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Office of Federal Contract Compliance Programs (OFCCP)

SPRINGBOARD CONSULTING, LLC
2014 DISABILITY MATTERS NORTH AMERICA CONFERENCE

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

Wednesday, April 9, 2014 – 11:15 AM (CDT)
Morgan’s Wonderland – San Antonio, TX

 

Thank you very much, Nadine, and good morning!

It’s good to be here with all of you. I am pleased to be joined today by my colleague Melissa Speer, who serves a Director of our Southwest and Rocky Mountain Region.

It’s good to be here in a “Wonderland” where people with disabilities – and their families – can partake in this ultra–accessible theme park.

“Wonderland” seems like a fitting name for a place that takes us beyond the looking glass and shakes up our conventional notions of what is “normal” and what each of us has the capacity to do to make our society more inclusive.

The values of this park – inclusion, accessibility and empowerment – are the same values that drive our work at the U.S. Department of Labor. I know they are your values. And they are certainly the values of my friend Nadine Vogel.

Nadine has dedicated her life to making the world a better place for people with disabilities. As a mom, as a businesswoman and as an advocate, this mission is personal for her.

It’s personal for me, too. Before I joined the Obama administration, I spent 26 years working as a civil rights lawyer, advocating on behalf of students and workers who simply wanted a way in the door and a chance to succeed. For my clients with disabilities, a place like this wasn’t even in the realm of possibility. They just wanted the ability to go to school, to get a job, to earn a living and to sustain themselves and their families.

They wanted the same dignity, self-respect and self-worth that all of us want.

So, I applaud Nadine and the Springboard staff for their efforts to open doors of opportunity for millions of workers with disabilities – here in the U.S. and around the world. And I commend all of you for your shared commitment to that goal.

This is the story of America. It’s a story of ever-expanding rights, ever-deepening responsibilities and ever-increasing diversity.

Yesterday morning, I watched another chapter of that story unfold.

 


 

I had the honor of joining President Obama at the White House, where he took two major executive actions aimed at closing the pay gap between men and women in our country.

By his side was the unsinkable Lilly Ledbetter, a woman whose fight against pay discrimination took her from a Goodyear tire plant in Gadsen, Alabama, all the way to the steps of the U.S. Supreme Court. And when she found the courthouse doors closed to her, Lilly didn’t give up. In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, ensuring that future Lillys would get their day in court.

Most of us know Lilly’s story. I thought I knew it by heart. After all, I’ve stood with her many times over the past five years and heard her tell it.

But yesterday I learned something new. I learned that the anonymous note Lilly received from a co-worker – the note that finally alerted her to the discrimination she had suffered for 20 years – could have cost that co-worker his or her job. Because Goodyear had strict pay secrecy policies in place, neither Lilly nor her colleagues could talk about what they earned and, thereby, advocate for their own equal pay.

Well, that culture of secrecy is coming to an end.

Yesterday, while invoking Lilly’s story, President Obama signed an Executive Order prohibiting companies with federal contracts – including Goodyear – from retaliating against workers who talk about their pay. In doing so, he lifted the veil of secrecy that has kept too many American workers in the dark about the discrimination could be experiencing with each new paycheck.

The President also issued a directive calling on my boss, Secretary of Labor Tom Perez, to move forward on a proposal to collect data on how federal contractors pay their employees. This data will significantly enhance our ability to identify and correct pay discrimination in the contracting workforce.

As President Obama said yesterday, this is a year of action, a year to ensure opportunity for all and to expand the middle class by supporting working families. From enrolling more than 7.1 million people into Obamacare and raising the minimum wage for thousands of workers to breaking down barriers to fair and equal pay… we are on a roll!

I am proud that the Labor Department is at the center of these efforts.

We are the department of good jobs for everyone. We are the department of opportunity for all. For more than a century, we have held firm to our mission of preparing the workforce of tomorrow while ensuring that today’s workplaces are safe, healthy and fair.

Central to that mission is the work of the Office of Federal Contract Compliance Programs. Yes, it’s a long and cumbersome name, but it’s also a pretty apt descriptor of what we do.

