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Office of Federal Contract Compliance Programs (OFCCP)

THE NEW YORK COLLABORATION FOR WOMEN IN CONSTRUCTION'S
WORKING ON EQUAL TERMS: A SUMMIT ON WOMEN IN CONSTRUCTION

OPENING REMARKS BY PATRICIA A. SHIU, DIRECTOR
Office of Federal Contract Compliance Programs – U.S. Department Of Labor

Cornell Industrial Labor Relations School – Conference Center
16 East 34th Street – New York, New York
Monday, March 18, 2013 – 4:30-6:00 PM

Thank you and good afternoon.

We meet at a critical time in our history, when our economy is recovering from the greatest setback it has faced since the Great Depression. And as we continue on the path to recovery there is much good news to share. Very good news.

OFCCP Director Pat Shiu

OFCCP Director Pat Shiu
opens the Working on
Equal Terms Summit in
New York, New York on
March 18 - Photo by
Joan Roth

For three straight years now, our economy has added private sector jobs every month – that's a total of 6.35 million jobs. Unemployment has fallen to its lowest level since just before President Obama took office.

In the last two years, the construction sector has added 306,000 jobs – half of that increase happened in the past five months. And while there is much more we need to do, there is no denying that we are moving in the right direction.

So, when I say that the timing of this gathering is critical, it's because the valve is opening again. Jobs are beginning to flow at an ever-accelerating pace. And, if I may use just one more construction-related pun, it's time to strike while the iron is hot.

The question before us today is: what kind of recovery will this be? Will it be one that simply returns us to where we were before 2008? Will the sort of record-breaking numbers we are seeing on Wall Street right now actually have a positive impact on the lives of most Americans? Will we end up repeating the mistakes that got us into this mess in the first place?

Or, will the sobering experience of the Great Recession finally move us in a new direction, one which prioritizes greater opportunity for all our citizens, a true rising tide that expands and strengthens the middle class?

If the definition of insanity is doing the same thing over and over again and expecting a different result, are we, at long last, prepared to do things differently now?

That is the central question before us today. It's why this conversation is so important.

 


 

So, I want to begin by thanking Francoise Jacobsohn from Legal Momentum, Marge Ives from the Women's City Club of New York and Bev Neufeld from New York Women's Agenda for inviting me to join you today.

It is a special privilege to share the stage with Esta Bigler who has been a leading voice in the effort to bring real opportunity for women in the construction trades.

Finally, I want to commend all the summit organizers for the partnership you have undertaken to make this event possible. This sort of collaborative effort should serve as a template for how we work together to close the employment gap for women in the construction industry.

 


 

When President Obama appointed me to head the Office of Federal Contract Compliance Programs, I made a deliberate choice to prioritize our enforcement of equal opportunity laws in construction. After all, with jurisdiction over almost every federal and federally-assisted construction contractor and subcontractor, we are uniquely situated to ensure that these jobs – these good jobs – are within the reach of qualified women and minorities who seek them.

But it didnít take long before I started hearing from some of my stakeholders – and even some well-meaning colleagues – that maybe I should "slow-walk" this effort. I was advised to be sensitive to the fact that unemployment in the building and construction trades was skyrocketing and a national dialogue about getting more jobs for women and people of color might be ill-timed and poorly received.

In other words, I was hearing, "Hey, times are tough all over" and "misery doesn't love company."

However, civil rights are predicated on the belief that there is never a wrong time to do the right thing.

Bringing about an end to systemic, pervasive and persistent discrimination is absolutely the right thing to do. In fact, itís the reason OFCCP was created in the first place.

Our role is to facilitate success:

  • Success for the workers who just want their fair shot at getting, keeping and succeeding in a good job;
  • Success for the employers who understand that government contracts are profitable, profit sustains business, business feeds economic growth and economic growth depends on harnessing the skills, talents and ingenuity of ALL workers; and
  • Success for government agencies that depend on our contractors to construct everything from bridges to buildings and byways. We need those businesses to get the job done on time, on budget and with respect for our shared values.

At OFCCP, we believe that our success is intrinsically tied to the success of our stakeholders. Facilitating their success is integral to our efforts at protecting workers, promoting diversity and enforcing the laws which demand that taxpayer dollars never be used to discriminate.

