[Congressional Record Volume 142, Number 13 (Wednesday, January 31, 1996)]
[Senate]
[Pages S665-S666]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FEDERAL CONTRACTORS AND AFFIRMATIVE ACTION

 Mr. SIMON. Mr. President, the Federal Government has played an 
important role in promoting equal opportunity in employment by Federal 
contractors for the past 55 years. Current Federal policy requires 
contractors to review their own hiring practices for any intentional or 
unintentional discrimination. Academic studies show that enforcement of 
these policies has led to increases in hiring of ethnic minority and 
female workers and that these programs continue to have a positive and 
significant impact on remedying discrimination in the workplace.
  The Federal affirmative action guidelines not only benefit workers. 
Employers have found that affirmative action programs help them to 
ensure that they locate and select the best qualified candidates from 
an expanded talent pool. Companies also report that a diverse work 
force leads to enhanced performance and productivity.
  There is always room for improvement, however. A Labor and Human 
Resources Committee hearing last June 15 suggested that some 
contractors are not aware that their progress in achieving recruitment 
goals is lagging behind industry or regional norms unless or until they 
are selected for a compliance review. Witnesses also raised several 
concerns about the burdens some regulations may impose on the 
businesses--particularly paperwork.
  Shortly after the hearing, my colleague from Michigan, Mr. Abraham, 
and I wrote to Shirley J. Wilcher, the Deputy Assistant Secretary of 
Labor who oversees the Office of Federal Contract Compliance Programs 
(OFCCP). We suggested that OFCCP develop a way of providing employers 
with earlier indications that their progress toward compliance with 
affirmative action guidelines should be reviewed for possible problems. 
We also requested that they meet with representatives from contracting, 
consulting, and other constituent groups to review OFCCP regulations 
and to suggest how they may be improved upon or eliminated.
  I am pleased to report that OFCCP has made significant progress 
toward resolution of many of the complaints raised at the hearings. 
They have developed strategies to ensure that compliance officers are 
consistent and uniform when administering and enforcing laws and 
regulations. They are creating a technical assistance manual that will 
allow contractors to develop affirmative action plans without retaining 
expensive law firms or consultants. They have clarified the 
relationship between OFCCP and the Equal Employment Opportunity 
Commission to ensure that employers are not subject to duplicative, 
inconsistent, or unnecessary regulatory burdens.
  OFCCP officials have had substantive discussions with a variety of 
constituent groups. These meetings will likely lead to regulatory 
reforms that will reduce paperwork, reduce the time involved in 
developing written affirmative action programs, and establish practical 
reporting requirements without undermining OFCCP's mission. They are 
also considering the development of an early alert system that would 
provide contractors with feedback on progress before the need arises 
for a full compliance review.
  I commend Deputy Assistant Secretary Wilcher for the progress she has 
made. I encourage her and her colleagues to continue to work toward 
these important changes.
  I ask that Ms. Wilcher's written response be printed in the Record.
  The material follows:
         U.S. Department of Labor, Employment Standards 
           Administration, Office of Federal Contract Compliance 
           Programs,
                                Washington, DC, December 15, 1995.
     Hon. Paul Simon,
     U.S. Senate, Washington, DC.
       Dear Senator Simon: On June 27, 1995, following the Labor 
     and Human Resources Committee's hearing on the Office of 
     Federal Contract Programs (OFCCP), you wrote to suggest some 
     actions that I might take to respond to the concerns of the 
     agency that were highlighted in the hearing testimony. This 
     letter responds to your request that we report by December 
     15th on the progress we have made toward reducing the 
     contractors' compliance burdens and improving OFCCP's 
     performance. I appreciate the opportunity to report on our 
     efforts.
       Since coming to OFCCP in February 1994, I have been 
     committed to pursuing a fair enforcement strategy. Over the 
     past several months, I have heard the concerns about the 
     internal program management and administration of the 
     contract compliance program. As noted in your letter, several 
     of the witnesses at the June hearing voiced concerns about 
     the time involved in preparing affirmative action programs; 
     the use of goals as rigid quotas; inconsistency in 
     interpretation and application of the regulations; and 
     duplication of efforts with the Equal Employment Opportunity 
     Commission (EEOC). Because these issues seriously affect our 
     ability to administer and enforce the equal employment 
     opportunity requirements in a manner consistent with our fair 
     enforcement approach, we have taken actions to address each 
     of these concerns.
       Several measures have been taken to ensure that compliance 
     officers are consistent and uniform when administering and 
     enforcing our laws and regulations. First, in order to clear 
     up any confusion about how affirmative action works under 
     Executive Order 11246, on August 2, 1995, the agency issued a 
     policy directive on ``Numerical Goals under Executive Order 
     11246.'' The directive reaffirms OFCCP's longstanding policy 
     that affirmative action program goals are not to be used as 
     quotas which must be achieved through race-based and gender-
     based preferences.
       Rather, as the policy directive explains, goals under 
     Executive Order 11246 are to be used as a tool to aid in 
     breaking down barriers to equal employment opportunity for 
     women and minorities without impinging upon the rights and 
     expectations of other members of the workforce.
       Additionally, we provided enhanced training to the staff; 
     conducted several accountability reviews of regional and 
     district office operations; and implemented a customer 
     service improvement plan. Further, we are establishing the 
     position of ombudsperson to handle contractor and constituent 
     complaints about the program and actions of compliance 
     officers. The person assigned to the position will be 
     responsible for outreach, public education and alternative 
     dispute resolution.
       In response to complaints about the time and expense 
     associated with developing an affirmative action program, in 
     FY 1995 OFCCP began work on developing a comprehensive 
     compliance assistance program, which will include a technical 
     assistance or ``how to'' manual. The agency has not had an 
     effective public educational component or a ``user friendly'' 
     technical assistance manual. As a result, small and newly 
     covered contractors feel obligated to retain law firms and 
     consultants to assist them in developing a written 
     affirmative action program. Our goal is to increase technical 
     support to Federal contractors by establishing programs that 
     expand training about our regulatory requirements and enhance 
     voluntary compliance.
       In light of the concerns that OFCCP and EEOC are 
     duplicating work, OFCCP and EEOC have examined the 
     interagency coordinating mechanisms that were established to 