The Office of Federal Contract Compliance Programs is a civil rights agency in the Labor Department tasked with protecting workers, promoting diversity and enforcing the laws which require companies that profit from taxpayer dollars to prohibit discrimination and to take affirmative action so that all workers get a fair shot and a fair shake in the workplace.

 


 

We enforce those laws for the benefit of the nearly one-quarter of American workers who are employed by or seek jobs with companies that receive about $500 billion in federal contracts and subcontracts.

A lot of those workers are your workers. And I know that when I come to gatherings like this, I’m often preaching to the choir. But I like preaching to the choir. It’s fun because the choir sings back at you. We’re usually working off the same sheet of music, you and me.

The tougher part is preaching to the congregation. They’re the ones who came to be saved. In this case, we’re talking about your CEOs. And to save them, I’m going to need all of you to lift your voices and sing in unison.

In the four-and-a-half years since I became Director of the OFCCP, I have spoken with thousands of HR professionals, affirmative action specialists and senior diversity officers from companies that contract with the government. Overwhelmingly, I find you are as committed to the goals of equal opportunity as we are at OFCCP.

I’ve also found that you are – too often – under-resourced, under-staffed and under-valued. When the Great Recession began in 2007 and budgets had to be cut, the brunt of the impact was often felt by the HR divisions of major American corporations. Even companies that have good records on recruiting and retaining women and minorities often saw that those programs were the first to go or to be scaled back.

But I’m here to tell you – and please sing this message back to the powers that be in your companies – that being a federal contractor is a privilege, not a right. The price of that contract is compliance with our civil rights laws. In other words, your diversity and inclusion program is not optional.

Having a written affirmative action program, ensuring robust outreach and effective recruitment, implementing fair hiring and promotion policies, enforcing the rules against harassment and conducting regular analyses of your pay practices to ensure equal pay are the standard we must all meet.

This applies to all of those of us who work in the federal government, and it applies to you.

In my capacity, I will continue to do everything I can to help you make this case to the people who decide what resources you will have to do your work.

At OFCCP, voluntary compliance is always our goal. I’m proud to report that, in 99.8% of our audits and investigations, that’s exactly what we achieve. It’s the reason we spend thousands of hours each year providing free, high-quality and expert technical assistance to any company that wants it.

 


 

But, when all is said and done, we are an enforcement agency. And we will enforce the law.

* * * * * * * * * * * * * * *

Strong, effective enforcement begins with good policy. And when I arrived at OFCCP, I found that our many of our regulations were sorely outdated and in need of updates.

That was especially true when it came to our regulations implementing Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act, known as VEVRAA.

As most of you know, our updates to the Section 503 and VEVRAA regulations became effective on March 24, after an extensive and highly-inclusive rulemaking process that took about four years. We developed these two rules with a set of specific interests in mind:

    First and foremost, to improve employment opportunities for qualified workers with disabilities and protected groups of veterans in the contracting workforce;

    Second, to update outdated provisions in the regulations, including aligning them with the ADA Amendments Act of 2008 and its revised and much broader definition of disability;

    Third, to provide businesses like yours with real metrics by which to measure your affirmative action efforts;

    Fourth, to give my investigators a tangible way to evaluate compliance with the law when they review contractor establishments; and

    Fifth, to facilitate your success by increasing your access to a large, diverse pool of qualified workers whose talents may have been overlooked or left untapped for too long.

I’m going to spend a few minutes talking about some key aspects of the new rules. Then, Nadine and I are going to have a fireside chat with all of you to get your thoughts and take your questions about how to implement and operationalize them.

Real Metrics

First, you should know that these rules are historic because they set – for the first time ever – targeted hiring goals for veterans and individuals with disabilities in the contracting workforce.

As any good business leader knows what gets measured gets done.

To that end, the Section 503 rule establishes an aspirational seven percent utilization goal for the employment of qualified individuals with disabilities in each job category of a contractor’s workforce.

