The NILG Conference is always a good place to take the temperature of what is happening in Affirmative Action and workplace compliance. This year was no exception.
The operative word is transition. But transition to what? How will Agencies monitor the use of Artificial Intelligence (AI)? Agency leaders did not address politics except to stress “good jobs for all people.” However, an idea of the issues they face came up through the recent court decisions they mentioned.
OFCCP representatives stated that the Agency will issue another Supply and Service program Corporate Scheduling Announcement List (CSAL) of upcoming audits – promised before the end of September. The last three CSALs identified contractors who did not timely certify their programs in the OFCCP portal; contractors with low wages or contractors under the Bipartisan Infrastructure Bill; and contractors and subcontractors with high employee counts.
OFCCP is not saying what, if any, focus the new CSAL will have other than that it will avoid auditing the same contractors over and over as has happened in the past.
EEOC Chair Burrows displayed a warm and open attitude to the NILG audience, recognizing attendees as fellow champions of equal workplace inclusion. She addressed the lawfulness of DEI programs, stating they are legal if they do not set arbitrary goals and decisions are not based on race or other protected class. She noted EEOC involvement in several legal actions, stressing that the Agency filed a “friend of the court” brief in an action concerning hire selection (Muldrow) to underscore that the contractor is responsible for compliance if its vendor uses Artificial Intelligence. She outlined that EEOC is focused on the impact Artificial Intelligence (AI) on civil rights: “AI cannot come at the cost of our values as a society and the progress we have made under the Civil Rights Act.” Burrows referenced recent EEOC guidance on AI.
Chair Burrows also focused on the Pregnant Woman’s Fairness Act (PWFA), saying it addresses “a tendency to see pregnant and postpartum women as less connected and committed at work.”
Acting OFCCP Director Michelle Hodge’s presentation focused on enforcement and Agency online resources available to employees (streamlined processes for filing complaints) and to federal contractors (new sets of Frequently Asked Questions and similar resources). She said the OFCCP’s primary focus is on contractor compliance. She maintained that the Agency’s updated Supply and Service Itemized will strengthen and speed up audit review. As another of the Agencies’ new efficiencies, she also referenced the practice of having a single OFCCP region coordinate review of a contractor’s establishments “across multiple regions.” Acting Director Hodge also focused on AI, stressing that federal contractors must understand the implications of its use and cannot offload compliance obligations onto vendors who use AI. She referenced recent OFCCP guidance on the subject.
Office of Disability Employment Policy (ODEP) Assistant Secretary Faryn Williams noted that although the labor market is the strongest on record for employment of persons with disabilities, the employment numbers for people of working age with disabilities continue to lag the workforce as a whole (40.5% for persons with a disability, 78.7% for those without). She identified a wide range of tools at the Employer Assistance and Resource Network on Disability Inclusion (EARN) and the Job Accommodation Network (JAN). She highlighted ODEP’s commitment to collaborating with the contractor community to identify and remove barriers to the employment of persons with disabilities.
The Elephant in the Room
A recent Supreme Court decision (Corner Post) allows challenges to statutes that have been in effect for decades. A Supreme Court decision (“Loper Bright”) overruling “Chevron deference” allows courts freer hands to overrule agencies’ interpretations of statutes and regulations. These decisions are tools for those who wish to limit the authority of agencies such as EEOC and OFCCP. OFCCP and Department of Labor Solicitor’s Office representative state that while government-wide discussion of the impact of these decisions is ongoing, they believe that the Agency is acting within its authority. Nevertheless, these legal changes, the uncertainty around the upcoming election, and the first use and review of AI make the present moment one of transition and uncertainty.
As something of an antidote, the next blog in this series will review concrete compliance practice recommendations made at the Conference.
Note: Mitratech was a gold sponsor of the NILG 2024 National Conference; the blog author is an NILG Board member. This said, nothing beats being at the Conference. Unique dimensions to the in-person experience include meeting agency representatives and getting to know knowledgeable lawyers, consultants, and your peer practitioners. So please register for the 2025 NILG Annual Conference, held July 22-25, 2025 at National Harbor, Maryland.
