we had limited resources, very limited resources—triage, find those likely violators, and focus our attention there. And even there, try to be very transparent about what we're doing with the hopes that those companies would settle with us.

 

      And one point that I always would raise was that some of these audits could take many years, particularly if they went to litigation. There was one audit that I remember I talked about a fair amount that was 23 years. It went 23 years, including all the litigation. And I always used that as sort of a cautionary tale that after 23 years, who are you really helping at the end? A lot of the people have left, some have passed away, unfortunately, and many people have not gotten the results. And during that whole period of time, whatever was happening that was concerning to OFCCP was not corrected. So my goal was to try to correct those things as quickly as possible. That's the approach I took, and I've taken my five to ten minutes there, but I hope in the long run when people look back at my tenure, it will be focused on transparency, guidance—publishing guidance—and getting results. That was my goal.

 

      Let me turn it over to Shirley now who I see is here. Shirley, I said at the beginning that it was a tremendous honor for me to be here with you. And I viewed you as a mentor and a colleague and a friend. And I looked at a lot at what you did in the Clinton administration because I thought you were extremely successful.

 

Shirley Wilcher:  Well, thank you. And I hope you can hear me.

 

Robert Gaglione:  Yes, we can, Shirley. Thank you.

 

Shirley Wilcher:  Okay. I had to switch to my tablet, as for some reason, we had to -- I have to get a new computer. Memory is just at its maximum, and it decided to show everybody right before the webinar. But we always come up with a plan B.

 

      In terms of my administration, I started in 1994. And it's probably been longer than some of you have been in school. It's been a while. And I've done other things since then, so forgive me if I am not as up to speed as others about OFCCP, but I was honored to be appointed by President Clinton to be the head of the OFCCP. At the time my title was Deputy Assistant Secretary, and they changed that back to Director. Except the difference is the director now reports to the secretary or the deputy secretary. At the time, I reported to the Assistant Secretary for Employment Standards. But when I worked on Capitol Hill, before that time, we recommended that the OFCCP report at a higher level, and they actually did it. And we were very happy to see that.

 

      Now, there are several things that we encountered, and I think we were up to the challenge. The first thing was the Adarand decision came down. I don't know if some of you remember Adarand, Adarand Constructors v. Peña. Basically, the Supreme Court—this is a construction case, obviously—and the Supreme Court decided that the goals or the requirements for getting a contract, which included subcontractors that were disadvantaged, and disadvantaged was defined as racial categories. And the Supreme Court said, in those instances, you have to use strict scrutiny. Well, that really caused a tremendous -- had an impact on all of us.

 

      And in the Clinton administration, the administration did a top-down review of all affirmative action programs including the OFCCP's executive order as well as VEVRAA in Section 503. It was an amazing effort headed by George Stephanopoulos and Chris Edley. So every time I see Good Morning America, I'm thinking about that review. Fortunately, the president decided there really wasn't much to change and nothing had to change at OFCCP. And you may remember the slogan "Mend It, Don't End It." Well, that was the result of the review of affirmative action programs after Adarand.

 

      We also embarked on an ambitious regulatory agenda. When you're assistant secretary, and your secretary says, "You've got to change the regs," you get it done. It wasn't easy. Many of our staff, who had been doing the same thing for 20-plus years, were a little reluctant to change, but we decided that when you have a small staff and a very large contractor universe, that we needed to focus on efficiencies, how to reach as many companies or many contractors as we could with our resources, which is why we embarked on the regulatory agenda to change or to amend 41 CFR 60-1, the procedural requirements, and added the multi-tiered review system. When you've got a short staff, you really have to focus your energies on what's important.

 

      But we also knew that there was some companies or contractors that would wait until there was a compliance review scheduled before they would even prepare an AAP or an Affirmative Action Program. And in that regard, they missed the whole point because 11246 and its regulations really are focused on getting a company to really focus on equal opportunity and identifying barriers, not just doing a piece of paper.

 

      And so, we created something called compliance checks. It seemed simplistic, but many companies when they get the note saying, "Well, we just want to know if you have an AAP. Why don't you share that with us?" they did not. And so, I suspect by even making that rather "innocent"—and I’m putting that in quotes—contact, that maybe companies would get the message that they really needed to embark on looking at their practices and policies.

 

      The 60-2 regulation, 60-2 of 41 CFR focused on affirmative action programs. Now, one thing we made very clear, though, that we were not in the business of enforcing quotas. I don't think we could have made it any clearer. But we also heard the contractor community when they talked about the burden. For example, in the workforce analysis, we added a different method for really taking a look at the workforce. We really were trying to respond to what the contractor community needed to do without overburdening them.

