The Office of Federal Contract Compliance Programs (OFCCP) is an agency in the United States Department of Labor responsible for ensuring that employers conducting business with the federal government comply with three equal employment opportunity laws. Since its creation and later consolidation within the Department of Labor, OFCCP’s enforcement authority has covered a significant portion of the American labor force.
The three equal employment opportunity laws OFCCP administers and enforces are:
- Executive Order 11246, as amended;
- Section 503 of the Rehabiliation Act of 1973, as amended;
- Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended.
In addition to enforcement of these laws, OFCCP’s mission includes providing compliance assistance to federal contractors and subcontractors. Throughout its history, there have been a total of 16 Directors of the OFCC and OFCCP.
The origins of OFCCP can be traced back to President Franklin D. Roosevelt’s signing of Executive Order 8802 on June 25, 1941. Executive Order 8802 was issued to prohibit federal contractors within the defense industry from discriminating on the basis of race or ethnicity, and was implemented in part on the urging of prominent civil rights leaders, most noticeably A. Philip Randolph.
Following the conclusion of World War II, the Committee on Government Contract Compliance was created in December 1951 by President Harry S. Truman and implemented via Executive Order 10308. In contrast to Executive Order 8802, the Committee was responsible for oversight of federal contractors generally, not merely those within the defense industry, and tasked with ensuring that contractors were prohibited from discriminating on the basis of race, creed, color or national origin.
On August 13, 1953, President Dwight D. Eisenhower made substantial progress towards the goal of equal employment opportunity in the federal workplace through the issuance of Executive Order 10479, which created the President’s Committee on Government Contracts. In President Eisenhower’s final report, Vice President Richard M. Nixon, in perhaps the first call by a U.S. administration for concrete, positive action to eliminate discrimination within the federal contractor workforce, stated that “the indifference of employers to establishing a positive policy of nondiscrimination hinders qualified applicants and employees from being hired on the basis of equality.” The concept that affirmative steps by contractors, as opposed to merely refraining from discrimination, were required to ensure equal employment access and opportunity soon began to come to fruition.
President John F. Kennedy built upon the civil rights precepts of the Eisenhower administration by signing Executive Order 10925 on March 6, 1961, shortly after coming into office, requiring government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, creed, color, or national origin”. Executive Order 10925 also created the President’s Committee on Equal Employment Opportunity, which became the Equal Employment Opportunity Commission (EEOC) upon passage of the Civil Rights Act of 1964. The President’s Committee was chaired by Vice President Lyndon B. Johnson and later by Vice President Hubert H. Humphrey, and was entrusted with overseeing issues of policy and nondiscrimination within the Department of Labor. The authority of the President’s Committee proved to be a landmark in civil rights and labor law, and though the Committee initially had weak powers of enforcement, Congress later asserted authority under the Commerce Clause of the U.S. Constitution to pass subsequent legislation that strengthened the Commission.
On July 2, 1964, the Civil Rights Act of 1964, first proposed by President Kennedy, became law. The law was a culmination of President Johnson’s legislative program following President Kennedy’s assassination. Title VII of the Civil Rights Act of 1964 made it unlawful to discriminate on the basis of race, sex, creed, color, or national origin by employers with 25 or more employees in the private sector, regardless of government contracts, and established the EEOC.
The Civil Rights Act of 1964 was historic and comprehensive, prohibiting discrimination in public accommodations, employment, and federally assisted programs, as well as enforcing the desegregation of public facilities and public education and expanding access to the right to vote. Congress passed the Equal Pay Act of 1963 one year earlier, prohibiting employers from compensating employees engaged in equal work differently based on sex.
On September 24, 1965, President Johnson greatly expanded the federal government’s oversight and enforcement of equal employment opportunity in the American workforce by issuing Executive Order 11246, prohibiting federal contractors from discriminating and requiring them to take affirmative action. It also empowered the Secretary of Labor to promulgate rules and regulations, and issue orders deemed necessary to effectuate the Executive Order.
The federal regulations issued pursuant to this authority required:
- an analysis of the current workforce;
- identification of problem areas;
- the establishment of goals and timelines to increase employment opportunities for underutilized groups;
- specific action-oriented programs to address problem areas; and
- the establishment of an internal audit and reporting system.
The impact of Executive Order 11246 was monumental, as it gave federal contracting agencies authority to institute procedures against federal contractors who violated their equal employment opportunity obligations and issue sanctions, including debarment and the cancellation of current contracts.
