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In the four prior articles in this series, we have conducted an evaluation of OFCCP’s recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, “What is Law?” This last article in this series addresses contractor concerns that have emerged over the past five years about what appears to be OFCCP’s results-oriented application of the law, i.e., determining whether a position or method is appropriate in a given case by whether it produces a finding of discrimination. The solution to this problem may be a formal “Contractor’s Bill of Rights,” but one that offers contractors more reliable protections than that suggested by OFCCP’s recent “Town Hall Action Plan,” which provided:
In past years, OFCCP built its enforcement policies on a dim view of federal contractors’ employment practices. For example, OFCCP repeatedly expressed its view that the “pay gap” indicates the existence of widespread and systemic pay discrimination in the workplaces of most federal contractors. This perspective was the basis for the OFCCP’s Directive 307, which purported to afford Agency investigators broad discretion to use aggregated regressions and other controversial methods to allege systemic pay discrimination. OFCCP rescinded the 2006 Standards and adopted Directive 307 precisely because it believed in the existence of widespread discrimination that could not be alleged to exist based on its application of the 2006 Standards.
There can be no reasonable doubt that cases of discrimination exist in the modern American workplace, even in the workplaces of federal contractors. That reality, however, does not support the broader perspective that discrimination is systematic and widespread, nor the presumption that it exists in most workplaces, such that the relevant question is not whether it exists here, but how OFCCP might be in a position to allege it and obtain a settlement.
Because people are subject to discrimination in American workplaces, OFCCP’s anti-discrimination mission is quite an important one. In pursuing its valuable mission, OFCCP (like any regulatory entity) may fall prey to the temptation to see the importance of the ends to be achieved as a basis for overriding otherwise reasonable concerns about the means used to reach those ends. Perhaps it is true that issuing a press release accusing an employer of discrimination or announcing a discrimination settlement, based on controversial methods and even in cases where no discrimination actually exists, can promote the ultimate goal of non-discrimination. Contractors may take heed and work harder to ensure non-discrimination to avoid a similar fate.
However, the Rule of Law does not incorporate that robust, results-oriented perspective and its value is often in the fact that it does not. One fundamental aspect of the Rule of Law is that, while Law is designed to serve societal needs, the Law does not bend to achieve results that may be deemed to serve those goals in every particular case. Why might we apply Law as a Rule rather than bending the law when applying it in every particular case? A famous answer, given by Sir Thomas More in Robert Bolt’s A May for All Seasons, is as follows:
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you're just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
OFCCP can hardly be said to have sought perdition for federal contractors, even those it accused of discrimination. It has, however, pursued aggressive and controversial approaches based on a perspective that systemic discrimination runs rampant in the workplaces of federal contractors.
Contractors’ legitimate concerns about results-oriented audit positions taken by OFCCP could certainly be addressed in a Contractors’ Bill of Rights. The protection of the Law is no more profoundly expressed than in a Bill of Rights. However, to be effective and to prevent overzealous auditors from ignoring the requirements, they must be somehow enforceable. It is not enough to expect contractors to complain to Washington because the local office refuses to honor the directives. In this respect, OFCCP’s recently announced plans to provide contractors a “‘Bill of Rights’ styled document” likely will be insufficient. The new leadership at OFCCP should consider providing contractors adequate protections against results-oriented audit practices and adopt other measures designed to prevent past abuses.