 

      We also imposed and added the equal opportunity survey. Some companies weren't too happy about that. Probably some are still not happy about that, but what we did—oh yeah. You all don't forget us. I've learned that lesson. But the survey also included a requirement to submit pay data because, at this point, there really is no requirement for its establishment-wide compensation data. And when we piloted the survey, we learned that the wage gap that you read about on a macro level was reflected at the establishment level. And as you went up the chain of command, the wage gap widened. And so, that is why we implemented the survey.

 

      Now, one other thing that I thought was a good idea that preceded me were the construction megaprojects. And in the construction area, I found the megaprojects to be more successful at increasing the participation of women and minorities in the construction industry. And I'll just—there's one thing, Sam, you're going to learn is being lobbied by all kinds of constituencies, and the women in construction were pretty adamant. I never forgot that, but I also realized there was little that I could do other than come up with something creative. And I thought the megaprojects were a good idea because it allowed the OFCCP as well as the General Services Administration and other agencies to sit down with the contractors as well as the constituency groups before the projects started to identify what jobs needed to be filled, and it gave the constituencies and the contractors a way to reach out and recruit and make sure that they had their representation and participation even before the project actually began.

 

      The last thing that we did—of course, one of the last things—we focused on equal pay. And that’s why the EEO survey was done but also as a part of our compliance review process, there was a really serious focus from the president on down on equal pay.

 

      And a quick funny story is that sometimes it's about timing. Your initiative may sit and linger and not be taken care of until the timing is right. And during the State of the Union address when President Clinton said, "Equal pay for equal work," and Senator Strom Thurmond of South Carolina stood up and clapped, we said, "Yes, it's time to move our EEO survey and focus on equal pay," and so we did.

 

      One last thing is compared to the current administration, I had a high of 815 FTEs or employees, roughly. That was the high mark. Hers, at this point, is at 420, and so you have to measure one's success partly based on the resources that you have. And it is something that every OFCCP director in every agency that's in enforcement mode really has to take into consideration and balance. So, overall, I felt our efforts to really focus our energies were successful, at least that's what people are telling me, and I am delighted to have had the opportunity to serve.

 

Robert Gaglione:  Well, thank you very much both Shirley and Craig. Go ahead, Craig.

 

Craig Leen:  Bob, could I add one thing to what Shirley said because I know we're going to move now to talk about recent action of the Biden administration, but I did want to mention two things that we did in the Trump administration that were based on what had been done by Shirley in the Clinton administration.

 

      One was the Affirmative Action Verification Initiative and the use of compliance checks. So Shirley had really focused on making sure that companies were doing basic compliance in addition to the broader compliance like pay equity and things like that. And there had been a Government Accountability Office report that said that about up to 85 percent of federal contractors were not in compliance with their affirmative action obligations. And one reason why that could be true is that OFCCP would only audit about one to two percent of them a year, and often the same ones over and over. So because those were the bigger ones, and it's just the way that OFCCP scheduling methodology worked. So one of the goals was to try to touch every company. And I'll tell you, we got a lot of support for it, too, including from the contractor community because there was concerns about free riders, companies that weren't doing anything but were taking government funds.

 

      So the contractor portal, a lot of that—which has been extremely successful and continues to be done in the Biden administration—that has its roots going back to what Shirley did with compliance checks and focusing on affirmative action.

 

      One other thing, she mentioned very strongly that OFCCP does not do quotas or support quotas or preferences and we highlighted that as well. We put out FAQs, which you worked on, Bob, to emphasize that there's a difference between affirmative action in employment and affirmative action in higher education, which is what the focus of the Supreme Court is right now. Affirmative action in employment does not -- it prohibits quotas or preferences. And OFCCP will take action when it sees a quota or a preference occurring. And we'll seek and we'll go where the numbers take it, and we'll seek to eliminate that. So that also was something that Shirley focused on, and we did as well.

 

Robert Gaglione:  Well, thank you both for the very interesting backgrounds on the agency during your tenure as leader of the OFCCP.

 

      And now we're going to shift to the OFCCP under the current administration, which is, of course, the administration of President Joe Biden. And there have been a number of reforms. And I'm going to turn it over to Craig, and then, following Craig, Shirley to comment on some of those reforms. There have been many, of course, so why don't you just pick and choose and tell us about some of them?

 

Craig Leen:  Okay. That would be great. Jenny Yang, she's the current director of OFCCP, and she formerly was the chair of the EEOC. I do want to tell you right at the beginning, that there is a camaraderie among OFCCP directors. We all like each other. We've been in Republican and Democratic administrations. We care about the agency. And so, we're careful in how we speak about our successors, our predecessors, and want to be generally supportive.

