OFCCP Week In Review: July 3, 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:

• At 11th Hour, OFCCP Made Changes to Contractor Portal FAQ
• U.S. Census Bureau Reported Sharp Drop in On-Site/In-Person Work Between 2019 & 2021
• One Day After PWFA Took Effect, EEOC Submitted Proposed Regulations for OMB Review
• U.S. EEOC Discreetly Announced EEO-1 Reporting Tentative Starting Date Pushed Back to Fall 2023
• SCOTUS Ends Its 45-Year Detour Around The Equal Protection Clause By Now Finding “Race-Based” Admissions Practices At Harvard and UNC Unlawful
• The Four “Elevator Speeches” Federal Contractor Compliance Managers and AAP Vendors Now Need Post Harvard/UNC
• Three Justices Square Off in the Harvard/UNC Case Decision Over the Accuracy of OMB Directive 15 Defining Race and National Origin in America
• Employers Must Grant Religious Accommodations Absent Substantial Increased Costs, Unanimous U.S. Supreme Court Ruled
• Looking Ahead: Upcoming Date Reminders

Tuesday, June 27, 2023: At 11th Hour, OFCCP Made Changes to Contractor Portal FAQ

Update Made Two Days Prior to Certification Deadline

Thursday, June 29 “Deadline” Not Extended

Adding to the existing confusion/frustrations regarding OFCCP contractor portals, the agency quietly updated a portion of its FAQ regarding its online Supply & Service Contractor Portal for federal contractors and subcontractors to certify that they have developed and maintained affirmative action programs (“AAPs”) for each establishment or functional unit. OFCCP failed to make any public announcement of the change, rather it merely changed the “last updated” date at the bottom of the FAQ section to June 27, 2023. It further neglected to identify precisely what portion of the FAQ section the agency updated.

Moreover, because the change in question affects federal contractors and not OFCCP’s internal operating procedures and OFCCP did not make the below described change via proper Rulemaking pursuant to the Administrative Procedure Act, complete with formal Federal Register Notice to the Public and further inviting public Comment, these Portal changes, like the obligation to certify in the Portal at all, is more likely than not unenforceable.

Apparently, the update is to FAQ #11 under the “REGISTRATION” section regarding establishments without an EEO-1 identifier. This FAQ item now reads as follows:

“11. I am a federal contractor who has registered the Parent Company in the Contractor Portal and need to add an establishment for which I do not yet have an EEO-1 identifier. How can I add this establishment?

The Contractor Portal was designed to use each establishment’s EEO-1 identifier for registration. Contractors who wish to add an establishment for which they have not yet been issued an EEO-1 identifier should contact the OFCCP Technical Support Service Helpdesk at 1-800-397-6251. Callers should press 1 for English or 2 for Spanish, then press 1 to reach technical support for assistance with assigning a temporary identifier for the establishment and assist with adding the establishment to the Portal.”

Previously, OFCCP stated that a contractor lacking an EEO-1 identification number for a given establishment should generally “wait until it is required to file an EEO-1 report and receive an EEO-1 identifier to register for the [P]ortal.” Thus, contractors who registered with the Portal prior to June 27 may have omitted establishments without an EEO-1 identifier.

How We Got Here

We reported previously that on August 31, 2021, OFCCP received approval (from the Office of Management and Budget) for the Contractor Portal information collection under the Paperwork Reduction Act. However, we also explained that OFCCP does not have regulatory authority under the Administrative Procedure Act for the Contractor Portal.

On Monday, January 20, 2023, OFCCP announced that it would open the online Supply & Service Contractor Portal for this year’s reporting, asserting a certification deadline of Thursday, June 29, 2023. As noted above, OFCCP does not have regulatory authority to enforce this deadline. However, as we reported in January when OFCCP published its latest Corporate Scheduling Announcement List (CSAL) for Supply & Service contractors, the agency also published a “methodology” memorandum explaining that it targeted contractors the agency believed were required to maintain AAPs but that did not complete their assertedly “mandatory” annual certification in the OFCCP Contractor Portal as of December 1, 2022.

Email Bulletin Maintained That OFCCP Would Not Extend “Deadline”

On Friday, June 30, OFCCP sent an email bulletin to subscribing stakeholders stating that it had not extended this year’s June 29 asserted “deadline,” but “[c]ontractors that have not yet registered and certified compliance with their AAP obligations should do so as soon as possible.” In addition, the email said, “OFCCP will consider a contractor’s registration and/or certification timely if the contractor has a pending request for assistance as of June 29, 2023.”

The agency also noted that the “Contractor Portal Technical Help Desk remains open and available to answer questions about the Portal and provide assistance,” and that the Help Desk “is currently addressing open help desk tickets.”

