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The Promise of Executive Order 11246: “Equality As a Fact and Equality As a Result”

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The Promise of Executive Order 11246: “Equality As a Fact and Equality As a Result” DePaul Journal for Social Justice Volume 13 Issue 2 Summer 2020 Article 4 May 2020 The Promise of Executive Order 11246: “Equality as a Fact and Equality as a Result” Jane Farrell Follow this and additional works at: https://via.library.depaul.edu/jsj Part of the Civil Rights and Discrimination Commons, Law and Society Commons, Legislation Commons, Public Law and Legal Theory Commons, and the Social Welfare Law Commons Recommended Citation Jane Farrell, The Promise of Executive Order 11246: “Equality as a Fact and Equality as a Result”, 13 DePaul J. for Soc. Just. (2020) Available at: https://via.library.depaul.edu/jsj/vol13/iss2/4 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal for Social Justice by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Farrell: The Promise of Executive Order 11246: “Equality as a Fact and Equ THE PROMISE OF EXECUTIVE ORDER 11246: “EQUALITY AS A FACT AND EQUALITY AS A RESULT” Jane Farrell* INTRODUCTION .......................................................................................................................... 2 I. THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS ...................... 3 A. OVERVIEW OF FEDERAL CONTRACTORS .................................................................................. 4 B. HISTORY AND LEGAL AUTHORITY ........................................................................................... 4 1. Executive Order 11246 .................................................................................................. 6 2. The Statutes: Section 503 of the Rehabilitation Act of 1973 and the Vietnam Veterans’ Readjustment Assistance Act of 1974 ..................................................................................... 8 C. BEYOND TITLE VII COMPLIANCE: CREATING AFFIRMATIVE ACTION PROGRAMS ................... 8 D. OFCCP’S ENFORCEMENT PROCEDURES AND MECHANISMS .................................................... 9 II. EO 11246 ENFORCEMENT IN THE OBAMA ADMINISTRATION............................. 10 A. RETAINING INVESTIGATORY FLEXIBILITY ............................................................................. 10 B. PRIORITIZING SYSTEMIC PAY DISCRIMINATION, NEW ENFORCEMENT STRATEGIES .............. 11 C. EXPANDING AND MODERNIZING PROTECTIONS ..................................................................... 15 1. Sexual Orientation and Gender Identity ...................................................................... 15 2. Pay and Compensation Transparency ......................................................................... 16 3. Sex Discrimination Guidelines .................................................................................... 16 4. Room for Improvement: The 2016 Government Accountability Office Report ........... 17 III. EO 11246 IN THE TRUMP ADMINISTRATION ............................................................ 18 A. TRUMP ADMINISTRATION DIRECTIVES .................................................................................. 18 B. EXAMPLES OF THE VOLUNTARY COMPLIANCE APPROACH IN OTHER DOL AGENCIES .......... 21 IV. EO 11246: CHALLENGES AND LIMITATIONS ............................................................ 23 A. DEFENDING THE OFCCP ....................................................................................................... 23 B. ARE “SEXUAL ORIENTATION” AND “GENDER IDENTITY” PROTECTIONS PERMANENT? ............ 24 C. WHITHER AFFIRMATIVE ACTION ........................................................................................... 28 D. HOW WILL OFCCP USE THE EEO-1 DATA? .......................................................................... 29 V. THE FUTURE OF EO 11246: OPPORTUNITIES FOR RECOGNIZING ITS POTENTIAL ................................................................................................................................ 30 A. THE MESSAGE IN THE REGULATIONS ..................................................................................... 30 B. DO VOLUNTARY COMPLIANCE AND SELF-MONITORING PROGRAMS MEET THE REQUIREMENTS OF EO 11246? .................................................................................................. 30 C. SUGGESTIONS FOR MODERNIZATION ..................................................................................... 31 CONCLUSION ............................................................................................................................. 