 

      So I want to say at the beginning that when Director Yang was appointed, I thought that was great OFCCP because she had been the EEOC chair. I thought it elevated, in many ways, OFCCP's profile within the administration. She came in on Day One. We only had one day between us. I was there till the last day. She started the next day. We had a great conversation when we were doing the transition. And I followed her closely, and I continued to be involved in the field. She cares deeply about civil rights, and you can see that through her legacy, through her background, through what she has done in her career.

 

      Now, you know, Democratic and Republican administrations often take a slightly different approach though. I think Shirley would agree. Although we did do a lot of things in common, too, between Shirley and I, but there are different approaches. One thing that I think is very positive is Director Yang did the H.I.R.E Initiative, which she has done with Chair Burrows from the EEOC, which is providing guidance to business on how to comply, how to do their diversity, equity, inclusion, accessibility programs; how to best practices. They're engaging in dialogue with the business community, which I think is extremely important. And that's something where OFCCP is different than a lot of the other civil rights agencies because it engages with business. A big part of its mission is compliance assistance, helping businesses comply, helping increase equal employment opportunity, but not only through enforcement. So I'm glad to continue to see that.

 

      Another reform that's happened that I'm supportive of is the focus on intersectionality. I think that it's -- if you look at pay gaps in the United States, the largest pay gaps are for women of color, almost 50 percent. And yes, when you control for specific job and things like that, that percentage goes down, but it's still largest for that group. So if you're going to do a pay equity audit, and you're not going to consider the intersection of race and gender, then you're not going to fully address the issue. And that's incredibly important to remember. And that can be in different jobs you may see profiling or stereotypes against, for example, black men or Hispanic women or Asian men or Asian women or whites in certain circumstances. And OFCCP will look at all of those.

 

      One of the things that it focuses on extensively is eliminating stereotypes that could lead to steering of candidates into certain jobs. So that's something that I'm glad to see her doing. We started that in the Trump administration as well. Every administration has cared about that, but she is continuing to carry that through, and that's been a big focus. And I've been glad to see that.

 

      A couple of areas where there's been a change—and I'm not going to criticize, but I'll just defend what I did in the Trump administration—was the -- one of the things that I did was put in a set of regulations to assess pay and hiring discrimination. It was based on the transparency initiative, and it essentially required OFCCP -- it followed Title VII—and I thought was the gold standard—in sort of establishing whether there's been pay discrimination, hiring discrimination, disparate treatment, or disparate income -- pardon me, disparate treatment or disparate impact discrimination.

 

      And it basically had a whole -- the regulations said how OFCCP would show that case. For disparate treatment cases, the agency would need to show two-standard deviation disparity. They would need to show practical significance. It would need to identify supporting anecdotal evidence. For disparate impact, it would need to identify the policy or practice that's at issue. And I was proud of those regulations, and I think they -- we had record highs in terms of recoveries during the Trump administration. And that's one thing I share in common with Shirley. She had some record highs, too, when she was there. And one of the reasons we did, I felt, was because of the transparency and working with business.

 

      Now, to be fair, I will say that the Biden administration, I think agrees with all those things. I definitely think Director Yang does, and she wants to follow Title VII, but they have taken the position that they feel—to be fair to them—that they feel that those regulations removed too much prosecutorial discretion from OFCCP. That was their argument. So they are seeking to remove a number of them. They're still going to keep having a preliminary determination notice with information, but they're going to remove some of them.

 

      And what I would say to that is—and I say this with great respect, but I think that is a mistake—I do think that added guidance and that sort of blueprint for how to put together a case in the regulations was extremely helpful for OFCCP and down the road will be helpful in proving cases. And also, helpful in settling cases because one thing I saw when I was OFCCP director—and this was one of the criticisms businesses would make—is they would say, "Hey. You're coming to us saying that we have a pay disparity of six percent in this pay analysis group to three standard deviations, and we don't see it. We don't know how you're getting there. Are you controlling for all the factors that we've set?" That was one of the other requirements of this regulation that you have to control for every reasonable factor, legitimate factor, that the company would control for. And so, they would come back and ask, "How did you get this result? How would you get this result?" I would hear that a lot, and what I found was if you gave them the information in a preliminary determination notice explaining it, they would take that back to their CEO or to their executive and say, "You know what? We may disagree with OFCCP, but they got a case. And this is -- we have an issue. We need to address this."

