After accusing Omega Apparel of discrimination, the Department of Labor proposed a remedy for the veteran-owned Tennessee military clothing supplier: Hire more men.
Fifty-six, to be exact, to achieve more equity among its disproportionately female sewing machine operators. The disciplinary action against Omega, which included a settlement of over $200,000 paid out to men passed over for jobs, shows what can happen to a seemingly straightforward policy through expansive federal regulations within a sprawling bureaucracy.
Affirmative action has long meant taking action to avoid discrimination against minorities and women – and across much of the workplace it still does. But to the Labor Department agency holding power over all $500 billion in federal contracts it frequently means the opposite.
Landcare, a commercial landscaping company, has learned this the hard way. It ran afoul of a requirement from the Labor Department’s Office of Federal Contract Compliance Programs that contractors hire not just the right proportions of blacks and women, but correct proportions of whites and men too. After determining this year that the company's hiring numbers in Texas were off, it told Landcare to offer jobs to 21 white men who applied but were not hired, as well as to nine women and 15 African-Americans.
As with all other hiring violations made public by the office this year, it cited no direct evidence of discrimination. This violation was based purely on the numbers. Edwin Nieves, a Labor Department spokesman, confirmed individual procedures of the agency but declined a request for an in-depth interview about its seemingly against-the-grain policies and their legal rationale.
Asked to comment on what RealClearInvestigations found in reporting on the office, Roger Clegg, president of the Center for Equal Opportunity, a think tank critical of affirmative action, recognized the oddity that government “bean counting” can result in hiring preferences for whites and men. But, he said, the Landcare example is an aberration. “By and large the purpose of these regulations is to push employers to engage in politically correct discrimination in favor of minorities and women,” Clegg said.
All federal contractors must show efforts to diversify their workforces, and larger companies with larger contracts must create “affirmative action programs.” Such efforts identify the potential pool of qualified applicants for race, sex and ethnicity, and then compare these numbers with a company’s hires. If that result is, according to the government’s language, “less than would reasonably be expected,” the company has to set a hiring goal.
According to human resources professionals, what this really means is that companies must make an effort to hire in exact proportions to the available labor pool. For example, if 10 percent of the employees in a certain division are women, but population statistics say twice that many women could do the job, then the firm can risk losing its government contract if it doesn’t try to hire more women to meet the higher percentage.
Although such practices sound like quotas, which the Supreme Court has deemed illegal except in extreme cases of discrimination, federal regulators and supporters of affirmative action policy proponents insist that they are not.
Hilary O. Shelton, senior vice president for advocacy and policy at the NAACP, said that unlike quotas, “goals and timetables are much more flexible.” If a company’s goal is to hire 10 percent more women, it will not necessarily lose its contract simply for missing its goal. However, it must demonstrate that it is making an effort.
To enforce these hiring goals, along with laws prohibiting discrimination against veterans and the disabled, the Office of Federal Contract Compliance Programs in 2017 had 563 employees and a budget of $104 million.
Between 2014 and 2018, the agency completed over 9,800 investigations based on complaints and evaluations. In 2017, such investigations resulted in over $23.9 million in compensation for victims of discrimination, according to the office’s congressional budget justification.
“You better plan on [being audited],” said Carolyn Alexander, president of Easy AAP, a company that sells software to help contractors create affirmative action programs. "It’s like when you do your taxes.”
Complying with the regulations is so complex that many companies hire consultants to craft affirmation action programs for them. An industry of human resources professionals has sprung up to help businesses determine which racial or gender groups they need to try to hire.
Frequently, businesses “don’t have the time to write an [affirmative action plan],” said Angela Rao-Brown, executive vice president of Effective Resources Inc., a human resources company. “They don’t have the know-how.”
'They're Gonna Cave'
A company must find out whether there is a discrepancy between the race/ethnicity of its workforce and that of the labor pool. What counts as the labor pool can vary by job category – one of the many complicating factors that prompt many businesses to outsource affirmative action to professionals.
But without resorting to quotas, contractors risk suffering a financial penalty because of government-mandated hiring preferences – even for men and whites. When under federal scrutiny, companies without the right numbers may be accused of discrimination. Although they can fight the charge, it often makes better business sense just to do as they’re told, even if that means paying large settlements and giving preferences to certain groups in their hiring.
Contractors are told: “We’re the federal government, we don’t like your numbers, you’re gonna lose your contract if you don’t get your numbers right,” said Clegg. “In the vast majority of cases they’re gonna cave.”
Human resources professionals agree that having the wrong numbers is a serious concern. “[The OFCCP] will push it pretty far with just the stats,” said Allen Hudson, chief operating officer of HudsonMann, an affirmative action consulting company.
The OFCCP’s records show no direct evidence of discrimination in any the 17 hiring violations that it made public in 2018. In 13 of these cases, the office cited only statistics as evidence. And four times where the government mandated race- or sex-based hiring preferences, they were in favor of whites or men.
There are some indications, though, that affirmative action enforcement may be slowing down under the Trump administration. For 2019 the OFCCP requested a budget of $91 million, and 450 employees. This would be about $13 million and 150 fewer employees than in 2017.
But with a conservative Supreme Court majority, there may also be legal barriers. If a law requires racial preferences or quotas, said George Mason law professor Ilya Somin, it would very likely be struck down, particularly if Brett Kavanaugh or another conservative is ultimately confirmed for the remaining spot on the high court. Currently it is unclear if the policy and enforcement are constitutional. “I am not aware of the Supreme Court ever hearing a case [about this policy]” said Somin.
Supporters are confident that the policy is constitutional and insist that goals and timetables are crucial for increasing diversity. Not everyone agrees. “They are also bad policy,” said Clegg. "It’s unfair and divisive and inefficient to hire by the numbers.”
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