Tuesday, June 27, 2023: U.S. Census Bureau Reported Sharp Drop in On-Site/In-Person Work Between 2019 & 2021

Hybrid Work Also Increased Somewhat

But onsite work still remains the most popular option at almost 75%

The share of U.S. jobs worked on-site dropped roughly 10 percentage points from 84 percent in 2019 to 74 percent in 2021, the first full year of the Covid-19 pandemic, the U.S. Census Bureau announced, citing its Survey of Income and Program Participation (“SIPP”). The 2019-2021 SIPP Home-Based Workers Table Package provides substantial new detail on how home-based work has changed over the past few years, the Bureau noted.

Jobs worked some days on-site and other days from home (“mixed” or “hybrid work”) represented the smallest share of all jobs worked each year but increased from around 4 percent in 2020 to 6 percent in 2021. Meanwhile, the share of jobs done exclusively from home (“fully home-based jobs”) roughly doubled from 11 percent of all jobs in 2019 to 23 percent in 2020, before declining to about 21 percent in 2021.

The following chart from the SIPP further illustrates the above numbers:

Significantly Larger Percentage of On-Site Jobs Deemed “Essential”

The category of essential worker was created by the Department of Homeland Security (“DHS”) to characterize workers employed in occupations considered vital to the continued operation of the economy during the COVID-19 pandemic, the Census Bureau explained. According to DHS methodology, around 7 in 10 jobs overall were deemed essential in each survey year.

DHS considered a significantly larger percentage of on-site jobs (compared to mixed and fully home-based jobs) as essential in 2019 through 2021. By 2021, roughly 75 percent of on-site jobs were classified as essential, compared to about 60 percent of hybrid and 61 percent of fully home-based jobs.

Work Schedule & Industry/Occupation Highlights

Other highlights of the SIPP table package included:

(1) Work Schedule:

• Workers with mixed schedules were more likely to work from home at the start or end of the work week. For this set of workers, the most common days to work from home in 2021 were Fridays (53 percent) and Mondays (50 percent).
• The share of mixed jobs with a standard, predictable schedule increased from 81 percent in 2019 to 84 percent in 2021. And among jobs that allowed working fully from home, the share that offered a standard, predictable schedule went from 66 percent in 2019 to about 77 percent in 2021. The percentage of on-site jobs offering a standard, predictable work schedule decreased from 73 percent in 2019 to 71 percent in 2021.

(2) Industry and Occupation:

• The share of jobs in finance and insurance, real estate and rental, and leasing industries that were conducted on-site dropped from 67 percent in 2019 to 43 percent in 2021.
• The percentage of on-site public administration jobs declined from 86 percent in 2019 to 67 percent in 2021.
• Computer and mathematical occupations had a noticeable shift from the majority of jobs worked on-site in 2019 (60 percent) to a majority not worked on-site in 2020 (32 percent) and 2021 (30 percent).
• The material moving occupations, which include jobs that often must be performed on-site such as stocker and order fillers, hand packers and packagers, and industrial truck and tractor operators, had relatively low percentages of home-based jobs: 97 percent of jobs were on-site in 2019 and 2020, and 96 percent in 2021.

Earlier Report Broke Down Racial/Ethnic Group Work-from-Homs Statistics

Back in April, we discussed a similar U.S. Census Bureau report which found that substantially more people in all race/ethnic groups worked from home between 2019-2021. While white & higher-income workers were most prevalent among home-based workers, minorities made the biggest percentage gains in the transition to remote work, the report concluded.

Wednesday, June 28, 2023: One Day After PWFA Took Effect, EEOC Submitted Proposed Regulations for OMB Review

EEOC Also Updated Workplace Poster & Started Accepting Charges

The day after the “Pregnant Workers Fairness Act” (“PWFA”) took effect, the U.S. Equal Employment Opportunity Commission (“EEOC”) submitted its proposed regulations to implement the new statute to the White House Office of Management and Budget (“OMB”) for review. The EEOC will not publish the proposal until after the OMB completes its initial review, but the agency’s submission to OMB is an indicator that it could be published soon. (Read our story on the new law here.)

The PWFA specifically directs the EEOC to issue regulations IN FINAL FORM to implement the new statute by December 29, 2023 (now less than six months away). EEOC Vice Chair Jocelyn Samuels made nationwide headlines when she announced at DEAMcon23 in April that “my hope is that we will be able to get out a proposed regulation very shortly within a matter of weeks or months.”

Meanwhile, on Tuesday, the effective date of the PWFA, the EEOC announced that it had begun accepting charges for alleged incidents that occurred on or after June 27, 2023. The U.S. Justice Department also announced (via Twitter) that it has begun enforcing the PWFA against state & local government employers.