 

      And one thing I always wanted to do was get OFCCP to be more the nature of an auditing agency. And an auditor goes in, is very neutral, assesses the situation, produces a report. And then the company should take action based on the report. And, of course, for OFCCP, they must take action based on the report. But that was always my goal, so I think moving away from that is a mistake. I say that respectfully. I hope that a lot of that remains when it's all said and done. But I would also think that Director Yang supports a lot of those reforms. She probably just doesn't want them in the regulations to be fair. So those are some thoughts about some of the reforms.

 

      I'd like to turn over to Shirley to see what she thinks.

 

Shirley Wilcher:  Thank you. I don't have much more to add to that. The one thing I did mention to the administration when we met with them during the transition is to continue the construction megaproject model particularly where there's so much money going into construction. With the president's project that's going to repair bridges and roads and there are so many opportunities to provide opportunities for women and people of color, people who have historically not participated as much in construction projects. And so, I just see this as a no-brainer. We really need to see more of that. These projects are going to last a few years, and so I think it's just a great opportunity to do that.

 

      There was one thing that we disagreed on, AAAED, American Association for Access Equity and Diversity. We were started in 1974 as the American Association for Affirmative Action. Needless to say, we support the mission of OFCCP under the executive order and the other laws, but we did have a disagreement about the latest proposed changes impacting post-secondary institutions and other contractors. The proposed efforts to change the scheduling letter. We did submit our comments. Our members just didn't agree that asking for so much more information at the desk audit stage was necessary. They considered it a burden, and I'm very sensitive to the word burden because contractors regularly reminded me of all the burdens that they undertook.

 

      So the question is why do it at the front end when there's so much data to go through? Why not wait until the information is absolutely necessary before requesting that kind of information, and so, in the whole notion of campus-like settings to do reviews. Half of our members are in higher education, and so they were particularly concerned about what those implications are, and most of them have very small EEO staff. And so, why impose all of that when the agency is "trying to get its numbers up," and I put that in quotes, increase its productivity.

 

      I know what it is to speak before the Appropriations Committees, and you have to be -- and in any agency that's in the enforcement business has to balance. And we all struggle with that, the time that you spend doing a review versus the need to show a return on investment. It's just a struggle that we all undertake. We wanted to see some results normally. I suspect does the Congress. So it's a challenge, and I do hope that she will get her increased appropriations to hire more staff to do the job that needs to be done. But in the meantime, they may want to go back to the tiered review process, other means of touching, as I would say, the contractor community without doing a full-blown compliance review. And so, that's why we added the changes to the 60-1 regulations.

 

      Now, I want to also add to our delight the Biden administration quickly rescinded the Executive Order 13950 on diversity and diversity training when it started. AAAED joined the National Urban League, and the National Fair Housing Alliance, and for the first time in years, filed litigation, engaged in litigation because we felt that the First Amendment was violated. Not to mention the fact it really had an impact on our own diversity training. It had a real financial impact on us. But I'm delighted that the incoming Biden administration saw fit to rescind that executive order. So I'm really happy about that.

 

      But overall, the director has been very responsive. She's brilliant, I think. She's got her hands full. We always do. And you have your critics on both sides, but I wish her well, and I urge her to use some of the other methods to reach out and touch so that one can focus on the cases that really need some attention.

 

Craig Leen:  Yes. And if I could echo something Shirley said -- and Director Yang is brilliant, and she's been very interactive. I've spoken to her a number of times. She does a lot of outreach. I support that. I just want to be clear about that.

 

      I want to echo, though, on the scheduling letter, that's a big issue for the contractor community. There's going to be about 12, 13, 14 additional items or expansion of items in that scheduling letter if it ends up getting approved as written. And that includes going back farther on some information, asking for more information about promotions, more information about outreach and recruitment, more information on compensation. And here's the issue. When you look at any one of those things, it's useful. It's helpful. It's a good thing to know for a likely violator. So if you go in there, and you do your audit, and you find that there's a problem, then OFCCP can issue supplemental information requests, which they should do carefully because these -- you don't want to do them too much either because they do extend the length of audits, and they can be burdensome. But there's a place for those sort of questions.

 

      The concern that the contractor community has and that I have and has been echoed by Shirley is that if you do it all upfront, for every audit, which is what the scheduling letter is, that's what the company receives—the contractor. They then have to produce all that information within 30 days. It's a lot of information. And that means that OFCCP has to go through it, which means it's going to take a lot of time. It's going to be very hard to stick to the 45-day desk audit goal that was set when I was director. It's going to take more time by definition. And OFCCP's audit levels are already going down, and that's because of the budget. They don't have the FTE they need to be able to do the types of audits that I think Director Yang wants them to do with the longer more extensive audits.

 

      So that's why I'm a strong supporter of efficiency in audits, getting information, doing your statistical review. If there's not an issue, let it go and move on to the next one. You don't want to get stuck looking at 30, 40 entities for years. You want to look at 1,000 entities; 2,000 entities and then pick those 50 to 100 that have issues and focus on them. And that's where you send the supplemental requests.

