The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
Wednesday, March 16, 2016: Senate Bill 2693, the “EEOC Reform Act” introduced by Health, Education, Labor and Pensions Committee Chair Lamar Alexander, purports to potentially halt the proposed revision of the EEO-1 report. This bill requires the EEOC to properly allocate resources by prioritizing discrimination complaints before implementing the proposed revision to the EEO-1 report. The proposed report expands the data collection from its current combination of 180 cells of data to an unprecedented 3,660 combinations of data required, which is an increase of 1,933%.
The bill cites the proposed revision of the EEO-1 report does not meet the stated purpose of the Paperwork Reduction Act. The Commission has also not provided information on how the information will be tracked, verified, compiled, protected, etc., nor how the Commission will use the information in enforcement efforts. Most importantly, the bill highlights the 76,408 charges of discrimination the EEOC currently has in place and their resolution of the fewest number of charges during fiscal years 2014 and 2015. Congress firmly believes the EEOC resources that would be focused on the EEO-1 report data collection should instead be dedicated to reducing the inventory of charges of discrimination they currently have pending.
Senate Bill 2693 requires the EEOC to essentially simulate what a private employer would have to do by collecting the same type of data from federal employees. This includes determining the number of EEOC employees, employee hours and associated cost to accomplish all the requisite tasks as well as the number of EEOC employees diverted from handling their current inventory as well as any new charges of discrimination. Once this study is completed, the EEOC would be required to calculate these same metrics for handling and collecting pay data for private employees.
This information would be published and reported annually to Congress. They would also be required to “…develop software for archiving, safely storing, maintaining, retrieving, and processing the information collected for the revised employer information report.” Once this software is developed and fully operable, a comprehensive plan with specific and detailed information on how the information will be used in enforcement efforts and how the confidentiality of the information will be maintained.
Finally, the bill proposes to require the EEOC to reduce their number of pending charges of discrimination to not more than 3,660, corresponding to the number of data points an employer would be required to provide (from their current inventory of 76,408) prior to the implementation of the revised EEO-1 report.
Thursday, March 24, 2016: Federal Employment Law Will “Preempt” North Carolina State Law Blocking Local North Carolina Laws Protecting Sexual Orientation and Gender Identity. Meeting in its first special session in 35 years, the North Carolina state Legislature last week met and (reportedly) passed in only 12 hours of discussion and debate a state law preempting all local country and city ordinances in North Carolina from protecting sexual orientation (“SO”) and gender-identity (“GI”). The new state law specifically prohibits these lesser state governments from allowing transgender individuals from entering bathrooms different from their biological sex (meaning that a transitioning transgender is now NOT PERMITTED to use the bathroom of the sex to which s/he was transitioning before surgery has occurred to convert his/her biological sex to the sex to which s/he is transitioning or else violate state law). The DE Compliance Division has received numerous inquiries asking whether federal contractors with employees working in North Carolina would have to follow OFCCP’s contrary interpretations or would have to comply with North Carolina’s new state law restrictions which now specifically do not cover SO and GI as “protected” groups under state law. The short answer is that federal law “preempts” any contrary state laws and applies federal law in place of the state laws. (Title VII preempts, for example, numerous so-called “state protective laws” still on the books (but not enforced due to preemption) which prohibit women from working a stated number of hours per day for fear that the little dears will become worn out, exhausted and unable to properly care for their children and husband). Unless federal contractors wished to force a “test case” under OFCCP’s Executive Order 11246 to cause a court to determine for the first time whether EO 11246 now properly prohibits SO and/or GI, federal contractors will have to comply with OFCCP’s Executive Order Rules which now protect SO and GI. Let’s look at both scenarios possible:
- Obedience to North Carolina State Law and disobedience of EO 11246: If a federal contractor discriminated against an employee working in North Carolina based on his/her SO and/or GI, OFCCP claims it would prosecute the contractor and seek a remedy, among other things, requiring the contractor to comply regardless of state law. Now compare:
- Obedience to EO 11246 and disobedience of North Carolina state law: There is no prosecution of the contractor possible, as we read North Carolina State law, in that the new statute merely prohibits local county and state governments (and not employers or federal contractors) from passing laws protecting SO and GI. (The state Legislature reportedly passed the new law in reaction to the City of Charlotte’s passage a month ago of a city ordinance protecting SO and GI and specifically allowing transitioning transgender individuals to use the bathrooms of their choice irrespective of their biological sex). So, nothing a federal contractor did to comply with EO 11246 would run afoul of the new state law. Rather, federal law would be providing protections where none currently exist and federal law would NOT conflict with state law, it appears. So, it is not clear that there is anything, in fact, for federal law to pre-empt. But, let’s assume the worst case (that NC state law now, in fact, properly read outlaws use of bathrooms different from one’s biological sex…as opposed to the new NC state law merely prohibiting counties and cities from allowing bathrooms to be used in such fashion) and play that through: A federal contractor with employees in NC would allow, in this scenario, a biological male transgender employee to use the women’s bathroom and a female employee would then have to file an invasion of privacy lawsuit under state law seeking both damages and an injunction to stop the employer/federal contractor from allowing this use of the female bathroom citing both common law privacy grounds and that the new NC state law does not permit such use of a bathroom. The federal contractor would defend by arguing that both causes of action are preempted by federal law and that it MUST comply with the superior and controlling federal law.
In either case, the federal contractor would win…regardless whether there is no preemption because there is no violation of state law because the new NC state law restricts only state governments and not federal contractors, or because the new state law does restrict federal contractors operating in North Carolina but contrary and superior federal law preempts the new state law.
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.
