August 2012

The Strange Case of Hawaii and Puerto Rico: Or, Where to Affirmative Action?

By convention and practice (not by Executive Order, statute, regulation or guideline), OFCCP has never required covered federal contractors and subcontractors to prepare Affirmative Action Plans for minorities for their establishments in Hawaii or Puerto Rico. OFCCP has nonetheless always required federal contractors with establishments in Hawaii and Puerto Rico to create AAPs for Women. (You will recall the entertaining case in the Clinton Administration when OFCCP sued a small latex glove manufacturer in the Puerto Rican rain forest outside of San Juan (which was 100% Puerto Rican owned and which employed a 100% Hispanic workforce) because it refused to create AAPs. The company wondered: “Really? What’s the use?” OFCCP answered, of course, that while the company need not have an AAP for minorities, it did need to create an AAP for women since they were in Puerto Rico and not in the homeland of the Amazons. A Consent Decree then followed since the company wanted to continue to sell its gloves to the United States Army’s surgical hospitals around the world.)