OFCCP Week In Review: October 2, 2023

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee J. Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

• White House OMB Sent Agencies New Policy Guidance on “Delivering a Digital-First Public Experience”
• DE Talk Podcast Discussed Helping Individuals Who Are Blind Find Their Spot in the Workplace
• Amid Ongoing Court Challenges, US DOL Published 2024 Minimum Wages for Federal Contractors
• U.S. EEOC Tries Again with Proposal to Update Workplace Harassment Guidance
• U.S. EEOC Announced Year-End Litigation Round-Up for Fiscal Year 2023
• In Brief
• New Publications
• Looking Ahead: Upcoming Date Reminders

Friday, September 22, 2023: White House OMB Sent Agencies New Policy Guidance on “Delivering a Digital-First Public Experience”

Guidance Focuses on Shared Technology, Standards, & Integrated User Experience

Agencies Need to Improve Website Accessibility

“Currently, only two percent of government forms are digitized, 45 percent of websites have not been designed to work on mobile devices, and 60 percent of websites are not fully usable by those who use assistive technologies,” Federal Chief Information Officer Clare Martorana pointed out in a blog post to correspond with the release of new policy guidance to agencies on “Delivering a Digital-First Public Experience” (OMB M-23-22). The guidance summarizes relevant statutory requirements, clarifies policy requirements, and expands best practices for agency websites and digital services.

Office of Management and Budget (“OMB”) Director Shalanda D. Young wrote the 32-page memo which is designed to assist agencies as they continue to implement the 21st Century Integrated Digital Experience Act (“21st Century IDEA”). The 21st Century IDEA requires all executive branch agencies to:

• Modernize their websites;
• Digitize services and forms;
• Accelerate the use of e-signatures;
• Improve customer experience; and
• Standardize and transition to centralized shared services.

A supplemental White House “Fact Sheet” notes that 80 percent of federal websites do not use U.S. Web Design System code, and “many government forms and services still require paper processes, which add burden and a ‘time tax’ on the public, as well as on the Federal workforce who serves the public.” Therefore, the federal government is “building the shared technology infrastructure and standards needed for agencies to provide a more integrated online experience as users move across agencies, services, and channels to interact with government.” The fact sheet outlines the “key pillars” of its efforts which are:

• Analytics,
• Accessibility,
• Brand,
• Content,
• Design,
• Search, and
• Digitization. 

Monday, September 25, 2023: DE Talk Podcast Discussed Helping Individuals Who Are Blind Find Their Spot in the Workplace

As most readers are aware, the unemployment rate for individuals with disabilities is about double that of non-disabled workers – but if you dig deeper, you’ll find that the unemployment rate for those with low vision or blindness is 70 percent! With over 20 million Americans who are blind or visually impaired, it’s clear that much work remains to help them find their rightful place in the workforce. In this episode, we sit down with Jeff Mittman and Brandon Wells of Bosma Enterprises and its Visionary Opportunities Foundation, an Indiana-based organization providing solutions and creating opportunities for those who are blind or visually impaired, to discuss the barriers to employment these individuals face and the common myths and misconceptions that prevent them from being hired. They also share advice for employers to help attract blind or low-vision individuals and what they can do to accommodate these employees to help them succeed in the workplace.

Click here to listen now!

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Thursday, September 28, 2023: Amid Ongoing Court Challenges, US DOL Published 2024 Minimum Wages for Federal Contractors

Court Order on Tuesday Blocked These Requirements in Three States

With two court challenges pending, the U.S. Department of Labor’s (“US DOL”) Wage and Hour Division (“WHD”) published two documents (here and here) in the Federal Register announcing rate changes to the minimum wage for federal contracts, both scheduled to take effect on January 1, 2024:

• The minimum wage for federal contracts covered by Executive Order (“EO”) 13658 (“Establishing a Minimum Wage for Contractors”)(contracts entered into, renewed, or extended prior to January 30, 2022), will increase to $12.90 per hour, and the minimum cash wage for tipped employees increases to $9.05 per hour
• The minimum wage for federal contractors covered by EO 14026 (“Increasing the Minimum Wage for Federal Contractors”)(contracts entered into on or after January 30, 2022, or that are renewed or extended on or after January 30, 2022), will increase to $17.20 per hour, and this minimum wage rate will apply to non-tipped and tipped employees alike.

District Court Order Blocked Enforcement of Wage Requirements in Three States

On the landing page regarding the WHD’s regulations to enforce EO 14026, the agency posted a box with the following notice:

“Based on an order issued by the U.S. District Court for the Southern District of Texas on September 26, 2023, the minimum wage requirements of the final rule implementing Executive Order 14026 are not currently being enforced as to contracts or subcontracts to which the states of Texas, Louisiana, or Mississippi (including their agencies) are a party.”

In that ruling, U.S. District Judge Drew B. Tipton in Victoria, Texas, concluded that President Biden exceeded his constitutional authority in issuing EO 14026 and this EO also violated the federal Procurement Act. However, the judge halted his decision for seven days to allow the US DOL to appeal to the U.S. Court of Appeals for the Fifth Circuit (which has jurisdiction over the states of Texas, Louisiana, or Mississippi).