Updated Poster & Other New Resources

In addition to accepting charges, the EEOC released new additional educational resources, including tips for workers to request accommodations, a “Know Your Rights” video series, and a revised “Know Your Rights” poster required to be posted in most workplaces. Previously released resources include a Q&A on “What You Should Know about the Pregnant Workers Fairness Act,” an infographic for employers, and an informational poster about the PWFA.

Covered employers are now (as of June 27) required to post the updated version of the “Know Your Rights” poster. For comparison, the poster went from this to this. Readers may recall that the last time the EEOC updated this poster was in October 2022. Shortly thereafter, OFCCP updated its posting requirements to sync with the EEOC’s changes.

Thursday, June 29, 2023: U.S. EEOC Discreetly Announced EEO-1 Reporting Tentative Starting Date Pushed Back to Fall 2023

An updated EEO-1 Component 1 Data Collection landing page now states that the EEOC has now tentatively scheduled the 2022 EEO-1 Component 1 Data Collection to open in the Fall of 2023. This new tentative date is several months later than the mid-July tentative opening date that the U.S. Equal Employment Opportunity Commission (“EEOC”) had posted back in January.

Also, the update reported that “the Message Center is no longer accepting any requests for assistance. The Message Center will resume normal operations immediately prior to the opening of the 2022 EEO-1 Component 1 data collection.”

The EEOC’s “Update” also reported that the EEOC will post all further updates about the 2022 EEO-1 Component 1 data collection to www.eeocdata.org/eeo1 as they become available. Future updates will include the final opening date and also the opening date of the Filer Support Message Center,

Pending Information Collection Renewal Request

The EEOC explained that the tentative deadline pushback was because it is “currently completing a mandatory, three-year renewal of the EEO-1 Component 1 data collection” by the Office of Management and Budget (“OMB”) in accordance with the federal Paperwork Reduction Act (“PRA”) requirements. This explanation, of course, begs the question why the Commission did not start earlier to file this perfunctory every three-year report it has successfully timely filed for over three decades.

Pay Data Reporting Window Now Missed For This Year?

The real explanation for the delayed EEO-1 reporting date to an uncertain reporting date lies with the White House’s now broken hope that it might have by now convinced the U.S. Senate to confirm the President’s nomination of Ms. Kalpana Kotagal to be the third Democrat on the five-Member bi-partisan Equal Employment Opportunity Commission. Ms. Kotagal’s arrival to the EEOC earlier in the year would have allowed the Democrat-led Commission to pursue its hope of again restarting EEO-1 hours worked and pay data reporting as had occurred on one occasion at the direction of the Obama EEOC. We earlier reported here that the White House is still hoping for a breakthrough in the Senate on the President’s Kotagal nomination (now pending for over a year since the President first nominated her and now heading deep into a second year). As a result, the EEOC Democrat leadership is still being coy—even at this late date–about the EEO-1 filing date hoping for miracles in the Senate.

“Fall” 2023 starts September 23 and is now only 82 days out from today’s publication. Historically, the EEOC has alerted employers much sooner than only than 3 months out about potential upcoming EEO-1 filings. By historical standards, the Commission would have already etched the filing date in stone months ago for a “Fall” filing. This push back to an uncertain date is a further disappointment to employers that had been hoping the Commission would again stabilize its EEO-1 filing date. That date had been stable for decades until the roller coaster ride of differing filing dates employers have endured since the second Obama Administration when the EEO-1 filing tool became politicized and sensationalized for the first time with the advent of the highly controversial hours worked and pay data reporting political debate.

At this rate, however, it seems reasonable to believe that the EEOC has now missed “its window” for this year to resume EEO-1 hours worked and pay data reporting. The only way that could occur at this late date would be for the Senate to suddenly confirm Ms. Kotagal’s nomination AND the Commission to take the enormously provocative step of simply willy-nilly ordering employers to file this new EEO-1 report for 2022 data without formal Rulemaking, and on very short notice. Good luck with that unless you want to see a widespread employer rebellion which would tear at the fabric of trust between the Commission and employers in the United States with 100 or more employees.

Related News

In November 2022 and again in May 2023, we reported that the EEOC proposed –  as part of its renewal request to OMB – to eliminate counting employees to determine filing “Type” for the EEO-1 Component 1 Data Collection. See our story here for a detailed discussion of the proposal,

The 60-Day Notice comment period for this renewal request ended on January 9, 2023, with two comments submitted. The 30-Day Notice comment period closed on June 1, 2023.