 


 

The VEVRAA rule establishes a national benchmark – currently 7.2 percent – or a more flexible option you can develop using parameters we have laid out.

By our estimation, if every contractor subject to these rules were to achieve the metrics we established, nearly 600,000 people with disabilities and more than 200,000 veterans would be added to or identified in the American workforce. And that’s just in the first year!

Consider what a remarkable achievement that would be – for all of us.

And just so we are clear – and because words matter – both the disability goal and the veteran benchmark are aspirational. Contrary to what some observers have said, they are absolutely not mandatory quotas. Rather, hey are management tools to inform your decision-making and provide real accountability.

A goal is a means to an end. It is not an end in and of itself. If the metrics are not achieved, contractors will be expected to examine their policies and practices to determine whether and where impediments to equal employment exist, and to develop a plan to address any deficiencies.

Failure to hit a goal is not a violation. Failure to try is.

* * * * * * * * * * * * * * *

Voluntary Self-Identification

Another major provision of the new Section 503 rules is the requirement that contractors invite job applicants to voluntarily self-identify as individuals with a disability at the pre-offer stage of the hiring process. This is in addition to the already existing requirement that contractors invite new hires to voluntarily self-identify after receiving a job offer.

Under the new rule, contractors must also invite their employees to voluntarily self-identify on a regular basis. After all, the status of employees may change over time and an invitation to self-identify provides workers with a way to either self-identify for the first time or to change their previously reported status.

We believe that providing workers with multiple opportunities to voluntarily self-identify is a good thing.

When we first proposed these self-identification provisions, I overheard a consultant – here in San Antonio – speaking to a group of contractors about them:

    “Is OFCCP obsessed?” he asked. “They want us to ask our employees if they have a disability when they apply for the job, after they get the job and again and again while they are on the job! Workers are going to think we care!”

I felt like yelling out, “Bingo!”

 


 

This is how things change. This is how workplaces become more welcoming.

You and I know that as workers feel safer in the workplace, as they better understand their rights under the law and as they feel increasingly confident that those rights will be protected – these sorts of invitations to disclose demographic information or to voluntarily self-identify will be seen as inclusive, not intrusive… as a means to promote, not to pry.

And since it’s come up again and again in our listening sessions, let me make two points here:

  1. The invitation to self-identify is 100% voluntary. We have made that clear on the self-ID form and you can make that clear in the context you provide when disseminating it; and
  2. The self-ID form does not ask the worker to disclose what disability they may have.

Look, I know that some of you may find this to be uncomfortable. Many of you may think you are prohibited from asking your employees or job applicants about their disability status.

But the EEOC has long held that inviting employees to voluntarily self-identify as people with disabilities does not violate the ADA when – and here’s the key – it is in furtherance of an employer’s affirmative action obligations. And just to underscore that point – since it is so often misunderstood or misrepresented – we’ve posted on our web site a letter to that effect from EEOC’s counsel.

The self-identification provisions go hand-in-hand with achieving the seven percent employment goal. And, I have to tell you that, throughout this rule-making process, I have heard from numerous individuals, advocates and leaders in the disability community who tell me that they want these invitations to self-identify, they welcome the question when it is genuinely intended to increase their opportunities in the workforce.

* * * * * * * * * * * * * * *

Now that the rules have become effective, we are moving into the operational phase of implementation. And I believe that operationalizing these rules is going to be a process, not a switch.

In closing, I want to note that tomorrow President Obama will be just up the road from here in Austin. He will speak at an event commemorating the 50th Anniversary of the Civil Rights Act.

As a nation, we have made a lot of progress over the past five decades. Sometimes it may feel like we take two steps forward and three steps back. But the net movement has always, always been forward.

I saw that forward movement when we finalized these two rules. I saw it again yesterday when the President took executive actions to help close the pay gap.

 


 

But nothing we do – from passing and enforcing laws to implementing new regulations – can compare to the progress you engineer each and every day by making our workplaces the most diverse, most productive and most profitable in the world.

I thank you for your work. I honor you for your leadership. And I look forward to hearing from you now.