 

      So it's not that the substance of them -- I don't think Shirley and I disagree with the substance of some of those requests. Sometimes you need that information, but just not right at the beginning for everyone. That would be my opinion. I think it's going to make it harder for them to get results because it could take time, a lot of time.

 

      And then one other thing I wanted to reference that Director Yang has continued that was in both the Clinton administration and was brought back in the Trump administration was the Ombuds Service. Director Wilcher, Shirley, she created an ombuds—a regional ombuds—and it went away. And then when I became director, I wanted an ombud. Someone you could go to that would be business savvy -- not that OFCCP isn't. I mean the COs there are, but they're also looking at it from the perspective of the government.

 

      I wanted someone who was sort of removed from that, who employees -- pardon me -- who contractors could go to and say, "Hey, are we being treated fairly here? What do you think about this? Can you help us work through this issue?" Like an ombuds is supposed to do.

 

      And I feel like one of the focuses that both Shirley and I shared was trying to make sure that the administrative agency that we ran was efficient. And I know that's a concern of The Federalist Society generally that I've heard spoken is administrative overreach or too much power in a federal agency to use, basically, the power of that agency and the fact that it has both the ability to initiate a review, to keep that review going in audit, to prosecute, to settle. It's a lot of power to combine. And the more discretion you give to an agency like that, without some pretty clear parameters, the more possibility there is that there will be uneven application of those laws across the United States, across regions, that you could have situations where—and I'm not saying this in any particular case—but you always have to be careful that there's not abuse of discretion or abuse of power with a federal agency. You need to be looking for that, checking that, and that's why I think an ombuds is so critical.

 

Robert Gaglione:  Thank you. And, Shirley, did you want to comment on the Ombuds Service during your tenure?

 

Shirley Wilcher:  Well, it was one of my ideas. It just seemed to make sense given the concerns of the contractor community. We had just started it, and we had a few challenges, partly because the people that we put in charge had been actually the enforcement people. And so, they were busy thinking that they were still enforcing. I thought it was great that Craig and his team really brought in someone who specialized and had a history in being neutral advisors and professionals, ombuds people. I think it made all the difference, but it was one of our initiatives, and I think -- I'm just delighted to see that it took shape under Craig's administration. And I hope the contractor community thinks it's useful.

 

Craig Leen:  And that's something Director Yang is continuing to focus on and to utilize, which I think is great.

 

Shirley Wilcher:  Now, the one thing that has not been continued since a couple administrations is the EVE award program, the Exemplary Voluntary Efforts program. You can't always use the stick. You have to use the carrot as well. And companies really competed to receive an award from the Department of Labor. It was a major event, like an Academy Award. The secretary gave the awards, and it was great. I think sometimes incentives work, and it encourages companies to be involved in that process. And I hope sometime in the future either under Jenny's administration or others, we'll see the benefit of sometimes acknowledging good deeds as well.

 

Craig Leen:  I will tell you, Shirley, we looked at the EVE award itself in setting up the three awards we did, and I'm not saying that we shouldn't have also brought back the EVE award because I did like the EVE award. But we had a few awards as well, including the Excellence in Disability Inclusion Award and a couple of other awards that we started doing, and that never really got able to be finished, ran out of time. But those awards would have been useful. I'm a strong supporter of awards—the carrot and the stick.

 

      One thing that we did do that has changed, which I would ask OFCCP to consider bringing back at some point, in the focused review program, which was a program that I started in the Trump administration where we would focus on an area which maybe was under focused on in the more general audits, which tend to be very statistical in nature and mostly focus on pay and hiring disparities based on race and gender, which, of course, is incredibly important to focus on, so I didn't want to change that. What I wanted to do, though, was make sure that we had some focused reviews where we were looking at looking at, for example, disability, disability inclusion. So the Section 503 focused review program where that would be the focus of the audit. It would be more qualitative in nature. And my hope was that there could be some statistics brought in as well.

 

      But I wanted -- 99 percent of OFCCP's recoveries are in the race and gender area. Less than one percent, I think, in the disability area, so I wanted disability discrimination to be viewed as importantly as race and gender discrimination. There's no place for racism or sexism in employment. And there's also no place for ableism. So that's why I wanted -- that was important to me.