June 29, 2023: SCOTUS Ends Its 45-Year Detour Around The Equal Protection Clause By Now Finding “Race-Based” Admissions Practices At Harvard and UNC Unlawful

Majority Said Grutter Promised to End Race-Based Admission Practices This Decade

  Majority Found Harvard & UNC Also Failed The Prior Grutter Test Which Made Race-Based Admission Practices in Higher Education Temporarily Lawful Under Narrow Circumstances Both Universities Failed To Follow

Part I, below, sets out what the Court held, exactly.

To help you understand and navigate the law at issue in the Harvard and UNC case decision, you may wish to first read this DirectEmployers Blog from last Monday (June 26, 2023) which describes the law and SCOTUS’ five prior race-based admissions preferences case decisions which have led up to last week’s Harvard and UNC cases before the SCOTUS: “The Harvard and UNC Case Decisions Are Coming: What Corporations, Colleges and Universities, and Federal Contractors Need to Know”.

Part II, below, sets out notable quotes of all Justices highlighting their opinions.

The SCOTUS Harvard/UNC Case Decision. It is 237 (8 x 11-inch) pages in length: almost half a ream of paper. The Court combined the Harvard and UNC cases into one single opinion which you may find here. Justice Jackson did not participate in the Harvard decision since she recused herself for ethical reasons (she was on the Board of Overseers of Harvard College, Harvard’s second-highest governing body, before her appointment to the SCOTUS. She indicated at the time of her Senate Confirmation Hearings that she would not participate in the Harvard decision, as a result).

The decisions were 6-2 to reverse Harvard’s winning decision below in the First Circuit Court of Appeals (Boston) and 6-3 to reverse the University of North Carolina’s winning decision below in the federal District Court for the Middle District of North Carolina. You will find Slip Opinions for all six Justices who wrote opinions in the above-referenced hyper-link. A “Slip Opinion” is the informal form of court decision before it is printed and bound in the formal Supreme Court Reporters (a year or two from now) and assigned a formal citation number at which volume and which pages to find the decision. NOTE: Slip opinions are separately numbered (one to infinity) and are NOT consecutively numbered as one progresses from one opinion to the next. Since there were six Slip Opinions that six Justices wrote, there are thus six-page “ones”.

Part I: What the Court HELD, Exactly

[Roberts Majority Opinion, Slip Opinion p. 22] “But we have permitted race-based admissions only within the…

Thursday, June 29, 2023: The Four “Elevator Speeches” Federal Contractor Compliance Managers and AAP Vendors Now Need Post Harvard/UNC

These Will Help Avert The “Affirmative Action Baby” Being Thrown Out With “The Race-Based Preferences Bathwater”

So, several Justices of the SCOTUS in their Harvard AND UNC opinions joined almost the entire mainstream media in making “Affirmative Action” synonymous with unlawful “race-based preferential action”: “Affirmative Action” = unlawful preferences was the message.

To his great credit, Chief Justice Roberts wrote his Majority Opinion VERY carefully and did not step into that puddle. Rather, the Chief Justice repeatedly and consistently referred only to “race-based preferences” and avoided equating them to “Affirmative Action” in his lengthy opinion.

Federal contractors know that OFCCP’s “Affirmative Action” requirements do not require race-based, or national origin-based, or sex-based preferences in employment. But because of provocative attention-grabbing mainstream media reporting, federal contractor representatives and their vendors now suddenly live under an unfortunate and unearned cloud of suspicion that they are daily engaging in unlawful preferential race-based and/or national-origin-based or sex-based “Affirmative Action.”

So, here are four “Elevator Speeches” federal contractors and their AAP vendors ought to commit to memory, or ones like these, and repeat often in the coming weeks and months to set the record straight.

Elevator Speech #1

For use when you bump into someone from the C-Suite on the elevator riding up to their floor in your company Headquarters tower who wonders whether the Compliance Group/DE&I budget(s) should now be cut because the SCOTUS has “outlawed Affirmative Action:”

“Our Affirmative Action” is not Harvard or UNC’s unlawful race-based preferences. Those Universities admitted they engaged in discriminatory race-based school admission practices. We do not engage in race-based decision-making and never have. We practice inclusion for all races and nationalities and genders, including Whites, Blacks, Asians, Individuals with a Disability, and Veterans, etc.: come one, come all.” We are still “on mission”: all pistons firing.

Elevator Speech #2

For use when the Company General Counsel or VP of Global HR sends an e-mail wondering: “What do we need to do differently here at Company X in light of the Harvard and UNC case decision? Do we need to re-set course”?

“Dear Boss”. We do not need to do anything different following the Harvard and UNC case decision. Moreover, we dare not change course for fear of violating our federal contracting compliance obligations and putting our (thousands/millions/billions) of federal contracting revenue at risk.