Tenth Circuit Court of Appeals Temporary Injunction Limited to Seasonal Recreation Services & Equipment Rental

Both of Tuesday’s Federal Register notices as well as the WHD’s landing page on the regulations to enforce EO 14026 note that, based on an order issued by the U.S. Court of Appeals for the Tenth Circuit on February 17, 2022, the WHD is not currently enforcing the minimum wage requirements as to “contracts or contract-like instruments entered into with the federal government in connection with seasonal recreational services or seasonal recreational equipment rental for the general public on federal lands.” (See our story discussing that ruling here.) The Tenth Circuit’s February 17, 2022, ruling was only an injunction pending the appellate court’s final ruling on the merits of the case which is still forthcoming.

However, the higher minimum wage requirements remain in effect for all other contracts subject to the rule.

How We Got Here

On November 24, 2021, the WHD published a Final Rule on regulations to implement EO 14026, which President Biden issued on April 27, 2021. (See our story here detailing EO 14026 and explaining how to parse which employees are entitled to the higher minimum wage.)

Friday, September 29, 2023: U.S. EEOC Tries Again with Proposal to Update Workplace Harassment Guidance

In its second attempt since 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) unveiled a proposal to update its “Enforcement Guidance on Harassment in the Workplace.” Announced via a press release on Friday, the agency also published on Monday, October 2, a Federal Register notice requesting public comment. You may submit comments here on or before Wednesday, November 1, 2023.

The newly proposed update explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. It provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment. 

The EEOC sent the proposal for White House Office of Management and Budget (“OMB”) review on August 25, 2023, and the OMB concluded its review on September 27.

The Commission’s current guidance, issued on May 1, 1987, is here. These guidelines in their current form as well as the proposed update, if finalized, do/will not have the binding legal force and effect of law.

Scope of Harassment Covered

The proposed guidance points out:

“Although many high-profile harassment cases involve harassment based on sex, race, or national origin, the EEOC also enforces laws prohibiting work-related harassment based on color, religion, disability, genetic information, and age (40 or over).”

Moreover, the proposal provides that sex-based harassment also includes harassment based on:

• pregnancy, childbirth, or related medical conditions, including lactation. This includes harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion; and
• sexual orientation and gender identity, including how that identity is expressed. 

Balancing Anti-Harassment & Accommodation Obligations with Respect to Religious Expression

The proposed guidance states [at Section IV(C)(3)(b)(ii)(b), Item (7)]:

“Special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression: Title VII requires that employers accommodate employees’ sincerely held religious beliefs, practices, and observances in the absence of undue hardship. Employers, however, also have a duty to protect workers against religiously motivated harassment. Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment. As with other forms of harassment, an employer should take corrective action before the conduct becomes sufficiently severe or pervasive to create a hostile work environment.” [citations omitted]

Previous Revision Attempt

Friday’s press release on the new proposal notes:

“The EEOC first released a proposed guidance on workplace harassment for public comment in 2017, but it was not finalized. The updated proposed guidance reflects notable changes in law, including the Supreme Court’s [2020] decision in Bostock v. Clayton County [140 S. Ct. 1731], the #MeToo movement, and emerging issues, such as virtual or online harassment.”

The EEOC’s January 9, 2017, proposal is available here, and the corresponding press statement is here.

Commission Apparently Voted Along Party Lines

The EEOC’s press release merely states that the new proposal was posted “[f]ollowing a majority vote” of the bipartisan Commission but does not disclose how each of the five Commissioners voted. However, Law360 reported on Friday [subscription required] that EEOC spokesperson Victor Chen told them that “the blueprint was approved by a 3-2 vote of the commissioners,” but Chen did not clarify how each Commissioner voted. As Kalpana Kotagal became the third Democrat on the five-member bipartisan Commission in mid-August, it would appear that the vote was along party lines.

An unnamed “EEOC spokesperson” also told Law360 that “[t]his new guidance is the first voted document the EEOC has issued on harassment since its ‘Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors’ in 1999.” 

Notably, one year ago a federal district court in Texas issued a nationwide injunction that vacated and set aside other sub-regulatory “guidance” documents that the EEOC published on June 15, 2021. In our story on that injunction, we pointed out that the guidance documents at issue “seamlessly address[ed] policy issues that went beyond the holding of the SCOTUS’ Bostock case decision” and “addressed and resolved sensitive and controversial issues not even before the Bostock Court for decision.”

Friday, September 29, 2023: U.S. EEOC Announced Year-End Litigation Round-Up for Fiscal Year 2023

Commission Touted Significant Increases in its Litigation Filings, Including Systemic Cases

Long past business hours on Friday (at 9:19 PM EDT), the U.S. Equal Employment Opportunity Commission (“EEOC”) sent out an email announcing its Year-End Litigation Round-Up for Fiscal Year (“FY”) 2023. [The announcement was not posted on the EEOC website until Saturday morning.]

The agency stated that, according to preliminary data, it filed 143 new employment discrimination lawsuits in FY 2023, representing more than a 50 percent increase over fiscal year 2022 suit filings. The FY 2023 suit filings include 25 systemic lawsuits, which is almost double the number filed in each of the past three FYs and the largest number of systemic filings in the past five years. Also, the agency filed 32 non-systemic class suits seeking relief for multiple harmed parties and 86 suits seeking relief for individuals. 

As of our WIR press deadline, the statistics and other numbers mentioned in Friday’s email were not yet posted on the EEOC’s website.

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.