Ubiquitous Affirmative Action Policy Is Unenforceable, Meaningless
by Kurt Ronn, president and founder, HRworks
If a tree falls in the forest, and nobody is there to hear it fall, does it make a sound? If affirmative action regulations are so complex, so broad that they impact nearly everyone, so constantly changing that no one can keep up, and there is no one to implement or audit them, do they make a difference?
The year 2010 marked the 45th anniversary of Executive Order 11246, which led to the creation of Office of Federal Contract Compliance Programs (OFCCP). The U.S. Department of Labor (DOL) has gained new vigor under the Obama administration and has done a great job of communicating the goal of Good Jobs for Everyone. Central to DOL’s vision is the idea that “the reach” for good jobs must truly be within the grasp of everyone.” And OFCCP is on the front lines of defense for those who seek work and those who are at work with federal contractors or subcontractors.
According to the congressional record, Secretary of Labor Solis and OFCCP Director Shiu have worked to refocus OFCCP on three priorities:
- Strengthening enforcement;
- Implementing a robust regulatory agenda; and
- Identifying more individual complaints through greater outreach.
Relating to the first point, strengthening enforcement has lead to OFCCP compliance officers going on-site to verify how contractors are treating protected veterans and people with disabilities. According to OFCCP, roughly 30 percent of all on-site reviews found recruitment violations pertaining to protected veterans.
There have been significant commitments made to increasing the size of the OFCCP staff and increased threats of the likelihood of imposing contract-related sanctions against contractors or subcontractors for failure to comply with the laws has been stated.
The second point of implementing a “robust agenda” includes an enforcement program targeted to help veterans gain employment, specifically a regulatory agenda that pertains to VEVRAA and Section 503. The Notice of Proposed Rulemaking for VEVRAA requires federal contractors and subcontractors to strengthen affirmative action programs and measure the effectiveness of their equal employment opportunity efforts.
The third refocus is a shift from systemic complaints to individual complaints and more typical of an EEOC initiative than the systemic focus of Mr. Charles James’ years at OFCCP.
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Focusing compliance is a great idea; however, the three refocus points are not operating in a compliance vacuum. The past 2 years have seen enormous, and maybe even onerous, expansion of regulations. For instance the Lilly Ledbetter Act, the broadening of disability classifications and related litigation due to the ADAAA requirements, an increased focus on accessibility to online applications and the Genetic Information Nondiscrimination Act (GINA), which prohibits employment discrimination based on genetic predisposition all end up in the compliance department—each having to be considered, implemented and measured.
Note that the GINA regulations combined with HIPAA regulations could result in an employer being sued for asking an employee how his mother is doing following her heart attack. Imagine having to hold employees accountable across the organization, reminding them to not ask how someone’s mother is doing after surgery? Is that the type of caring environment that Human Resources executives and great managers try to build within their organization?
OFCCP’s refocus is a great idea, but the context of affirmative action compliance is broad-reaching, complex, and ever changing, which makes for a perfect storm of noncompliance and inability to effectively audit contractor performance. The result of too much, too fast could result in less compliance and less opportunity for equal employment.
There is an old saying, “No good deed goes unpunished.” The intent of all of the regulations is positive; however, the “Great Recession” has resulted in massive unemployment expected to stay around 9 percent for years to come. Corporate budgets continue to be under extreme pressure and for the coming 2 years; federal government budgets are expected to be under extreme pressure as deficit reduction and fiscal responsibility forces hard decisions. State budgets are already there, fighting to support education, police forces and in some cases solvency.
It is time for DOL to step back and decide what can be accomplished and for federal contractors to pick a few places where they feel they can make a difference or risk accomplishing nothing at all. Execution requires reasonable requirements, focused resources on achievable objectives. Ubiquitous only good for the air we breathe. Affirmative Action policy must be aspirational as well as achievable or it is meaningless, and we all lose.
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Kurt Ronn is the president and founder of HRworks, an award-winning national recruitment firm that helps companies acquire talent with an expertise in federally compliant, executive, large-scale project and military recruitment. For more information, visit HRworks.com.