Our company does not now and has never engaged in the kind of race-based decision-making the SCOTUS found unlawful at Harvard and UNC. We recruit all races and nationalities. We hire and promote based on qualifications and merit without considering the race or national origin of either our Applicants or Employees.

It was unfortunate that the press labeled the discrimination Harvard and UNC practiced as “Affirmative Action” because that is not our Affirmative Action or the Affirmative Action of any other federal contractor. And OFCCP is not going away and is still expecting us to continue to undertake the preventative maintenance, fact gathering, and diagnostic analyses our federal contracts require (which the OFCCP calls an “Affirmative Action Plan”) to ensure we are not engaging in unlawful discrimination. Our employment practices are aligned with the prohibitions on race-based discrimination the SCOTUS laid down in its Harvard and UNC cases decision.

Nor is our Compliance Group’s DE&I mission changing course. The same things we do as a federal contractor to ensure nondiscrimination and position the company to be diverse are the same lawful things we do to pursue our DE&I mission.

Elevator Speech #3

to use when you want to go out on the offensive and beat those who wonder at the top of your shop to the punch.

Dear CEO, General Counsel, and VP HR Global: As you know, the modern media coverage of the SCOTUS’ Harvard and UNC case decision has confused things by equating unlawful “race-based decision-making” with the kind of non-preferential “Affirmative Action” federal Government contractors like our company undertakes. We fear that confusion will increase the sensitivity of those in our recruiting pools to the precise language and images our company uses in its recruitment marketing campaigns.

To help head off possible confusion among our recruits and future employees, the Compliance Group requests the opportunity to review in advance of release to the public all corporate recruitment marketing campaign materials. We would apply the same preventative maintenance review that our federal Affirmative Action requirements require us to undertake as to the company’s employment law policies and practices to ensure they do not cause or permit unlawful race-based or national origin-based decision-making at our company, or the inadvertent appearance of same.

Elevator Speech #4

To use if you want to reassure your employees.

Greetings fellow employees of [name of company]

We wanted to assure you in the wake of the United States Supreme Court’s decision last week in the Harvard and University of North Carolina cases that our company does not make employment decisions based on race, sex, gender identity, national origin, color, ancestry, disability, veterans’ status or any other legally Protected Status. Our company’s employment policies are aligned with the Supreme Court’s decision which struck down discriminatory race-based decision-making in admission to institutions of higher learning.

To be clear, the Supreme Court struck down the decision-making at institutions of higher education which had been allowed for almost half a century to make school admission decisions based on the race of the candidates applying to their schools. That ended last week. Our company has never engaged in race-based decision-making for hiring, promotion, pay, or as to any other employment policy or practice.

While [name of company] does develop and will continue to develop “Affirmative Action Programs” per federal contracting law, those Plans do not make or consider race in any of our employment programs or benefits. Rather, those Plans, like the Affirmative Action Plans of all federal contractors, are simply diagnostic evaluations of the availability to our company to hire Minorities and Women, Individuals with a Disability, and Protected Veterans available to us in the marketplace. They help our recruiters know how many candidates out there are available to us, and where to look. Those Plans do not require or allow race-based decision-making of the type the Supreme Court struck down last week.

If you have any questions, please do not hesitate to contact _________. In the meantime, please rest assured we at [name of company] continue to apply the laws applicable to our company in a fair and even-handed way with the company’s and your interests, welfare, and safety in the forefront of our minds.

Thank you [name of sender]

Thursday, June 29, 2023: Three Justices Square Off in the Harvard/UNC Case Decision Over the Accuracy of OMB Directive 15 Defining Race and National Origin in America

We pass the comments of the three Justices along as a “mirror” and without editorial comment, although we do offer, below, explanations of technical terms from time to time to aid the reader to follow the debate among the Justices.

First, Chief Justice Roberts, in his Majority Opinion for the SCOTUS in the Harvard and UNC case decision, poked at what is known as the White House Office of Management and Budget’s (“OMB”) 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (“SPD 15”). The Chief Justice called OMB’s current racial definitions “opaque”, as we will see below.

While this is an obscure OMB Directive, it is important to the Equal Employment Opportunity community since OMB SPD 15 provides the backbone definitions of race and ethnicity for use throughout the entire federal government, and its stakeholders (like employers filing annual EEO-1 Reports and federal contractors developing Affirmative Acton Plans, for example). SPD 15’s purpose is to maintain a constant and common definition when collecting race and ethnicity data anywhere within the federal government, or by its stakeholders.

-We most recently wrote about SPD on May 30, 2023, here when discussing the Federal Interagency Technical Working Group on Race and Ethnicity Standards (“Working Group”) Report of its emerging plans to possibly amend the SPD 15’s definitions of race and national origin. (“Ethnicity” is not a statutory or regulatory word, but rather is street jargon to refer to what the Civil Rights Act of 1964, the EEOC, and OFCCP refer to as “national origin”).

