What Hillary and Donald Think About Affirmative Action and Non-Discrimination (Part 2 of 4)

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What Hillary and Donald Think About Affirmative Action and Non-Discrimination (Part 2 of 4)

This is the second blog post in a 4-part series (read part 1 here) highlighting how Hillary Clinton and Donald Trump think about Affirmative Action and Non-Discrimination.

The Democratic and Republican Party Platforms: What the candidates say and believe about Affirmative Action and Non-Discrimination is not the end of the story. Rather, each political party will eventually formally adopt and unveil at their respective conventions (and usually just prior to their conventions), the candidate’s formal position on many issues of concern to the American People. Affirmative Action and Non-Discrimination, happily, are topics which almost always make the list of important issues of the day about which voters want to hear the candidates take a position.

The Republican Convention will go forward first from July 18-21, 2016 in Cleveland. It is not an accident that Republicans will be in the “Rust Belt” amid hundreds of thousands of laid off and under-employed blue-collar anti-free-trade Democrats.

The Democrats will convene their convention the next week in Philadelphia from July 25-28, 2016. Party platform “planks” (as the parties call them) emerge from the respective parties over a period of months, but are finalized and formally adopted at the Party Conventions. Fearless prediction: You can expect to read the full party planks as to Affirmative Action and Non-Discrimination, I suspect, by early summer and become informed about the initial (and likely final) positions of each candidate (again, subject to formal adoption of the party plank at the convention).

CAMPAIGN SPEECHES: In addition to party planks, the candidates will give many (perhaps too many?) campaign speeches, some of which may either directly address or more likely give you only a general sense of their position on topics of interest to Affirmative Action professionals. Unfortunately, campaign speech writers consciously draft language that is broad and vague to capture as much of a following as possible but without locking the candidate down to specific promises and statements. Often, the speech writers create only a “sense” and let the reader fill in information the voter imagines s/he would like to hear the candidate say. (Campaign speeches, if you listen, typically carefully sound only broad enthusiastic themes and ultimately say very little in fact. Rather, campaign speeches create illusions and leave the audience with only a general sense of direction absent a determined reporter trying to nail the candidate down.

But things happen, especially in the Trump campaign as we have seen as Mr. Trump routinely goes “off message” and candidly answers questions from voters and media.)

In addition, debates and media questions may provide opportunities to obtain further insight into the thinking of each candidate on questions of interest to OFCCP professionals, including:

support of and specific programs to enhance “affirmative action” for minorities and women;

-affirmative action, non-discrimination and employment of individuals with disabilities;

-affirmative action, non-discrimination and employment of Protected Veterans.

preferences in employment (every political administration since the Nixon Administration created in 1972 employment “goals” for federal contractors (which OFCCP Director Shirley Wilcher (Clinton Administration) retitled as “Placement Goals”) have rejected outright employment “preferences and quotas”). See 41 CFR Section 60-2.16 (e) which reads:

e) In establishing placement goals, the following principles also apply:

(1) Placement goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.

(2) In all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex, sexual orientation, gender identity, or national origin.

(3) Placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.

(4) Placement goals may not be used to supersede merit selection principles. Affirmative programs prescribed by the regulations in this part do not require a contractor to hire a person who lacks qualifications to perform the job successfully, or hire a less qualified person in preference to a more qualified one.

I also have a collection of letters from each OFCCP Director since 1972 rejecting the suggestion that OFCCP’s “goals” program requires contractors to engage in unlawful “quota” or race and gender “preferential” employment policies and practices—even in those circumstances where the contractor must set a “goal;”

CLINTON ON THE STUMP: Hillary Clinton has jumped out early and in front, of course, with a general campaign theme which seeks to attract women to vote for her based on the alleged “pay gap” in America allegedly foisted on the country by employers.

TRUMP ON THE STUMP: Donald Trump has jumped out early and in front, of course, with a campaign theme to attract veterans to vote for him by boycotting the Republican January 28, 2016 debate in Des Moines by hosting a counter-fundraiser that same night at Drake University which he reports raised almost $6M for veterans.

And, of course, Mr. Trump “stepped on a rake” by physically mocking, on nationwide TV, New York Times news reporter Serge Kovaleski who struggled to ask Mr. Trump a question before the South Carolina primary. (Mr. Kovaleski is afflicted with a chronic disorder known as “arthrogrposis” which causes a lack of physical control and/or movement of the joints in one’s arms and/or legs). Almost all persons who viewed Mr. Trump’s mocking of Mr. Kovaleski thought it highly disrespectful of Mr. Kovaleski and also more generally of individuals with disabilities. I mention this incident because there is a tradition of candidates in the past “stepping on rakes,” realizing their mistake in response to hostile letters from voters, and turning a corner to now champion the issue they had earlier opposed. Affirmative Action managers will have to see if Mr. Trump “got religion” as to disability issues following the firestorm which ensued after the very unfortunate Kovaleski incident.

Part 3 will be published Thursday!

About the Author

John C. FoxJohn C. Fox, Esq. is President and Senior Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the four wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide.View all posts by John C. Fox »