Implementing affirmative action programs and complying with OFCCP requirements are intensely practical matters for those charged with these responsibilities. It may seem that abstract questions about the Rule of Law are far afield from such practical concerns.
However, the most important requirement that OFCCP enforces relates to an abstract law: “The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.” E.O. 11246, § 202(1). This seemingly simple requirement masks considerable complexity and practical implementation challenges. The recent wave of sexual harassment allegations in the entertainment industry aptly illustrates the practical challenges. It has been three decades since the Supreme Court recognized sexual harassment as a form of unlawful discrimination and two decades since the Court provided robust incentives for employers to take effective steps to prevent and promptly correct workplace harassment. Yet these high-