Punch line: It’s all about documentation, just when you have fired and transferred all of your document clerks.
Weldon Rougeau, the Carter Administration OFCCP Director, forever changed OFCCP and laid the foundation bricks for the building Pat Shiu and the Obama Administration are now constructing on Director Rougeau’s foundation.
Before Director Rougeau, OFCCP was a federal contractor agency requiring Affirmative Action. While Executive Order 11246 (but not Section 503 or VEVRAA) had non-discrimination authority to be sure, the agency rarely pursued discrimination investigations. Moreover, it lacked regulations allowing it to file Administrative Complaints before Administrative Law Judges seeking back pay. This was not an early oversight – the Congress had specifically declined to grant OFCCP such authority, or the right to issue self-enforcing subpoenas. Director Rougeau’s regulations purported to create that authority for the first time. It was thereafter that federal contractors then began to count – they counted Applicants; they counted Offers, Hires, and who was in the pool for promotion; and they counted who was an “Applicant” for Involuntary Termination. The bricks were laid for the coming 30 years of OFCCP “failure to hire entry-level production labor” investigations and prosecutions (which to this day still account for well over 95% of all of OFCCP’s back pay collections). The EEOC did not pursue failure to hire cases since few Applicants filed Complaints and the EEOC, of course, was/is Complaint driven.
The era of “contractors as document clerks” began as we began to catalogue race, sex and ethnicity, and Xerox (through its Business Services Division) created “carbon paper” “tear-away sheets” to help contractors cause Applicants to self-identify race, sex and ethnicity…to help federal contractors count…
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.
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