At a commencement address at Howard University, President Johnson eloquently stated the nondiscrimination and affirmative action elements of Executive Order 11246, noting that the Executive Order’s purpose is to “seek not just freedom but opportunity . . . not just legal equity but human ability, not just equality as a right and a theory, but equality as a fact and equality as a result.”
In 1965, under the tenure of Secretary W. Willard Wirtz, the Office of Federal Contract Compliance (OFCC) was established, with Edward C. Sylvester appointed as OFCC’s first Director. Director Sylvester, a former deputy administrator of the Bureau of International Labor Affairs, soon began laying the foundations for the civil rights enforcement agency OFCCP would eventually become. Under Director Sylvester’s leadership, OFCC promulgated regulations requiring every service and supply contractor with 50 or more employees and a contract of $50,000 or more to maintain a written affirmative action program that was tailored to meet the equal employment problems and needs of minorities, including specific goals and timetables to eliminate deficiencies. The OFCC also developed the concept of area-wide plans, including utilization goals for the employment of minorities on an area-wide basis in the construction industry
On October 13, 1967, President Johnson signed Executive Order 11375 into law, amending Executive Order 11246 to include sex as a prohibited basis of discrimination and requiring affirmative action for women. In 1970, the administration of President Richard M. Nixon promulgated 41 CFR chapter 60, which today contains OFCCP’s nondiscrimination and affirmative action regulations, and the EEOC issued sex discrimination guidelines. In 1971, the regulations were revised to include women as well as minorities.
President Nixon signed the Equal Employment Opportunity Act of 1972 into law on March 24, 1972, a culmination of eight years of effort to strengthen Title VII of the Civil Rights Act of 1964. The EEO Act expanded the jurisdictional coverage of Title VII to state and local governments, broadened EEOC’s authority to obtain corrective action and eliminate discrimination through recourse to the federal courts, and increased the number of employers subject to Title VII of the Civil Rights Act by lowering the threshold of employees from 25 to 15.
OFCC’s authority was expanded with Congress’s enactment of the Rehabilitation Act of 1973 on September 26, 1973. Section 503 of the Rehabilitation Act and its regulations prohibit contractors and subcontractors from discriminating against qualified individuals with disabilities, and also require employers to take affirmative action to employ and advance in employment qualified individuals with disabilities. Congress further expanded OFCC’s authority by enacting the Vietnam Era Veterans’ Readjustment Act (VEVRAA) of 1974. This law, and its implementing regulations, prohibits federal contractors and subcontractors from discriminating against qualified protected veterans in employment, and requires employers to take affirmative action to employ and advance in employment qualified protected veterans. Following the passage of the Rehabilitation Act of 1973 and VEVRAA and the commensurate expansion of OFCCP’s authority, the Office of Federal Contract Compliance was renamed the Office of Federal Contract Compliance Programs under President Gerald R. Ford in 1975 to reflect OFCCP’s expanded jurisdiction.
In 1978, under Executive Order 12086, President Jimmy Carter consolidated responsibility for the enforcement of affirmative action and nondiscrimination obligations across multiple federal agencies into one agency within the Department of Labor. The consolidation of equal opportunity enforcement in federal procurement into one agency proved seminal, as all equal employment opportunity contract compliance enforcement powers previously placed across multiple executive departments were unified and transferred to the Department of Labor. Following consolidation, in 1978 the OFCCP, EEOC, Department of Justice and the Civil Service Commission (now the Office of Personnel Management) jointly issued the Uniform Guidelines on Employee Selection Procedures, providing a framework for employers and contractors alike to determine the proper use of tests and other selection procedures. The UGESP also served the purpose of incorporating a single set of employment selection principles and procedures designed to assist employers, labor organizations, employment agencies, licensing and certification boards on how best to comply with the requirements of federal law.
Under the administration of President Ronald Reagan, OFCCP expanded its role of providing compliance to federal contractors by bestowing Exemplary Voluntary Efforts Awards to contractors that had established exceptional action-oriented programs for women, minorities and individuals with disabilities. Industry Liaison Groups that endure today were also instituted to increase and provide a forum for contractors and stakeholders to interact with OFCCP outside of the adversarial compliance review process. Today, most of the compliance assistance policies instituted by President Reagan continue today in the form of OFCCP’s Contractor Assistance program, including the creation of a permanent Ombuds Service to serve as a channel of communication between contractors and OFCCP.