[[Page S666]]
     ensure that employers are not subject to duplicative, inconsistent, or 
     unnecessary regulatory burdens. OFCCP and EEOC staff 
     routinely communicate on issues of mutual interest and 
     concern. This coordination is prescribed in Executive Order 
     12067, the 1981 Memorandum of Understanding between DOL and 
     EEOC, and Title I of the Americans with Disabilities Act of 
     1990 (ADA). EEOC and OFCCP have issued joint regulations 
     which delineate the respective responsibilities for 
     processing complaints that are within the jurisdiction of 
     both the ADA and Section 503 of the Rehabilitation Act of 
     1973. Further, employers generally are not subject to 
     simultaneous or dual enforcement proceedings by OFCCP and 
     EEOC. In the rare instance where both agencies may 
     investigate or seek enforcement against the same employer, 
     one of the agencies defers to the other, or the matter is 
     handled on a joint basis by OFCCP and EEOC.
       As you suggested, between August and October, we held 
     meetings with representatives of the employer and 
     constituency groups to discuss proposals to revise the 
     regulations under the Executive Order program. We met 
     separately with representatives of the following employer 
     groups: the Society for Human Resource Management (SHRM), the 
     Equal Employment Advisory Council (EEAC) and the 
     Organization Resources Counselors, Inc. (ORC). We also met 
     with representatives of civil rights and women's rights 
     organizations. These recent meetings with OFCCP 
     stakeholders were the latest in a series of consultations 
     on regulatory reforms that began in April 1994 in 
     connection with an earlier proposal to revise certain of 
     the provisions in the Executive Order regulations. OFCCP 
     also convened four partnership meetings outside of 
     Washington with several hundred representatives from the 
     contractor and constituent communities in the Spring of 
     1995. The purpose of the meetings, which were held in 
     Dallas, Pittsburgh, San Diego, and Chicago, was to elicit 
     recommendations for changing the regulatory requirements 
     for written affirmative action programs and the procedures 
     for evaluating a contractor's compliance with the 
     regulatory requirements. The participants at the 
     partnership meetings were also asked to suggest data 
     requirements for a proposed affirmative action program 
     summary format.
       We have identified a number of issues we would like to 
     change through regulatory reforms. OFCCP staff is in the 
     process of drafting rulemaking proposals to effect the 
     contemplated revisions to the regulations. These consultative 
     meetings not only are required by Executive Order 12866, 
     which requires agencies to involve the public in proposed 
     rulemaking, but also have been an integral part of OFCCP's 
     established rulemaking practices. The discussions with our 
     stockholders have been worthwhile and productive. In 
     addition, we are examining whether some of the issues raised 
     during the consultations can be addressed through policy 
     guidance or other kinds of programmatic changes.
       Our overall objectives are to reduce paperwork, reduce the 
     time involved in preparing a written affirmative action 
     program, and establish practical reporting requirements 
     without undermining the ability of OFCCP to be an effective 
     enforcement agency. Further, revising the compliance review 
     procedures would enable OFCCP to better focus its limited 
     resources while reaching a greater percentage of the 
     contractor universe than it currently reaches.
       Finally, the agency also intends to prepare annual 
     monitoring reports by geographic area and industry to track 
     how different industries are performing. You also recommended 
     that we develop a way of providing contractors early 
     indications of compliance problems. We are considering the 
     concept of an ``early alert system'' to give a contractor 
     advance notice of potential deficiencies so that the 
     contractor would have the opportunity to ``self-correct'' and 
     thereby lessen (if not obviate) the need for a full 
     compliance review. Such an alert system could assist the 
     agency in targeting its limited resources. Accordingly, we 
     are trying to determine the feasibility and administrative 
     costs involved.
       Again, thank you for the opportunity to provide an update 
     on our efforts to develop and implement changes to the 
     Executive Order program.
           Sincerely,

                                           Shirley J. Wilcher,

                                    Deputy Assistant Secretary for

     Federal Contract Compliance.

                          ____________________