The U.S. Supreme Court ruled last Thursday in Students for Fair Admissions v. Harvard, No. 20–1199 (2023) that Harvard and the University of North Carolina’s race-conscious admissions policies violate the Constitution in a split 6-3 ruling condemning affirmative action in higher education. The case overturned Grutter v. Bollinger, 539 U. S. 306 (2003) and ended all affirmative action for college admissions except for military academies. The funny thing is that in both cases,...

Whether or not the Harvard affirmative action case impacts corporate DEI programs is unlikely to be known until the decision comes down in June.  The issue with the Harvard case before the Supreme Court is about proportional representation in student admissions under the guise of diversity for the student body.  The Court is likely to rule against Harvard and the University of North Carolina. They are also likely to overturn the University of Michigan law school case that was...

In a misguided argument for increased efficiency in audit, the OFCCP issued a new directive on March 31, 2022, to rescind the former Transparency Directive (DIR 2018-08) and three others under the previous administration (DIR-2018-06, DIR 2020-02, and DIR 2021-02).  

On Monday January 24, 2022, the U.S. Supreme Court decided to take up the Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina cases, both affirmative action cases concerning the admission processes and policies of private (Harvard) and public (University of North Carolina) universities.  The Harvard case went through a trial and review by the 1st U.S. Appellate Court whereas the University of North Carolina (UNC)...

August 31, 2021, the Office of Management and Budget approved the Office of Federal Contract Compliance Programs’ (OFCCP) information collection request for the Affirmative Action Program Verification Interface, through a new online portal, referred to as the Contractor Portal. Covered federal contractors and subcontractors (“contractors”) must use this portal to certify, on an annual basis, whether they have developed and maintained an affirmative action program for each...

A Massachusetts federal court judge ruled against the anti-affirmative action coalition suing Harvard over its admissions standards.  The coalition Students for Fair Admissions or SFFA argued that Harvard’s process discriminated against Asian-American applicants because of a subjective personal rating through which those applicants received lower scores due to racial bias.   In effect SFFA argued that the president and fellows of Harvard College violated Title VI of the...

In Nov. 2014, the Students for Fair Admissions (SFFA) filed a complaint alleging that Harvard is “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program.”  The complaint alleges that Harvard uses racial quota and balancing in its admission process, which in particular adversely impacts Asian American applicants.  The admission standard for Asians, SFFA argues, is a higher one than other...

Should employers ask applicants to self-identify for disability?  The Office of Federal Contract Compliance Programs (OFCCP) definitely says yes for federal contractors.  More specifically, the new disability regulations which were effective March 24, 2014 require under §60-741.42 that all contractors shall invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability.  The OFCCP then established a workforce...

A current question before the Trump Administration is whether the OFCCP has outlived its usefulness.  The Heritage Foundation rightly asks whether there is a need for the OFCCP given that many of its current initiatives are the purview of other agencies. Moreover, there is a real question of the effectiveness and ROI of the agency. 

Upon a request by Congress, the General Accounting Office (GAO) conducted an audit on the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) activities for the past six years.  OFCCP is charged with ensuring that about 200,000 federal contractor establishments take affirmative action to provide equal employment opportunities for certain protected classes of workers. A number of complaints arose from the federal contractor community that reached...

The Supreme Court, in a surprising 4-3 decision - Justice Kagen had recused herself - upheld university admission affirmative action programs.  While this is a crucial decision that affects colleges and universities, it is not likely to directly impact employers.

Generally when two or three candidates are in the final round of interviews, the question usually is not whether they can do the job but whether they can be successful in the organization.  Every culture is different, but the determination of “fit” is a subjective one.  Because of that subjectivity it is usually a terrible defense in a failure-to-hire case. Abrams, an African-American male, joined the Connecticut Department of Public Security (DPS) in 1986. In 1990, he...

Changes to Cafeteria plans and opting out by employees: The Internal Revenue Service has issued Notice 2014-55 which proposed amendments to Regulations Sec. 1.125-4 to define two sets of circumstances under which employees can revoke their election of employer-sponsored coverage under a cafeteria plan and purchase a qualified health plan through an exchange. The first situation involves a participating employee whose hours of service are reduced so that the employee is expected...

On Wednesday October 1st, the Office of Federal Contractor Compliance Programs (OFCCP) released the new audit scheduling letter approved by the Office of Management Budget (OMB). The new scheduling letter and Itemized listing now has 22 Items to report on, up from 11 in the 2008 Scheduling Letter. The letter will request submission of the AAP and supporting documentation by electronic means, but hard copies can still be sent in.  If the data is maintained electronically, it must be...

On October 1, 2014, the DOL announced final rules for the $10.10 minimum wage for federal contractors as required under  Executive Order 13658.  The EO, which the President signed February 12, 2014, requires that the hourly minimum wage paid by contractors to workers on covered contracts with the federal government be at least (1) $10.10 per hour, beginning January 1, 2015; and (2) an amount determined by the Secretary of Labor, beginning January 1, 2016, and annually...