 

      And then we also did a focused review on religious accommodations and religious discrimination. So I thought that that was one -- it's an area where OFCCP doesn't focus on as much. So that was one of the things that was important to me. And they moved away from focused reviews, but what they did say was they were incorporating them into the broader audits. That's something that will have to be assessed by those who go through them. But I will say that it would -- I think the 503-focused reviews were beneficial. So I'm hoping that another sort of program comes forward in the disability area. I know that Jenny cares deeply about disability discrimination. We talked about it at least three times, and she's spoken to a couple organizations that I work with on disability, so I know she cares deeply about it.

 

Shirley Wilcher:  And you know AAAED gave you an award for your activities related to disability discrimination.

 

Craig Leen:  Yes. You're going to make me emotional. Yes, you did give me an award, and I'm so honored to have it. It's here in my office, and that was one of the highlights of my entire career. Civil Rights Organization as venerable and as important and distinguished as AAAED and my predecessor, Shirley Wilcher, they did -- and understanding that there was disagreement with some of what the Trump administration did, they recognized -- they recognized the focus on disability discrimination, and they honored that. And I was honored, Shirley.

 

      And a lot of this comes from my daughter, who has profound autism, who just turned 18, and I was -- a lot of that's inspired me in this area to get involved, seeing how hard it is to get support and accommodations for her and knowing that that happens everywhere and wanting to make an impact. That was part of the reason that you awarded this to me because of my story and everything. Anyway, I've talked too much about it, but it was a very -- thank you. I want to publicly say thank you again.

 

Shirley Wilcher:  Well, thank you. It was well deserved. And I should add, we continued at AAAED. We are a partner with -- an alliance partner with ODEP, the Office of Disability Employment Policy. And they asked me to write an article. I did last year, and they've participated in our conference.

 

      And, incidentally, we are having our 50th anniversary in 2024. AAAED, formally AAAA, will be 50 years old next April. And we can talk more about the continuing challenges but also opportunities. And it will be an interesting time to reflect on what all has happened in 50 years.

 

Craig Leen:  Yes.

 

Robert Gaglione:  Well, that's great. I did want to ask you both to comment on something. And Sam, I don't know if you have available the monetary relief figures that are posted on the OFCCP website. They have some data, which there are different ways to measure the performance of a federal agency. At OFCCP, we typically look at—and I think both of you alluded to—the monetary relief and the amount of affected class members that benefit from that relief because the money the federal government recovers in OFCCP is actually distributed to people who have been discriminated against.

 

      And let me just quickly go over these numbers. They should be on your screen now. Fiscal year 2019, OFCCP recovered in excess of $40 million, $40,569,816. In fiscal year 2020, $35,608,368. And then, of course, during fiscal year 2021, we shifted from the Trump administration to the Biden administration, and that number for 2021 is $26,445,764. Fiscal year 2022, a significant drop down to $11,763,447. And then the first quarter of fiscal year 2023 is reported as $3,128,016. And we also have below that the numbers of affected class members has dropped significantly from the high in fiscal year 2020 of 68,695 down to in fiscal year 2022, 9,890 class members.

 

      Let me turn to you, Craig, and ask, again, we've talked some of these issues a little bit, but what is it that affects the agency in terms of the numbers being significantly lower in the last few years? We've talked about the budget and any other thoughts you have on where the agency is at on terms of a performance level.

 

Craig Leen:  Yeah, so the -- you know what? I want to say a little bit about those numbers. I was very proud of the numbers we got in the Trump administration. They were record numbers in terms of highs. Now, understand that Shirley's numbers need to be adjusted for inflation. She had some pretty high numbers too, but we had very high numbers. I was proud of that. I think a lot of that came from the fact that we were so focused on quick audits and settling, settling matters where we could.

 

      And then we also introduced the ERCA program, the Early Resolution Conciliation Agreement, Early Resolution Procedure Program, which basically, even before a finding, if we saw an indicator, we would meet with the company. We would agree to resolve it, and we would resolve it across the entire company. So that chart doesn't indicate this, but my recollection -- the public number that I would state, it was something over 600,000 employees were in the ERCA program because of these large broad-based early resolution agreements.

 

      Now, part of those agreements -- there was a carrot as well as the stick. There was a carrot in those agreements in that they were proactive, forward-looking, and you typically would be taken out of the scheduling list for your company for the next -- I think it was five years. And the benefit of that was that -- but at the same time, you would have to publish a report every year. So you were brought into a different sort of review. Every year you'd have to do a report talking about the different compliance measures within the program. Companies really were interested in the ERCA program. It was very successful and led to some of the largest settlements in OFCCP history, a number of them, which is why the numbers are so high.