The administration of President George H.W. Bush saw a renewed focus on ensuring equality for women in the federal workplace with the commencement of the Glass Ceiling Initiative. As part of the Glass Ceiling Initiative, OFCCP analyzed the data of 94 Fortune 100 companies who were federal contractors and observed the disturbing trend that though the percentage of women and minorities in the workforce had increased measurably over the previous 25 years, many were confined to entry-level posts and were poorly represented in senior level management positions. The Glass Ceiling Initiative incorporated Corporate Management Reviews, internal educational efforts, and public recognition and reward to promote the elevation of women and minorities into senior management positions. A Glass Ceiling Commission was created and preserved under President William Clinton to emphasize the promotion of qualified women to senior positions as a long term policy priority of OFCCP
Under the administration of President Clinton, OFCCP adopted new enforcement initiatives with a goal of focusing on the worst offenders and targeting the most obvious areas of noncompliance. In addition to its emphasis on the Glass Ceiling Initiative, OFCCP resolved a backlog of discrimination cases, strengthened the sanctions applied for noncompliance, and received cooperation from the construction industry and building trade unions to expand minority and female employment. Under the “Three-Pronged Fair Enforcement Strategy,” OFCCP obtained millions of dollars in financial remedies while also extending OFCCP’s reach beyond the nation’s borders by working with governments and organizations to promote equal opportunity by federal contractors in Europe, Asia, Mexico, Canada and South Africa
OFCCP’s foundational mission of ensuring equal opportunity continues to prove dynamic in the twenty-first century. In 2002, President George W. Bush issued Executive Order 13279, amending the reach of Executive Order 11246 by providing an exemption for religiously affiliated contractors, be they corporations, associations, educational institutions or societies, with respect to the ability of those contractors to hire individuals of a particular religion in order to perform work connected with the carrying on of the religious entities’ activities. Executive Order 13279 demonstrated OFCCP’s commitment to religious freedom, further cementing its mission as a civil rights agency while demonstrating that contractors were not exempt from complying with other requirements of Executive Order 11246. That same year, protections for disabled veterans were further expanded with the passage of the Jobs for Veterans Act (JVA) of 2002. The JVA also established a priority of service requirements for veterans and eligible spouses, including widows and widowers, in qualified job training programs.
On April 8, 2014, President Barack Obama further amended Executive Order 11246 by signing the Presidential Memorandum and Executive Order 13665, barring any federal contractor from discharging or discriminating against an employee who has discussed, inquired about, or disclosed the compensation of another employer or job applicant. Executive Order 13665 furthers the goal of ensuring pay equality by facilitating wage disclosure and transparency and furnishing workers with the ability to more easily identify and contest unlawful pay and compensation disparities.
The issuance of Executive Order 13672 by President Obama further added to the agency’s mission by prohibiting federal contractors and subcontractors from discriminating on the basis of sexual orientation and gender identity, and adding both to the list of protected categories enumerated in Executive Order 11246. The Obama administration also overhauled the regulations for Section 503 and VEVRAA to add, among other things, a disability utilization goal, a VEVRAA hiring benchmark, and strengthened affirmative action requirements
Under the administration of President Donald J. Trump, OFCCP focused on providing more certainty to contractors, improving efficiency, providing recognition to contractors, and increasing the transparency of OFCCP’s operations and policy. In addition to re-initiating an Ombuds Service and achieving record-setting monetary settlements to remedy discrimination based on race and sex, OFCCP also developed new enforcement procedures for mediation and for the efficient and early resolution of discrimination and other material violations of EEO laws. During this administration, OFCCP also heavily utilized focused reviews to help ensure compliance and develop best practices in regard to Section 503 and VEVRAA. The agency also announced new focused reviews on promotions, accommodations, and affirmative action. Enhanced certainty also came through several comprehensive compliance assistance guides, and OFCCP recognized contractors with the first Excellence in Disability Inclusion (EDI) Award.
Through each administration, every subsequent Secretary of Labor and Director has expanded and built upon OFCCP’s foundational mission while also serving as stalwart custodians of the first civil rights agency in the executive branch devoted to the American ideal of equality. As it carries its foundational principles and enforcement obligations into the 21st century, OFCCP will continue to be an indispensable tool for ensuring equality of opportunity and nondiscrimination throughout America’s federal workforce.