U.S. Commission on Civil Rights

Funding Federal Civil Rights Enforcement: 2000 and Beyond

Chapter 3

Office of Federal Contract Compliance Programs, U.S. Department of Labor

In 1965 President Johnson issued Executive Order 11246,[1] which directs federal departments and agencies to include nondiscrimination and affirmative action requirements in all federal contracts, including federally assisted construction contracts. Pursuant to that direction, the Secretary of Labor created the Office of Federal Contract Compliance within the U.S. Department of Labor (DOL), which was later renamed the Office of Federal Contract Compliance Programs (OFCCP).[2] Initially, enforcement was carried out by the various contracting agencies, under the direction of OFCCP. In 1978 the entire federal contract compliance program was consolidated into DOL, transferring the compliance activities of 11 agencies to OFCCP.[3]

ENFORCEMENT AUTHORITY

The enforcement authority of OFCCP encompasses several statutes in addition to Executive Order 11246, and the scope of that authority has expanded over the years. In 1972, Congress extended the nondiscrimination and affirmative action requirements for federal contractors to include Vietnam-era and special disabled veterans.[4] In the next year, Section 503 of the Rehabilitation Act of 1973[5] added a requirement that covered government contractors engage in nondiscrimination and affirmative action for qualified individuals with disabilities.

In 1990, OFCCP was assigned to share responsibility for enforcing the EEO requirements in apprenticeship and training programs with DOL's Bureau of Apprenticeship and Training.[6] OFCCP also has enforcement responsibilities under the Immigration Reform and Control Act of 1986 (IRCA),[7] Title I of the Americans with Disabilities Act of 1990,[8] and the Family and Medical Leave Act of 1993.[9]

In FY 1998, for example, the federal government contracted with approximately 200,000 worksites employing more than 28 million workers.[10] Under Executive Order 11246, federal contractors are subject to antidiscrimination and affirmative action requirements provisions in the performance of any contract for more than $10,000, or if they have several contracts whose aggregate value is more than $10,000. In addition, employers with 50 or more employees and a contract of $50,000 or more must prepare and annually update a written affirmative action program (AAP). Special rules apply to construction contractors, who are prohibited from discriminating and must take specified affirmative action steps in the performance of any contract in excess of $10,000. With respect to disability discrimination, coverage applies to any single contract in excess of $10,000, and for the disabled and Vietnam-era veterans program, contracts of $25,000 or more are subject to these requirements.[11] Under both laws, contractors with 50 employees and a $50,000 contract must maintain written AAPs.

ENFORCEMENT PROCEDURES

The enforcement activities of OFCCP focus on the following areas: (1) conducting compliance reviews and investigating complaints; (2) negotiating conciliation agreements and letters of commitment from contractors and subcontractors who are in violation of regulatory requirements; (3) monitoring contractor compliance and compliance reports; (4) forming links between contractors and DOL job training programs; (5) providing technical assistance to aid contractor understanding of and compliance with federal nondiscrimination requirements; and (6) recommending enforcement actions to the Solicitor of DOL, its chief legal officer.[12] A majority of the enforcement time is devoted to complaint investigations and compliance reviews. If voluntary compliance cannot be achieved, OFCCP has several options: (a) continue conciliation efforts with the contractor; (b) refer the matter to the Solicitor of Labor to institute formal, administrative enforcement proceedings; or (c) refer the case to the Attorney General for the appropriate litigation.[13]

BUDGET ANALYSIS

The Commission noted in its 1995 report on federal funding for civil rights enforcement, that after 1978, when the compliance activities of 11 agencies were consolidated into OFCCP, resources provided for OFCCP steadily dropped.[14] Unfortunately, OFCCP s budget did not improve significantly until FY 1997. In accordance, staffing levels fell between FY 1994 and FY 1997 and have not returned to FY 1994 levels. Limited resources and the decline in available FTEs appear to have affected the amount of compliance activity, the quality and results of such activity, and the ability to conduct more systemic compliance reviews.