So, when I hear, "not now," it doesn't sit right with me. It's not part of our vision at OFCCP and it certainly doesnít facilitate anyoneís success. As the great civil rights icon Dr. Dorothy Height used to say, "If the time is not ripe, we must ripen the time."

 


 

The goals we have been trying to achieve for women in the construction industry have been on the books for more than three decades. Through good economic times and bad, we have encouraged and pleaded with and cajoled employers to open doors of opportunity to all qualified workers and to treat their workers fairly on the job.

It's not only the right thing to do, it's also the law.

So, three-and-a-half years ago, we began developing a plan to move the ball forward. And by "we" I want to make it clear that Iím joined in this effort by the entire OFCCP senior leadership team as well as our staff of nearly 800 men and women in offices across the country.

OFCCP Director Pat Shiu with Diana Sen, Donna Lenhoff and Sam Maiden

Director Shiu, Regional Director Diana Sen,
Senior Civil Rights Advisor Donna Lenhoff
and Northeast Deputy Regional Director
Sam Maiden represent OFCCP at the Working
on Equal Terms Summit | Photo by
Joan Roth

I'm pleased to be joined here today by three of my senior staff:

  • Donna Lenhoff, who doesn't need any introduction in this crowd, is my Senior Civil Rights Advisor and our agencyís lead on this issue; and
  • Diana Sen is our Regional Director for the Northeast Region, based here in New York City. She joined OFCCP in December after many years working in civil rights advocacy with a particular focus in the Latino social justice movement.
  • Sam Maiden serves as Deputy Regional Director for the Northeast.

I am also pleased that Rob Angelo is here with us. Rob is the Secretary of Labor's representative to this region of the country.

Thank you all for being here.

Unlike other worker protection agencies, the majority of OFCCP's investigations come in the form of audits. Each year, my compliance officers review about 4,000 contractor establishments to verify that companies are complying with both the non-discrimination and affirmative action requirements they agreed to when they accepted their government contracts.

In the year that I arrived at OFCCP, only 238 of those reviews were of construction firms. The year before that, it was 204.

How on earth can we find a problem, let alone solve it, if we arenít at least looking for it?

So, we immediately set about doubling the number of construction reviews conducted by OFCCP. That meant reprioritizing our limited enforcement resources, hiring more investigators and providing high-quality training to our compliance officers so they would be prepared to accurately, consistently and thoroughly evaluate construction companies scheduled for a review.

The result is that, over the past three years, weíve been averaging 525 construction reviews per year. And, increasingly, we are focusing our attention on so-called "mega projects" which are generally worth $25 million or more, last more than a year and are expected to have a major economic impact in their communities.

What came as a bit of a surprise is that when we doubled the number of reviews – and focused more attention on mega projects and small or first-time contractors – the number of violations we found nearly tripled, from an average of 111 violations in the three years before I got to OFCCP to almost 300 in the three years since.

Sadly, what didn't come as a surprise is that the rates of violations we are finding in the construction industry continue to be significantly higher than the rates in other industries. Last year, 57% of our construction reviews turned up a violation compared to 33% of supply-and-service establishments.

So, we know we are on to something just by strengthening our enforcement. It's amazing what you will find when you bother to look!

 


 

But looking deeper into the numbers, I noticed that the vast majority of violations we've been finding involve failures to take affirmative action, meaning the "16 Steps" proscribed by OFCCP's regulations. These steps include things like having a robust recruitment program, ensuring harassment-free workplaces, validating any testing that's used in the hiring process, having a written EEO policy, making that policy known and so on.

What we weren't finding was a lot of concrete discrimination. Now, I don't think thatís because there isn't discrimination going on out there. As many of you in this room have told me, discrimination is still a very real problem in the construction industry and, too often, it goes unreported by the victims or undiscovered by worker protection agencies like OFCCP.

It turns out that there are several challenges to finding discrimination in our construction reviews:

  1. Unlike supply-and-service contractors, construction employers are not required to write and maintain Affirmative Action Programs; so, when we start an audit, there is no initial analysis of data on applicant, promotion and termination pools for us to review for indicators of discrimination;
  2. Oftentimes, our evaluations are stymied by employers who don't keep updated source records. We can cite this failure as an affirmative action violation but it hinders our ability to identify actual discriminatory employment practices;
  3. Many construction companies we review have small workforces and the jobs don't last long enough for us to observe and analyze selection activity;
  4. By the time an OFCCP review is completed, the company and its applicants have often moved on to other jobs, making it difficult to achieve one of our key remedies: job offers for workers who were unfairly passed over in the hiring process.
  5. A lack of anecdotal evidence and complaints from workers due to fear of retaliation. We know that in the area of harassment, for example, this sort of evidence is critical to prove discrimination; and
  6. Complexity of the patterns of discrimination due to the fact that workers are given multiple short term assignments within a single project. That means a cookie-cutter approach to looking at pay discrimination, for example, just won't work.