33 * Jane Farrell is a member of the graduating class of 2020 at University of California, Los Angeles School of Law. She is grateful for feedback on this note from Patricia Shiu, Professor Jon Michaels, and Professor Blake Emerson. Published by Via Sapientiae, 2020 1 DePaul Journal for Social Justice, Vol. 13, Iss. 2 [2020], Art. 4 INTRODUCTION The United States federal government spends approximately half a trillion dollars annually on contracted services and products. 1 Federal agencies are required by law to follow specific policies and procedures in soliciting, negotiating, and awarding federal contracts.2 Contracts formed between a business and a federal agency also include non-negotiable terms and conditions governed by statutes and executive orders. Many of these non-negotiable terms relate to the employment conditions of people working on federal contracts, including their wages and benefits. The reasons for including these employment-related terms are varied, but stem from an understanding that the federal government should use its contracting power and taxpayer dollars to raise the labor standards for workers across industries.3 Beginning in 1941, the U.S. government also began to include non-negotiable terms in federal contracts aimed at advancing the civil rights of groups historically excluded from work on federal contracts and remedying past discrimination.4 The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is responsible for enforcing one executive order and two statutes governing the employment practices of federal contractors as they relate to civil rights. All three laws prohibit contractors from discriminating against different classes of workers and require contractors take affirmative steps to ensure equal 1 U.S. Treasury, Data Lab – Contract Spending Analysis, https://datalab.usaspending.gov/contracts-over-time.html; U.S. Treasury, Data Lab – Contract Explorer, https://datalab.usaspending.gov/contract-explorer.html. 2 Government Services Administration, Federal Acquisition Regulation (FAR), https://www.gsa.gov/policy-regulations/regulations/federal-acquisition-regulation-far. 3 Public agencies would be incentivized to contract out work if they knew labor costs would be lower on contracts than if the same work were done in house. Furthermore, businesses bidding on contracts would also be incentivized to keep labor costs as low as possible to secure bids. Neil Damron, Delivering for Taxpayers: Taking On Contractor Fraud and Abuse and Improving Jobs for Millions of America’s Workers, NAT'L EMP'T L. PROJECT 1, 3 (2018), https://s27147.pcdn.co/wp-content/uploads/Delivering-for-Taxpayers-Taking-On-Contractor- Fraud-Abuse-Improving-Jobs.pdf. For a discussion of how federal purchasing power could be used to raise the wages and working conditions of working Americans, see Lew Daly & Robert Hiltonsmith, Underwriting Good Jobs, DEMOS 1 (2014), https://www.demos.org/sites/default/files/publications/UnderwritingGoodJobs_2.pdf.; Ann O’Leary, Making Government Work for Families, CTR. FOR AM. PROGRESS 1 (2009), https://cdn.americanprogress.org/wp-content/uploads/issues/2009/07/pdf/federal_contracting.pdf. For additional background on federal labor standards, see WILLIAM G. WHITTAKER, CONG. RESEARCH SERV., RL32086, FEDERAL CONTRACT LABOR STANDARDS STATUTES: AN OVERVIEW (2005); WILLIAM G. WHITTAKER, CONG. RESEARCH SERV., RL94-908, DAVIS-BACON: THE ACT AND THE LITERATURE 1 (2007), https://digital.library.unt.edu/ark:/67531/metadc26061/m1/1/high_res_d/94-908_2007Nov13.pdf. 4 Exec. Order No. 8802, https://www.eeoc.gov/eeoc/history/35th/thelaw/eo-8802.html. https://via.library.depaul.edu/jsj/vol13/iss2/4 2 Farrell: The Promise of Executive Order 11246: “Equality as a Fact and Equ employment opportunities.5 These laws have resulted in improvements in labor market conditions for protected groups, most notably Black Americans.6 This note explores OFCCP’s legal authority, enforcement obligations, and how the agency changed under the Obama and Trump Administrations. The note focuses on changes made pursuant to Executive Order 11246 (“EO 11246”), which prohibits discrimination on the basis of race, creed, color, national origin, sex, sexual orientation, and gender identity, but not disability or status as a protected veteran (both of which are addressed in different statutes). The note proceeds in five parts. Part I provides an overview of federal contractors and the Office of Federal Contract Compliance Programs. Part II discusses changes made under the Obama Administration, while part III reviews changes made under the Trump Administration. Part IV discusses the legal opportunities and challenges for civil rights advocates posed by changes made under both Administrations. Part V concludes with a discussion of how OFCCP can update its policies and procedures to more effectively address explicit and systemic discrimination in the federal contracting workforce. I. THE OFFICE OF FEDERAL
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