 

      Now, in the Biden administration, they have moved away—not from early resolution. They still want early resolution—but from some of those incentives that were in the ERCA program such as the five-year exemption from scheduling across the company. Now, the thing is I'm sure Director Yang would defend that and explain why she did it, but one thing is whenever you do that, though, and you decrease the incentives for business to cooperate with the government, you are going to get lower settlement amounts. That's just a fact. That's just the way it works. So we were very focused on incentives, on reaching these settlements. I did settle a lot of cases too. So they also have to build up their caseload under Jenny as well. So I think it's a combination of factors.

 

      But I think one issue is -- and I don't want to overstate this because Shirley did care a lot about resolving matters, too, and I thought was very collaborative with business in an appropriate way. I would say that in Republican administrations, you tend to see more of a pro-business focus, more focused on settlements. And in Democratic administrations, you tend to see more likely that an enforcement action or more enforcement actions will be brought, a little more adversarial, which leads to the interesting phenomenon that in Republican administrations you often will have higher settlements. Now, that in my opinion is higher settlements is good. So I support the way I approached it, and I think the business community appreciated it as well. And you can't argue with the civil rights outcomes, which were very positive.

 

Robert Gaglione:  Shirley, you want to comment on that at all?

 

Shirley Wilcher:  Every director has his or her challenges, especially when there's change from one administration to the next. I always say I feel sorriest for the career staff that have to readjust every time there's a new director and has a new philosophy about doing the job. It's amazing how they -- some of them stay so many years because of that.

 

      I can't diagnose what the issues are. I just know she has her challenges, but I'm kind of -- it's kind of interesting, Bob, that you would mention the numbers. I would think the contractor community would be kind of happy with having so few financial settlements. But, again, it's a balancing game. You really have to balance the time you're prepared to spend in each compliance evaluation and compliance review and the need to show productivity. It is a challenge in every administration.

 

      For me, the financial settlements were as important because when I worked on Capitol Hill -- you might not know. I was the associate counsel for civil rights for the House Committee on Education and Labor. And I'm dating myself, but it was in the '80s and '90s. I left in 1990, I think. And we did a wall-to-wall investigation as part of our oversight function of OFCCP. We went to all ten regions, and we looked at the numbers. And the numbers of actual reviews were in the thousands, but the amount of financial settlements were quite low. Now, there's something called the numbers game in the bureaucracy, and when you go in just to say that you were there, you add that to your column, but you won't find anything. There is a need to balance that kind of activity with really spending the time to do an in-depth review. It is really a balancing game.

 

      So let's hope we won't see the pendulum swinging so far in the other direction, but they definitely have their challenges. And I wish them well because we all know how important this program is. It's just a question of finding the right balance.

 

Craig Leen:  Yes. It's a complex question. That's why it's -- although I'm very proud of the numbers, it is complex because it depends in part on the caseload, how many cases you have remaining. It depends on -- any new administration takes some time, so it's probably fair to look at it over the whole course of the administration and the different goals that are set. There's different priorities. My priority was trying to reach resolution. So that was a big priority of mine because we had such -- we had over 100 cases that were over four years old. Some of them had some fairly significant findings, so that's why I think it's complex.

 

      Could you put up that document again real fast, though, because I actually wanted to point out another number? So what I think is the most interesting number here, though, in some ways, is the disability number. Look. And this is across administrations, so I was trying to address it through the Section 503 focused review program, but notice that disability, the percent recoveries are very low and not a lot of individuals. And now the EOC does some of that work too, but the point is I do feel that there was a strong reason for this Section 503-focused review program, and something like that should be brought back. OFCCP does need to include more of a focus on disability I think.

 

      One last thing I'd like to say—and I think Shirley will agree with me—one thing I've been very happy to see Director Yang do—and it's similar to something that I did too—was a focus on caregiver discrimination. And she's spoken very strongly on that. I spoke a lot on parental leave and trying to make sure that companies had both sufficient equitable and sufficient parental leave. And we put it into our checklist for every audit. We would look at a parental leave policy to make sure that men and women were treated the same so that there wasn't disparate treatment. And then we'd also look at the sufficiency of parental leave to make sure that disparate impact was not occurring against women often. If you don't give sufficient parental leave, or when women come back -- let's say a woman executive comes back and is not fully integrated back into all the work opportunities they had before, that can lead to a failure to promote in the long run that can disparately impact women. And that's what a lot of the studies showed, and so I was very focused on parental leave. We put out FAQs.

 

      She's been very focused on parental leave but also caregivers more generally, which is an incredibly important focus because caregiving discrimination not only impacts gender and race. There's a lot of intersectionality there. It also, obviously, impacts people with disabilities. People are being cared for.

 

      So I'm glad to see that. I'm sure you agree, Shirley. I know you . . . .

 

Shirley Wilcher:  Yes. I know we're running out --

 

Robert Gaglione:  Yeah.