Budgets

Although OFCCP's budget requests have increased almost 38 percent in actual dollars since FY 1994, Congress has consistently appropriated an amount lower than what was requested (see table 3.1). Although OFCCP s budget has increased 15.8 percent in real terms since FY 1994, this increase has not been consistent. Between FY 1994 and FY 1997, Congressional appropriations decreased by 2 percent in real terms (see table 3.2).

While OFCCP has experienced an increase in funding since FY 1997, the agency's budget may not keep up with inflation in the future. For example, the FY 1999 request was lower than the FY 1998 request in both actual and real terms (see table 3.1 and figure 3.1). Further, in both actual and real dollars, the President's FY 2001 request is below the FY 2000 request.

FIGURE 3.1
DOL/OFCCP Funding History (in constant 1994 dollars)

Source: Executive Office of the President, Office of Management and Budget, Budgets of the United States Government, 1994 1997, appendix; OFCCP, Budget Request for FY 1996 2001; Executive Office of the President, Office of Management and Budget, fax, Dec. 21, 2000.

Staffing and Workload

The actual FTE level declined 7.4 percent between FY 1994 and FY 1999, from 785 FTEs to 727 FTEs (see table 3.3 and figure 3.2).[15] Meanwhile, the most dramatic decline occurred between FY 1994 and FY 1997, resulting in a 9.3 percent decrease in FTEs. That number of FTEs was the lowest number of staff that OFCCP had had in the past two decades.

FIGURE 3.2
DOL/OFCCP Staffing History

Source: OFCCP, Budget Requests FY 1996 2001; USCCR, 1995 Budget Report.

These budget and staffing reductions come at a time when OFCCP's enforcement responsibilities have expanded. Along with obligations brought on by Title I of the ADA, a Memorandum of Understanding (MOU) exists with EEOC that authorizes OFCCP to negotiate for damages under the Civil Rights Act of 1991.[16]

During this period of reduced funding and staffing, OFCCP complaint resolutions steadily decreased (see table 3.4). In FY 1999, OFCCP resolved 489 fewer complaints than in FY 1994, a decrease of 61 percent. Moreover, OFCCP resolved fewer complaints in FY 1994 than in any of the 13 preceding years. Specifically, the FY 1994 figure was 69 percent smaller than the FY 1982 figure of 2,589 complaint resolutions.

While complaint resolutions have been diminishing, the actual number of compliance reviews conducted by OFCCP initially declined during this period of decreased funding and staffing (see table 3.4). Compliance reviews decreased 17 percent between FY 1994 and FY 1996, a year in which the number of compliance reviews reached an all time low of 3,476. However, OFCCP was able to increase its compliance workload by 1999 despite continued inadequate staffing levels. This rise was partly attributed to the growing workload demands resulting from glass ceiling issues being incorporated into compliance reviews.[17] Still, compliance enforcement must increase considerably to meet the average levels of the past decade.[18]

In spite of this recent rise in compliance activity, decreases in staff and complaint investigations have adversely influenced the effectiveness of OFCCP's work (see table 3.5). In FY 1994, the number of individuals receiving backpay awards totaled 10,986, the highest number of recipients in the past two decades. However, that year the amount of relief received by those individuals was significantly lower than the amount of backpay awarded in FY 1989.[19] By FY 1996, the number of people receiving relief fell to 4,203 as did the total value of benefits. In the years since, numbers of recipients and their benefits have remained substantially lower than the FY 1994 figures.

Summary

The request for FY 2001 asks for an increase of 86 FTEs over the FY 1999 staff level. At this funding level, OFCCP expects to devote 523 FTEs as compliance officers, resulting in an increase in enforcement activities.[20] In the face of a heavy workload, staffing enhancements are necessary if OFCCP is to adequately address the persistent problem of discrimination in the workplaces of federal contractors.