Since the Harvard case before the U.S. Supreme Court that struck down preferences in admissions at universities, a Gallup study followed up on American’s views on the use of affirmative action in decision-making.  A Gallup Center on Black Voices survey found that about two in three Americans (68%) say that stopping the use of race and ethnicity in university admission decisions is “mostly a good thing.”

A case was argued last month before the Supreme Court, Muldrow v. City of St. Louis No. 22-193 out of the 8^th Circuit, which asked the question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?”  It should have been an easy case.

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...

The Office of Federal Contract Compliance Programs issued its proposed regulations for an Annual Equal Pay Report on August 8th.   These proposed regulations were required as directed by the Presidential Memorandum — Advancing Pay Equality through Compensation Data Collectionthat President Obama signed on April 8th.  The regulations run only five pages but include over 146 pages of discussion.  The following is a very brief summary of the proposed...

On July 31, President Obama signed a new Executive Order (EO) on Fair Pay and Safe Workplaces that will affect federal contractors and potential federal contractors for construction and supply and services contracts over $500,000. The White House touts the EO as a means to use only those contractors who are “clean,” meaning they have not committed violations of any of a variety of laws over the past three years. But it will place HR departments in a very difficult...

Two weeks ago everythingpeople.™This Week! suggested that if the U.S. Supreme Court ruled against Hobby Lobby’s religious objection to covering certain forms of birth control in its group health plan, the question would probably go away permanently. Many HR departments would breathe a collective sigh of relief. But if it ruled in favor of Hobby Lobby, the potential for those HR departments’ jobs to become a lot more complicated could go up considerably. On...

ou would think employers would be smarter in this day and age. All of the following occurrences actually happened, although as HR professionals you may have a hard time believing they did. But trust us—they were (some still are) real EEO cases. Think about what you would have done to prevent them or to put a permanent stop to them. And while you roll your eyes at how dumb some allegedly bright people can be, don’t forget—thank you, Donald Sterling—they’re still...

It is fair to say that standards for respectful behavior in the workplace today are generally higher than they were a generation ago. Credit anti-discrimination laws, more diversity, and proactive training practices for that change. One result is that to combat discrimination in the workplace today, HR can focus more on root causes of bias than reactive training. A recent study out of MIT and the University of Chicago, widely reported in the press, involved sending out the same resume with...

By striking down the Defense of Marriage Act (DOMA) provisions, the Supreme Court has upheld lesbian, gay, bisexual, and transgender (LGBT) rights in many major areas of the law. Single individual gay persons may adopt in all 50 states and the District of Columbia, although there are fewer states where they may adopt children jointly with their partners.  Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James...

Last week in Lansing, Rep. Fred Durhal Jr. (D-Detroit) introduced a “Ban-the-Box” bill in the House. HB 4366, if it were to become law, would prohibit employers from asking on their application forms if a prospective hire has a felony record. As reported in everythingpeople.™ This Week! and elsewhere in the last several months, the purpose of such a law is not to prohibit employers from finding out about the past transgressions of such applicants, or...

The Dodd-Frank act, conceived as a hammer to keep the excesses of the financial industry in check, also seeks to promote diversity in a non-diverse environment. One of it requirements is that each of the 30 federal financial agencies and departments, including the Securities and Exchange Commission and all 12 Federal Reserve banks, must establish an Office of Minority and Women Inclusion. Each office will be responsible for developing standards for equal employment opportunity and...