These challenges are significant and they point to the fact that we need a multi-prong strategy to tackle this issue.

 


 

I believe that the key to getting more women and minorities in the construction trades is strong enforcement. And the key to strong enforcement is sound policy, updated regulations and a collaborative effort by government, industry and advocates to connect workers with available jobs.

Leah Rambo and Wendy Webb with a group of NY-area tradeswomen

Leah Rambo and Wendy Webb (back row, l to r)
with a group of NY-area tradeswomen at the
Working on Equal Terms | Photo by Joan Roth

In my conversations with many of you, we have focused extensively on the regulatory aspect of this work. And we remain committed to updating and revising our construction regulations to make them look like the world in which they are implemented, not the world in which they were first written.

In particular, the goal for employing women in the construction industry needs to be updated and better explained. After all, what gets measured gets done.

And, while a failure to meet a goal is not a violation in and of itself, it does give us a pretty good starting point to start looking at why the goal wasnít met and whether discrimination played a role.

I understand there is some confusion about this aspect of our regulations; so, I want to make it very clear that the goal for women in construction is currently 6.9%. That goal applies to every position – including apprentices and journeymen.

The goal is not measured by the number of women working at a site or the number of jobs they hold; rather, it is based on the number of total hours worked by women.

And the goal applies to the contractorís entire workforce in the relevant geographic area, not just a single worksite. Thatís to prevent employers from simply segregating all the women or minorities to a worksite thatís being audited by OFCCP in order to game the system.

We're not so easily fooled.

In October of this year, the Department of Labor will publish a notice of proposed rulemaking which seeks to:

  1. Remove outdated provisions in our regulations;
  2. Propose a new method for establishing employment goals for women and minorities in construction; and
  3. Revise the affirmative action requirements to reflect the realities of the labor market and employment practices in the construction industry today.

 


 

While this regulatory fix is long overdue, it won't work without a smart enforcement strategy that is predicated on collaboration and information-sharing.

That strategy includes building a closer working relationship between OFCCP and the federal agencies that oversee most construction contracting in the government, including the General Services Administration and the Department of Transportation.

We are in the process of revising and formalizing agreements with both agencies that will allow OFCCP investigators to get involved in their construction projects early on ndash; at the point when we can bring in advocacy groups, community leaders, local elected officials, labor unions and vocational schools to try and make an impact on the diversity of the workforce.

We are also establishing a partnership with the Office of Apprenticeship in the Labor Departmentís Employment and Training Administration to start thinking more strategically about pipeline programs and figuring out how to forecast the needs for skilled workers based on where we know the federal construction projects of the future are going to be.

We are trying to leverage technology to connect job seekers with construction projects that need their talents. Imagine if youíre a plumber looking for work and not getting called by your union. If we at OFCCP identify that there's a need for your skill set at a GSA building project across town, we should be able get that information to you. There should be an "app" for that. And soon... there may be one available on a Smartphone near you!

There is so much potential for what we can be doing beyond our enforcement and regulatory efforts. I hope we will be able to touch on some of those ideas and hear yours in the discussion portion of our program.

 


 

For now, let me close by saying that we need your help. We all know the realities of what these work sites can be like. Several of you have told me about the fear that women have when it comes to reporting discrimination and harassment.

Our job at OFCCP is to have their backs. But we need you to help give them a voice.

Tell us when there are issues you hear about and let us know where to look.

Consider filing a complaint with us on behalf of a worker who cannot.

Keep monitoring construction sites after the OFCCP review is over. And let us know if a situation that seemed okay is, in fact, problematic.

And when we find violations and seek to make remedies to the victims – including back wages and job offers – help us find them.

Solving this employment gap is going to take dedication. It's going to take a team effort. And itís going to require an all-encompassing approach.

I'm committed to doing our part and I thank all of you for doing yours.

Thank you very much.