by Harold M. Busch, Vice President - Government Relations - DCI Consulting
For those that don’t know me, I am a retired Member of the Senior Executive Service of the federal government, where I served as the Acting Director and Deputy Director of OFCCP and as the National Director of Operations and Acting Regional Director of OFCCP from 1995-2005. I was asked to provide my general reactions to the House subcommittee hearings on OFCCP held April 18, 2012. In watching the hearings unfold, I couldn’t help but think about a similar Congressional hearing on OFCCP that occurred in 1996. I was with the agency during this hearing and actually participated in it.
First, I want to focus on the April 2012 hearing. This hearing was attended by seven subcommittee members, including the Chair of the subcommittee Congressmen Roe (R), one other Republican member and five Democrat members. Four witnesses testified; one witness supported the OFCCP and the other 3 were critical of the Agency, focusing on recent proposed regulations. Interestingly, OFCCP was not invited to participate in the hearing and therefore did not testify or answer questions. In fact, from what I can tell, no one from the agency was even there. This was very different from what happened in 1996; more on that later. Each of the witnesses had 5 minutes to testify, and then each of the subcommittee members were given time to ask questions about the testimony.
In reviewing the webcast and Blog on the hearing, it is apparent the Subcommittee member attendance was poor. In fact, the “OFCCP friendly” members clearly outnumbered those critical or opposing the Agency's proposed regulations or enforcement objectives. It became obvious that the spirit behind the proposed regulations under scrutiny (e.g., strengthening EEO/AA for protected veterans and persons with disabilities) is something that even Republicans and Democrats can agree on. What is up for debate are the specific proposals under review, but evaluating those takes an enormous amount of time and effort. Based on subcommittee member attendance and representation, OFCCP enforcement and proposed regulations do not appear to be very controversial.
It is interesting to compare the 2012 hearing to the subcommittee hearing in 1996. That hearing was well attended by almost all of the subcommittee members. What is also interesting is that the 1996 hearing was orchestrated and organized by Congressmen McConnell and Fawell, and was advertised as a broad referendum on both Affirmative Action and OFCCP. Subcommittee members from the Democratic Party attended to defend the agency, witnesses on both sides testified and the Agency gave testimony and answered questions as well.
The atmosphere in 1996 was far from cordial. During this hearing the agency was attacked on several fronts both by the Republican subcommittee members as well as a former director of the Agency. This hearing was well-publicized and well attended. The purpose of the meeting in the eyes of the Republican subcommittee members was to challenge (1) the existence and purpose of the Agency, (2) its operating procedures and quality of OFCCP performance, (3) proposed rulemaking prior to their issuance and (4) affirmative action in general.
Congressmen Fawell and McConnell were in the process of recommending action to either eliminate the Agency, consolidate it with EEOC or make it an "educational compliance assistance Agency” with no enforcement powers. OFCCP attended the hearing to defend its very existence and proposed new initiatives to fight systemic discrimination in pay.
It was telling that the 2012 hearing was better attended by Democratic subcommittee members who were very supportive of OFCCP. The topics discussed were also "safe" areas regarding Veterans and Individuals with Disabilities. Both the democratic subcommittee members and the witness from the Women's Law Center focused on reestablishing the importance of EEO and AA, regardless of what burden record keeping, audits or reporting may impose.
The employment and political atmosphere surrounding the different time periods is important to mention. In 1996, returning Veterans had one of the lowest unemployment rates of any of the protected groups and the economy was in the midst of an upswing. Obviously current economic conditions are very different. However, an interesting similarity may be drawn between the two time periods in regard to anti-affirmative action issues. In 1996 there was a movement not only by the McConnell-Fawell Group but in many states throughout the country. For example, states like California, Florida and others were pushing agendas and referendums to repeal affirmative action and anti-discrimination statues. In 2012, it is my opinion that the Tea Party political leaders and supporters reflect a similar sentiment. Yet the economic conditions of today push the controversy to the specific burdens of proposed regulatory change instead of toward broader philosophical issues. It is also worth noting that President Obama is a Democrat who has prioritized EEO issues.
I think the above factors played a role in the fact that no one at the hearing argued to get rid of OFCCP or affirmative action. Witnesses Norris, Bottenfield and Horvitz mainly criticized the cost and burden that the Agency imposed on contractors. In 1996 the Agency was under attack due to fear that it was going to "raise the bar" and become more aggressive and enforcement-oriented. Initiatives like pay equity enforcement, electronic recordkeeping, systemic discrimination guidance, electronic reporting of EEO and desk audit results all were being discussed by the Agency in 1996. Obviously OFCCP survived the 1996 hearings in spite of the controversy, and many of the above initiatives were eventually implemented, although some were dismantled during the Bush administration.
The 1996 hearing was heated. The 2012 hearing was not. For this reason I think the 2012 hearing is not a major event in OFCCP history. Will there be further hearings in 2012? I don’t think so. The first hearing did not seem to gain momentum or stir controversy in the subcommittee.
Where does OFCCP go from here? If Obama is re-elected in November, clearly OFCCP will continue to go in the direction it has been moving toward over the last two years. The agency may possibly even become more aggressive. More regulatory change, new initiatives and increased focus on discrimination in pay are likely to happen. The number of new regulations that are implemented may equal what was accomplished under President Clinton in the late 1990s.
Obviously, if Obama is not re-elected the same scenario that occurred when Bush took office after Clinton could occur. A Republican Administration may attempt to dismantle OFCCP or at least put the agency in a holding pattern. President Bush had an advantage in slowing the agency down; the Secretary of Labor (Chao) was the wife of Congressman Mitch McConnell. The two of them were both strong critics of OFCCP and affirmative action. As soon as Secretary Chao took charge of the Agency, she stated that the “wage gap” found between men and women "was not the result of discrimination". For this reason, there was little enforcement of pay equity under the Bush administration. In addition, the Agency stopped publicly using the term “affirmative action” and instead used the phrase "equal opportunity efforts." Obviously the election will be a critical event in OFCCP history in 2013 and beyond….stay tuned.