 

Shirley Wilcher: -- running close to time. I do want to add --

 

Robert Gaglione:  Give us your final words, Shirley.

 

Shirley Wilcher:  Okay. Well, first of all, OFCCP is still necessary. I know they're troublesome to those who have to do all the work, the burden on the contractor community, but again, it's part of the deal when you do get a federal contract. And it's still necessary. And why am I saying this?

 

      Not only is OFCCP necessary. Affirmative Action is still necessary. What's happening with DE&I, it's controversial, but again, our demographics is showing that we're going to have to address issues of equal opportunity for all of our constituents and for all of -- to use in a maximum way our human resources, and that includes individuals with disabilities. Particularly since COVID, I suspect there are more opportunities to work from home, which is what I do more often than not, and—I need to get a better computer—but at least work from home. And so I just think there will be more opportunities for some individuals with disabilities.

 

      One last thing, for those of you who work with diversity programs or colleges and universities, please urge them to work with legal as well because we have seen several cases where, well, in the interest of promoting diversity, they're breaking the same laws that we've had in place since the '60s, hiring or firing a white male so that they can hire a black female and a white female. I understand why they might want to do it, but they need to talk to their lawyers before they even think about doing something like that. We are urging, in our association, to have a partnership between HR and DE&I and anyone else involved in the process because we have to remember to act in a way that's consistent with the laws.

 

      And I'm hoping both the director of OFCCP and the chair of EEOC will use their bully pulpit to urge more connection and more partnerships between offices so that whatever program you have is consistent with the civil rights laws.

 

Robert Gaglione:  Thanks, Shirley.

 

      Craig, final word?

 

Craig Leen:  Yes. It was the honor of a lifetime to be the OFCCP director, and I loved being part of the group of directors with Shirley and others and with Jenny Yang and Charles James, Pat Shiu, all of the different directors of OFCCP. It's an agency that has an incredibly important mission, a very American mission, that everyone should have an opportunity at the American dream. And everyone should be able to take part in those federal dollars that go to federal contracting.

 

      And OFCCP does its best -- does its best when it's open to everyone. So when it's focusing on eliminating disparities—no matter your race, gender, ethnicity—it goes in there, and if it finds a disparity using all the two-standard deviations, all of that, under auditing principles, it finds that disparity, the company should want to fix it. That's the idea. It's auditing.

 

      I think there needs to come a time where we're not so focused -- certainly, in a lawsuit or under Title VII, you look at disparate treatment, disparate impact, but also part of this is doing the audit, being transparent about it to the company so that the companies, all of which now are basically doing pay equity self-audits, go in there, they see the disparity. And they want to fix it. And that's something that OFCCP should encourage and incentive. And that can have a huge impact on equal employment opportunity for everyone.

 

      And so that's why I'm very proud to have been the OFCCP director. I love the agency. I'm proud of my reforms. I'm watching with a lot of care towards the agency as I know Shirley does. We want Jenny to succeed. Like I said, it's wonderful she's leading the agency. So stay tuned. OFCCP's always an agency of interest, and it's making a big impact. So we'll see what happens. But glad to be here.

 

      And Bob, I should thank you again. Bob was my deputy director. He loved interacting with the stakeholder community. He made this happen today. I think Shirley and I would both say that. And we want to thank you, too, Sam for putting this all together. But Bob, this would not have happened but for you, and you care deeply about OFCCP as well, so thank you.

 

Robert Gaglione:  Well, thank you, Craig, and thank you, Shirley. I wanted to thank everybody --

 

Craig Leen:  Oh, Bob. Bob, can I say one other thing? I don't want to forget this. I know Shirley would want me to say it too. We talked about our successes, but it's the success of the career staff. We need to say that.

 

Shirley Wilcher:  Yes.

 

Craig Leen:  And Shirley would often say that. When I'm talking about all these settlements, that was our regional directors. Those were our compliance officers. Those were our district directors. It's empowering them. So I do want to give them the credit they're doing. I know a number of them are likely listening.

 

Robert Gaglione:  Absolutely. Thank you so much. And I wanted to thank the audience. We have a very distinguished audience today as well. But thanks to our speakers, and I'll thank The Federalist Society and turn it back over to Sam. Thanks so much.

 

Sam Fendler:  Well, Bob, thank you very much. And on behalf of The Federalist Society, I want to thank all of our panelists today. I do think a special thank you is probably in order for Shirley. Thank you for powering through those tech issues. We greatly appreciate it.

 

      But thank you also to our audience for joining us. We greatly appreciate your participation. Please check out our website, fedsoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars.

 

      With that, thank you once more for joining us, and we are adjourned.

 

 

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