To Merge or Not to Merge:  Is That the Question?
To Merge or Not to Merge: Is That the Question?
The White House has proposed merging the Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC), purportedly to reduce redundancies in civil rights enforcement. Some prominent members of the federal contracting compliance community think the proposal is DOA (Dead On Arrival) due to opposition from the civil rights community, federal contractor coalitions, and key individuals. But this proposal may go forward anyway. In fact, OFCCP is already starting to plan for it – just in case.

There is some speculation that the proposal originated with the Heritage Foundation, an organization that does not have a history of supporting civil rights. Thus, the question is not merely whether or not to merge the agencies, but whether OFCCP’s regulations should be retained at all. This is not the first time a proposal to weaken or eliminate OFCCP has been put forward.

Shirley J. Wilcher, Executive Director of the American Association for Access, Equity and Diversity (AAAED), worked on Capitol Hill in the 1980s and was the head of OFCCP when Republicans in Congress tried to eliminate the agency in the 1990s. She was appointed by President Clinton in 1994 and served throughout both terms, until 2001. I had the opportunity to interview Ms. Wilcher regarding her tenure at OFCCP, in light of the recent proposal.

What are the most significant differences between the EEOC and OFCCP?

Shirley Wilcher: Unlike the EEOC, the OFCCP’s primary compliance focus is systemic. OFCCP looks to promote equal employment opportunity from the hiring process and compensation practices to the executive suite. While it may receive complaints of discrimination, pursuant to a Memorandum of Understanding with the EEOC, most individual complaints are forwarded to the EEOC for processing. Most importantly, the OFCCP does not have to have a complaint in order to conduct a compliance review. The burden under EO 11246 and related laws is on the government to ensure that no federal dollars are used for discriminatory purposes. Under Title VII of the Civil Rights Act, the burden of compliance is primarily on the complainant, with all of the costs and consequences to one’s self and one’s career that such an effort entails.

While both the EEOC and the OFCCP may provide make-whole relief to a victim of discrimination, only the OFCCP may debar a company or academic institution from obtaining contracts. Moreover, OFCCP fundamentally represents the interests of the United States Government. There is no private right of action and no “right to sue” letter, as the EEOC provides.

What would a merger of OFCCP and EEOC look like?

Shirley Wilcher: The proposed merger would result in a substantial reduction in resources and staffing. Any merger of the two agencies would have to include not only the staff and offices of the OFCCP, both in the national office and the regional and district offices, but also the civil rights legal staff of the Office of the Solicitor, both in Washington, D.C. and nationwide. Moreover, the OFCCP has six regions and offices from Boston to Honolulu and the Solicitor’s Office also has staff throughout the country. In addition, the Administrative Review Board may require transfer of staffing and resources. This is, therefore, not an inconsequential proposal, but would upend an entire administrative structure that the EEOC, underfunded and understaffed, could not easily absorb. This proposal, therefore, is the antithesis of efficiency.

When the contract compliance programs were consolidated into the Department of Labor, we understand that the program maintained a total of approximately 1,800 Full-time Equivalents (FTEs). In the late 1990s, the agency had approximately 800 FTEs. Today, it has approximately 600 FTEs to cover nearly one-quarter of the civilian labor force. It is axiomatic that a transfer of the OFCCP to the EEOC would result in deeper reductions in staffing and resources. This will result in fewer compliance reviews and less equal employment opportunity. Moreover, this transfer would require substantial training of the EEOC staff who are unfamiliar with the OFCCP compliance process, the affirmative action program regulations, and the laws that EEOC does not currently enforce, including the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and the sexual orientation and gender identity provisions of Executive Order 11246.

What proposal was floated when you were on Capitol Hill and later as the Director of OFCCP, and how is this one different?

Shirley Wilcher: In the 1980s, there were attempts by members of the Reagan Administration to end affirmative action by eviscerating Executive Order 11246. The order was saved when members of the federal contractor community, along with Members of Congress of both parties and civil rights groups, rallied in support of leaving it unchanged. In the 1990s, after the Adarand v. Pena decision led to a comprehensive review of federal affirmative action programs, President Clinton, speaking at the National Archives, declared his support for affirmative action in his “Mend it; Don’t End it” speech. At this comprehensive review, during which members of the public expressed their opinion, including San Francisco Mayor Willie Brown, who spoke eloquently in support of affirmative action, it was decided that Executive Order 11246 and its regulations did not require quotas but required outreach and recruitment goals to diversify the pool from which qualified individuals could be selected. Once again, the Order was saved. Moreover, in 1994, when the Republicans took control of the House of Representatives, we had to once again defend affirmative action in the face of intense criticism. It was then that we reminded Congress that employment discrimination was alive and well and that we needed the laws enforced by OFCCP to promote equal opportunity and prevent discrimination.

Do you think this proposal to merge the two agencies was put forward to weaken OFCCP?

Shirley Wilcher: Absolutely. When allowed to work, the OFCCP can be a most effective tool in eliminating systemic discrimination and promoting diversity in the workplace. Relying on the EEOC places the burden of ending discrimination on individual complainants. As a result, it would take generations to end job discrimination in the American workplace.

What advice do you have for people and/or organizations who want to oppose the merger proposal?

Shirley Wilcher: Call your Representative and Senator now. The final decision will be made by Congress as it decides on the agencies’ budgets.

Any final thoughts?

Shirley Wilcher: An agency that enforces the contractual obligations of the federal government should not be relocated into a semi-independent entity. Moreover, while sharing the goal of equal employment opportunity, the similarity of the two agencies’ missions and enforcement processes ends there. The OFCCP’s focus is systemic discrimination; the EEOC’s is primarily individual. The former agency shoulders the burden of enforcing equal employment opportunity laws and policies on behalf of the federal government’s contracting authority; for the latter, the burden is on the complainant to seek redress. Lastly, the OFCCP seeks “positive nondiscrimination,” to cite the recommendation of Vice President Nixon and his Committee on Government Contracts. The EEOC must, with a few exceptions, wait until a complaint is filed to seek relief from acts of discrimination.

To remove the federal government’s only tool to promote the nation’s longstanding policy of nondiscrimination in employment where federal dollars are involved would not only be inefficient, it would be unconscionable. Moreover, the thousands of discrimination complaints filed annually with the EEOC call for a more systemic tool than EEOC can provide. They call for the OFCCP and its ancillary agencies - the Office of the Solicitor and the Administrative Review Board, to remain undisturbed and undiminished, in the Department of Labor.

Founded in 1974 as the American Association for Affirmative Action, the AAAED is a national not-for-profit association of professionals working in the areas of affirmative action, equal opportunity, and diversity.