New OFCCP Director Urged to Train Staff

Harris likely to stop making affirmative action compliance ‘a game of gotcha’

Allen Smith, J.D. By Allen Smith, J.D. January 23, 2018
New OFCCP Director Urged to Train Staff

​The Office of Federal Contract Compliance Programs (OFCCP) has lost much of its staff recently to buyouts and departures. Training its remaining employees should be a priority for Ondray Harris, the OFCCP's new director, even though a tight budget may make that difficult, noted Cheryl Behymer, an attorney with Fisher & Phillips in Columbia, S.C.

Harris is likely to focus on agency cooperation with businesses instead of enforcing affirmative action laws, attorneys for federal contractors say. The OFCCP is responsible for enforcing the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), Section 503 of the Rehabilitation Act of 1973 and Executive Order 11246.

VEVRAA requires federal contractors to engage in affirmative action to employ veterans. Section 503 requires contractors to engage in affirmative action to hire people with disabilities. The executive order requires them to provide affirmative action for women and minorities and prohibits discrimination based on race, religion, color, sex, sexual orientation, gender identity and national origin.

[SHRM members-only toolkit: Managing Federal Contractor Affirmative Action Programs]

Before Harris took over last December, the OFCCP during 2017 conducted two rounds of buyouts to lower its labor costs, Behymer said.

The Trump administration's proposed budget for 2018 recommended $88 million for the OFCCP, $17.3 million less than the previous fiscal year, according to Government Contractor Compliance and Regulatory Update. The administration also recommended a cut in OFCCP's full-time staff from 571 to 440. The Senate Appropriations Committee last September called for $103 million for the OFCCP, still less than the previous year. The House Appropriations Committee called for $94.5 million for the agency, Employment Law Daily reported. While the House and Senate may split the difference, the budget for 2018 is not yet final.

Because the OFCCP now has fewer staff, federal contractors should expect audits and compliance reviews to move at a slower pace, Behymer predicted.

"Several well-respected managers at the district level are leaving or already have left, creating a management vacuum in some parts of the country," said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va.

With many senior managers gone, the more junior staffers who are left may not know the affirmative action regulations well, she added. "Contractor representatives are going to face frustration in their dealings with the less experienced compliance officers," she said.

Under the Obama administration, the agency expanded with the addition of 200 new compliance officers, said David Cohen, founder and president of DCI Consulting in Washington, D.C. But these officers received little training, he noted.

Cooperative Approach

Harris is a "great fit for OFCCP," Cohen said.

Horvitz agreed, saying that Harris's experience as director of the Justice Department's Community Relations Service agency will translate well in his new role.

Harris served as assistant attorney general for Virginia from 1999 to 2004 before becoming an attorney at LeClairRyan, where he defended employers from lawsuits based on Title VII of the Civil Rights Act of 1964. He later served as deputy chief of employment litigation for the Justice Department, as well as executive director of the Public Employee Relations Board. The board is an agency that resolves disputes between District of Columbia government agencies and labor organizations representing agency employees.

"He knows employment law and Title VII," Cohen said. Like E.O. 11246, Title VII prohibits discrimination against women and minorities.

Cohen predicted Harris will stop making affirmative action compliance "a game of 'gotcha.' " Under the Obama administration, the agency was run like a plaintiffs' advocacy group, Cohen stated.

Stewart Manela, an attorney with Arent Fox in Washington, D.C., also anticipated that Harris would focus more on cooperating with federal contractors rather than suing them.

Shift in Enforcement Priorities

Manela said that the suspension of the Equal Employment Opportunity Commission's (EEOC's) pay-data reporting requirement on revised EEO-1 forms may indicate that the OFCCP, which also uses EEO-1 data, will not focus as much on pay equity as the Obama administration did.

The OFCCP has focused on statistical calculations in reaching legal conclusions about pay discrimination, according to Horvitz. She hopes the agency will be more transparent about the basis for its calculations "and provide more data and information to a contractor before the federal government threatens enforcement."

Aside from pay equity, the OFCCP in recent years has scrutinized hiring and promotion opportunities for women and minorities, Manela observed, adding that "it's hard to predict" what Harris's enforcement priorities will be.

No Merger of OFCCP with EEOC

One thing that seems sure for now is that the OFCCP will not merge with the EEOC, Cohen predicted. He said the proposed merger, floated last year, was a "terrible idea" that died because of opposition by the business community and civil rights groups alike.

Businesses disliked the proposal because they feared the OFCCP would gain subpoena power if it were a branch of the EEOC and potentially could seek punitive damages, which it currently cannot.

Civil rights groups thought the proposal was a way to kill affirmative action.


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