office workers (Robert Adrian Hillman/

The small federal office at the heart of Biden's equity agenda

A civil rights office tucked inside the Labor Department is gearing up to play an outsized part in the Biden administration's work on racial equity.

The Office of Federal Contract Compliance Programs (OFCCP) might not be widely known, but it's familiar to federal contractors that fall under its purview. It has the power to check the internal human resources practices of private companies that perform work for the government.

"OFCCP, from a civil rights viewpoint, is probably the most impactful civil rights organization the government has, because it can tell contractors, 'this is how we want you to do things,'" said Anthony Kaylin, vice president at the American Society of Employers, a human resources trade association.

The reach of OFCCP extends into the affairs of 25,000 contractors and 120,000 other businesses, covering about 20% of the American workforce.

The office's director, Jenny Yang, wants to maximize on what she has called, "a chance to make the kind of transformative change…not seen since the 1960s." But first, she'll have to rebuild her workforce, which the smallest workforce in its history and finish turning back the machinery gutted Trump-era policies.

The office provides compliance assistance to contractors, investigates complaints and evaluates the employment practices and affirmative actions of companies. Yang and her team want to rebuild the office's enforcement program and focus on systemic discrimination in pay and hiring.

"Biden has made racial equity a core pillar of his administration," said Dariely Rodriguez, OFCCP's chief of staff, in an interview with FCW. "That falls squarely within OFCCP's mission to advance equity."

Biden, too, signaled the importance of the office when he appointed his pick to lead the office on his first day in office. Yang is an Obama-era veteran of the Equal Employment Opportunity Commission, where she worked on data collection efforts meant to tackle the pay gap.

"That was a really huge signal to the regulator community of how important OFCCP will be under the Biden administration," said David Cohen, the co-chair of the Institute for Workplace Equality and the president of DCI Consulting Group.

Biden also issued an executive order on his second day in office calling for a "whole-of-government equity agenda," in which he called on agencies to review their procurement practices for equity issues. OFCCP is involved in that process for the Labor Department, officials said.

The Office of Management and Budget released a request for information on May 5 following up on this, where they asked for information about "approaches and methods for assessing equity in agency procurement and contracting process."

Biden's budget request for fiscal year 2022 also referenced OFCCP's "critical opportunity" to contribute to advancing racial equity. The office is going to develop a "comprehensive initiative to advance racial equity at work" by helping to increase practices shown to help close racial pay gaps, for example.

Moving forward, the office will work on ensuring an equitable economic recovery from the pandemic, the effects of which were felt more by some communities than others, Rodriguez said.

Focus on contractors

Part of what gives the OFCCP its reach is into employers' HR offices is its focus on federal contractors.

"Because of their unique relationship they have with contractors, government has the authority to modify and describe what those terms and conditions of that relationship are," said Alan Chvotkin, former executive vice president and counsel of the Professional Services Counsel and current partner at Nichols Liu, a government contracting law firm.

In February, the office entered a settlement with Google to resolve allegations of systemic compensation and hiring discrimination in facilities in California and Washington. The office found problems in hiring rates and pay differences affecting female software engineers and female and Asian applicants during routine compliance evaluations. Google is paying over $3.8 million to over 5,500 current employees and applicants as part of the settlement.

Remedying pay discrimination is a good example of the office's power, Rodriguez said. It can find problems that employees or job applicants don't necessarily know about, or see disproportionate effects that stem from seemingly neutral policies.

"Because of the culture of secrecy, oftentimes workers just don't know if they're being paid less. So if you don't really know if you are being paid less, how can you even complain about it?" Rodriguez said. "We actually have the ability to analyze data and to see if there are any patterns that may indicate potential disparities and to then proactively remedy those."

For contractors, being required to comply with data reporting requirements can be illuminating in and of itself, said Mitchell Robinson, labor and employment attorney at Baker Hostetler.

"On a basic level, it means that we are in a situation where this is now on the record. That companies are forced to in many ways, because of these regulations, become more aware of equity issues they may have in the workplace," he said.

In 2020, OFCCP was the loser in a discrimination lawsuit against Oracle America Inc. The result called into OFCCP's analysis of the company's pay data. Yang said at an American Bar Association conference in April that she doesn't agree with the decision of the Labor Department's administrative law judge, and a new pay data collection tool could be in the offing.

This article first appeared on FCW, a FederalSoup partner site.

2021 Digital Almanac

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