Second, Justice Gorsuch took a special interest in OMB SPD 15 and wrote three pages of questioning criticism of the OMB Directive in his Concurring Opinion, raising some of the same concerns the Federal Interagency Working Group has voiced.

Third, Justice Sotomayor then jumped into the squabble in her lead Dissenting Opinion and chided the Majority for presuming “…that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness.”

We do not know whether the Federal Interagency Working Group will feel particularly happy to be caught in the crossfire of a major Supreme Court decision. But, I am sure the Working Group will appreciate that the SCOTUS has now elevated the importance of their work. (I have lectured for over three decades before thousands of employment lawyers and affirmative action, compliance, and HR managers about the content of OMB SPD 15. The typical reaction has always been yawns and wonderment as to why I was taking up valuable podium time during the conference to discuss the intricacies of the federal definitions companies use every day to assign racial and national origin classifications to the millions of applicants and employees applying for work and employed each year. Well, OMB SPD 15 is now on the front page!)

So, What Was/Is The Fuss About, Specifically?

A. Roberts Tees It Up:

[Roberts Majority Slip Opinion at pp. 25-26, in which he attacks the definitions of race the universities used as part of the Court’s concern that “…[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification [for use] and classification.” The Majority’s point of view is that close enough for horseshoes is not close enough for the federal Courts which must stubbornly guard the Constitution’s 14^th Amendment Equal Protection Clause prohibition on the government’s use of race other than for extraordinary reasons, and then only when they are carefully tailored to the need compelling the use of race]:

“It is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.

For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents [the universities] are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as ‘Hispanic,’ are arbitrary or undefined. See, e.g., M. Lopez, J. Krogstad, & J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15, 2022) (referencing the ’long history of changing labels [and] shifting categories . . . reflect[ing] evolving cultural norms about what it means to be Hispanic or Latino in the U. S. today’). And still other categories are underinclusive. When asked at oral argument ‘how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,’ UNC’s counsel responded, ‘[I] do not know the answer to that question.’ Tr. of Oral Arg. in No. 21–707, p. 107; cf. post, at 6–7 (GORSUCH, J., concurring) (detailing the ‘incoherent’ and ‘irrational stereotypes’ that these racial categories further).

Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals. By focusing on underrepresentation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter. Yet ‘[i]t is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is ‘broadly diverse.’’ Parents Involved, 551 U. S., at 724 (quoting Grutter, 539 U. S., at 329). And given the mismatch between the means respondents employ and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use.

The universities’ main response to these criticisms is, essentially, ‘trust us.’ None of the questions recited above need answering, they say, because universities are ‘owed deference’ when using race to benefit some applicants but not others. Brief for University Respondents in No. 21–707, at 39 [internal quotation marks omitted]. It is true that our cases have recognized a ’tradition of giving a degree of deference to a university’s academic decisions.’ Grutter, 539 U. S., at 328. But we have been unmistakably clear that any deference must exist ‘within constitutionally prescribed limits,’ ibid., and that ‘deference does not imply abandonment or abdication of judicial review,’ Miller–El v. Cockrell, 537 U. S. 322, 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffirmed, ‘[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ Gratz v. Bollinger, 539 U. S. 244, 270 (2003) [internal quotation marks omitted]. The programs at issue here do not satisfy that standard.” [footnote 5 omitted]

B. Gorsuch Tees It Up:

[Gorsuch Concurring Slip Opinion at pp. 5-8 in which he attacks as “incoherent stereotypes.”… “And no one can doubt that both schools intentionally treat some applicants worse than others at least in part because of their race.

1.

Start with how Harvard and UNC use race. Like many colleges and universities, those schools invite interested students to complete the Common Application. As part of that process, the trial records show, applicants are prompted to tick one or more boxes to explain ‘how you identify yourself.’ 4 App. in No. 21–707, p. 1732. The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White. Applicants can write in further details if they choose. Ibid.; see also 397 F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596 (MDNC 2021).

Where do these boxes come from? Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection. See D. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission acted ‘without any input from anthropologists, sociologists, ethnologists, or other experts.’ Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief ). Recognizing the limitations of their work, federal regulators cautioned that their classifications ‘should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program.’ 43 Fed. Reg. 19269 (emphasis added). Despite that warning, others eventually used this classification system for that very purpose—to ‘sor[t] out winners and losers in a process that, by the end of the century, would grant preference[s] in jobs . . . and university admissions.’ H. Graham, The Origins of Official Minority Designation, in The New Race Question: How the Census Counts Multiracial Individuals 289 (J. Perlmann & M. Waters eds. 2002).

