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

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

This is the final blog post in a 4-part series (read part 1, 2 and 3) highlighting how Hillary Clinton and Donald Trump think about Affirmative Action and Non-Discrimination.

THE NEXT OFCCP DIRECTOR WILL HEAVILY INFLUENCE THE DIRECTION OF MARCH WITHIN THE NEXT OFCCP: The detail about what the next Administration specifically will do, or not do, or will emphasize/de-emphasize, will not come through generalized political party platform planks. Rather, the specifics will come through the OFCCP Director the next Secretary of Labor will appoint to serve him or her. The process to name a new OFCCP director starts the day after the Presidential election when something called the “Presidential Transition Team” (“PTT”) suddenly leaps up and springs immediately into action. The PTT is a specially selected team of agency-specific experts the incoming Presidential team has hand selected to help transition the new President into the federal Executive Branch of government and be ready to go at 12:01 pm on January 20th. The peaceful, orderly and routine transfer of power we have made famous throughout the world is amazing to observe. PTT members are unpaid volunteers and party faithful (and typically zealot) followers of the incoming President who have worked in his/her campaign. By tradition (not law, as yet another example of our country’s dedication to violence-free transitions of power), the outgoing lame-duck President allows the incoming President-Elect to insert immediately (the day after the election) the President-Elect’s PTT into each and every one of the federal agencies.

By tradition, the incoming PTT has access to all federal agency offices and books and records, other than Top Secret (or better) security files which require special security clearances. (It will take the FBI months to undertake the needed thorough background checks to eventually qualify all of the incoming President’s approximately 3,000 political appointees security clearances. That is true even though the Bureau starts the process the day after the election and diverts hundreds of Special Agents to this gargantuan, but important, periodic task.)

Apart from cataloguing all pending regulatory, administrative and court actions in which each agency is engaged to determine which to stop and which to modify, the PTT also starts a personnel function to identify possible political appointees to run the federal agencies and to whom the approximately 2.5 million civilian federal civil servants will report in the civilian agencies. This is true, too, of the USDOL and its sub-component agencies, including OFCCP. Of course, the PTT starts at the top and works down from Cabinet Member positions to the lowest-level political appointee who will serve each agency head in the thousands of sub-agencies which comprise the federal Executive Branch of government.

Many PTTs have SUBSTANTIAL influence as to the precise direction of the agency’s political appointees the PTT and the agency heads select to run the federal government. They do this, when they choose to do so, in two ways: (1) who they choose to interview; (2) specific instructions the PTT might give to the new hire they have just chosen. In some cases, the agency head selects some or all of his/her subordinates. In my personal case, The White House deemed OFCCP and Affirmative Action too sensitive a topic, so it held back from the Labor Department the right to select the person to fill the position I eventually occupied. So, my interviews were at The White House, at the highest level of The White House, and were intense. I had not worked in the President’s campaign (I was trying three cases that year around the country still learning how to be a competent lawyer). I was also one of three members of the Administration who was not registered as a voter to the party in power.

Only three OFCCP Directors have thus far taken their positions with substantial knowledge of the workings of OFCCP and its Affirmative Action mission. Do you know who they were? (Ellen Shong Bergman, first term Reagan Administration and the former Affirmative Action Manager for a diversified mining company known as AMAX; Cari Dominguez, George Herbert Bush Administration (the Dad) and a former senior officer at OFCCP as a career employee; and Charles James, George W. Bush Administration (the son), who had previously been the Affirmative Action Manager for AT&T’s Mid-Atlantic states operations—and who learned his craft sitting in the back row of my Washington DC National Employment Law Institute’s Affirmative Action Briefings, year-in and year-out. I tell you that since many OFCCP Directors have come with no direction known. They just came to manage the agency. Several Directors nonetheless came with substantial discrimination law background, and had some pre-formed ideas about how to take the agency forward on the discrimination side of the house. Do you know who those were? (Shirley Wilcher, Clinton Administration, a Harvard lawyer who worked at the NAACP Legal Defense and Education Fund, Inc. – the litigating arm of the NAACP, and Pat Shiu, Obama Administration, a lawyer from San Francisco who had managed the Legal Aid Society-Employment Law Center there and had actually tried discrimination cases).

In fact, if it turns out to be a “long hot summer,” as many now fear, with several violent civil rights protests/riots, the next President, Republican or Democrat, will turn up the heat on OFCCP to produce social and employment change more quickly to help turn down civil rights unrest in America.  

 

It is interesting that Republicans have recently appointed experienced Affirmative Action practitioners and Democrats have appointed lawyers with discrimination law experience. However, the past is not prologue and the coming new Administration is free to appoint whomever it chooses. NOTE: Even if a Democrat wins the White House in 2017, Pat Shiu will undoubtedly leave OFCCP on or before January 20, 2017. No law requires that result, but incoming Presidents ALWAYS want THEIR team in place to run the federal Executive Branch of government. It was VERY unusual for me to be appointed given that I had not worked in The President’s campaign…almost always a necessary precondition for political patronage jobs in each new Administration.

So, we will all have to wait to see where the next Administration takes us in the Affirmative Action and Non-Discrimination areas as the confluence of Presidential direction, party platform, the Secretary of Labor’s direction, the PTT’s direction, and the specific views/expertise of the new OFCCP Director blend together to produce the specific direction of the coming OFCCP. However, whether it is Hillary or Donald, I think readers of this column can rest assured that Justice O’Connor’s observation that Affirmative Action was soon not going to be needed any longer will not have to worry that it is going away with the coming next President.

In fact, if it turns out to be a “long hot summer,” as many now fear, with several violent civil rights protests/riots, the next President, Republican or Democrat, will turn up the heat on OFCCP to produce social and employment change more quickly to help turn down civil rights unrest in America.

So, vendors: extend your leases, hire and train new employees and breathe easy that you have continued job security… But, be careful out there!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee at candee@directemployers.org with your ideas.

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Don’t miss Candee and John present at the DirectEmployers 2016 Annual Meeting & Conference (DEAM16), May 18-20. Agenda and registration are available on the DEAM16 website.

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 »