These classifications rest on incoherent stereotypes. Take the ‘Asian’ category. It sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world’s population. Bernstein Amicus Brief 2, 5. This agglomeration of so many peoples paves over countless differences in ‘language,’ ’culture,’ and historical experience. Id., at 5–6. It does so even though few would suggest that all such persons share ‘similar backgrounds and similar ideas and experiences.’ Fisher v. University of Tex. at Austin, 579 U. S. 365, 414 (2016) (ALITO, J., dissenting). Consider, as well, the development of a separate category for ‘Native Hawaiian or Other Pacific Islander.’ It seems federal officials disaggregated these groups from the ‘Asian’ category only in the 1990s and only ’in response to political lobbying.’ Bernstein Amicus Brief 9–10. And even that category contains its curiosities. It appears, for example, that Filipino Americans remain classified as ‘Asian’ rather than ’Other Pacific Islander.’ See 4 App. in No. 21–707, at 1732.

The remaining classifications depend just as much on irrational stereotypes. The ’Hispanic’ category covers those whose ancestral language is Spanish, Basque, or Catalan— but it also covers individuals of Mayan, Mixtec, or Zapotec descent who do not speak any of those languages and whose ancestry does not trace to the Iberian Peninsula but bears deep ties to the Americas. See Bernstein Amicus Brief 10–11. The ‘White’ category sweeps in anyone from ’Europe, Asia west of India, and North Africa.’ Id., at 14. That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family. Meanwhile, ‘Black or African American’ covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb. See id., at 15–16.

If anything, attempts to divide us all up into a handful of groups have become only more incoherent with time. American families have become increasingly multicultural, a fact that has led to unseemly disputes about whether someone is really a member of a certain racial or ethnic group. There are decisions denying Hispanic status to someone of Italian-Argentine descent, Marinelli Constr. Corp. v. New York, 200 App. Div. 2d 294, 296–297, 613 N. Y. S. 2d 1000, 1002 (1994), as well as someone with one Mexican grandparent, Major Concrete Constr., Inc. v. Erie County, 134 App. Div. 2d 872, 873, 521 N. Y. S. 2d 959, 960 (1987). Yet there are also decisions granting Hispanic status to a Sephardic Jew whose ancestors fled Spain centuries ago, In re Rothschild Lynn Legal & Fin. Servs., SBA No. 499, 1995 WL 542398, *2–*4 (Apr. 12, 1995), and bestowing a “sort of Hispanic” status on a person with one Cuban grandparent, Bernstein, 94 S. Cal. L. Rev., at 232 (discussing In re Kist Corp., 99 F. C. C. 2d 173, 193 (1984)).

Given all this, is it any surprise that members of certain groups sometimes try to conceal their race or ethnicity? Or that a cottage industry has sprung up to help college applicants do so? We are told, for example, that one effect of lumping so many people of so many disparate backgrounds into the ‘Asian’ category is that many colleges consider ‘Asians’ to be ‘overrepresented’ in their admission pools. Brief for Asian American Coalition for Education et al. as Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high school students of Asian descent to downplay their heritage to maximize their odds of admission. ’‘We will make them appear less Asian when they apply,’’ one promises. Id., at 16. ’‘If you’re given an option, don’t attach a photograph to your application,’’ another instructs. Ibid. [footnote 1 omitted] It is difficult to imagine those who receive this advice would find comfort in a bald (and mistaken) assurance that ‘race-conscious admissions benefit . . . the Asian American community,’ post, at 60 (SOTOMAYOR, J., dissenting). See 397 F. Supp. 3d, at 178 (district court finding that ’overall’ Harvard’s race-conscious admissions policy ‘results in fewer Asian American[s]’ being admitted). And it is hard not to wonder whether those left paying the steepest price are those least able to afford it—children of families with no chance of hiring the kind of consultants who know how to play this game.” [footnote 2 omitted]

C. Sotomayor Tees It Up:

[Sotomayor Slip Opinion at pp. 52 – in which she argues: “There is no evidence that the racial categories that respondents [universities] use are unworkable.” The Court also holds that Harvard’s and UNC’s race-conscious programs are unconstitutional because they rely on racial categories that are ’imprecise,’ ‘opaque,’ and ‘arbitrary.’ Ante, at 25. To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g., 62 Fed. Reg. 58786–58790 (1997). Surely, not all ‘‘federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies’’ that flow from census data collection, Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 2), are constitutionally suspect.

The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness. Yet it does not identify a single instance where respondents’ methodology has prevented any student from reporting their race with the level of detail they preferred. The record shows that it is up to students to choose whether to identify as one, multiple, or none of these categories. See Harvard I, 397 F. Supp. 3d, at 137; UNC, 567 F. Supp. 3d, at 596. To the extent students need to convey additional information, students can select subcategories or provide more detail in their personal statements or essays. See Harvard I, 397 F. Supp. 3d, at 137. Students often do so. See, e.g., 2 App. in No. 20–1199, at 906–907 (student respondent discussing her Latina identity on her application); id., at 949 (student respondent testifying he ‘wrote about [his] Vietnamese identity on [his] application’). Notwithstanding this Court’s confusion about racial self-identification, neither students nor universities are confused. There is no evidence that the racial categories that respondents use are unworkable.” [footnote 36 omitted]

Editor’s Note: DirectEmployers has a scheduled “Listening Session” with the Federal Interagency Technical Working Group on Race and Ethnicity Standards scheduled for September 21, 2023. Stay tuned for DE’s invitation to Members and Recruit Rooster customers to join that Session with the Working Group.

Thursday, June 29, 2023: Employers Must Grant Religious Accommodations Absent Substantial Increased Costs, Unanimous U.S. Supreme Court Ruled

Decision Clarified Landmark 1977 Ruling on “Undue Hardship”

SCOTUS suggested the EEOC revisit its “undue hardship” interpretations

The federal courts are now quickly coming full circle on the initial patent hostility they showed to employee accommodations in the workplace. The SCOTUS’ latest employee accommodation case opinion is just another decision helping to plot the new direction the federal courts have been setting on the general issue of company responsibilities to their employees. The courts, following state and federal legislative prods, are increasingly turning employers back to the corporate operating mantra before the 1970’s arrived: “Loyalty up; loyalty down.”

The SCOTUS last week made two adjustments to our understanding of the definition of the phrase “undue hardship” under Title VII law (making discrimination because of religious belief, among others, unlawful) in a unanimous ruling in Groff v. DeJoy (No. 22-174). The Court, however, made no reference to whether its decision might carry over to the “undue hardship” analysis under disability accommodations law. (But see the jump to the Blog, below, teeing up that issue for you to start pondering).

SCOTUS has now re-interpreted Title VII of the Civil Rights Act of 1964 (“Title VII”) to require a covered employer that denies a religious accommodation:

• to show that the burden of granting an accommodation would result in “substantial” increased costs (rejecting the SCOTUS’ 46-year-old “de minimis” standard), and
• to consider showing the substantial “increased cost” in relation to the overall conduct of its particular business (and not considering just the impact on other employees).

Most employers will likely greet this decision with repressed consternation fearing that all…

Looking Ahead:
Upcoming Date Reminders

June 2023: OFCCP’s current target date (now overdue) for its Final Rule on Pre-Enforcement Notice & Conciliation Procedures (RIN: 1250-AA14)

June 2023: U.S. DOL WHD’s current target date (now overdue) to publish its Final Rule on Nondisplacement of Qualified Workers Under Service Contracts (RIN: 1235-AA42)

June 2023: U.S. DOL WHD’s current target date (now overdue) for its Final Rule on Updating the Davis-Bacon and Related Acts Regulations (RIN: 1235-AA40) 

June 2023: U.S. OSHA’s current target date (now overdue) to publish its Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings (RIN: 1218-AD36)

August 2023: U.S. DOL WHD’s current target date for its Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (RIN: 1235-AA43)

August 2023: U.S. DOL WHD’s current target date for its Notice of Proposed Rulemaking on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (RIN: 1235-AA39) 

August 2023: U.S. NLRB’s target date for its Direct Final Rule on Quickie Election Procedures (RIN: 3142-AA18)

August 2023: U.S. NLRB’s current target date for its Final Rule on Standard for Determining Joint-Employer Status (under the NLRA) (RIN: 3142-AA21)

August 2023: U.S. NLRB’s current target date for its Final Election Protection Rule (RIN: 3142-AA22)

August 2023: U.S. DOL’s OASAM’s current target date to publish Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex” (RIN: 1291-AA44)

Friday, August 11, 2023: Comments due on the EEOC’s proposal to extend – without change – the Information Collection Requirement (“ICR”) for the ADEA/OWBPA third-party waiver and disclosure requirements 

Friday, August 11, 2023: Deadline for Presenter Proposal Submissions for DEAMCon 2024

December 2023: OFCCP’s current target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

December 2023: OFCCP’s current target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

December 29, 2023: Statutory deadline for EEOC regulations to enforce the  Pregnant Workers Fairness Act

Wednesday, April 3 – Friday, April 5, 2024: DEAMcon24 New Orleans 

June 2024: OFCCP’s current target date for its Notice of Proposed Rulemaking to Require Reporting of Subcontractors (RIN: 1250-AA15)

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.