Today, National Women’s Law Center filed a motion to intervene in a lawsuit that tech giant Oracle brought against the US Department of Labor (DOL) and its Office of Federal Contract Compliance Programs (OFCCP). OFCCP enforces the civil rights of people employed by federal contractors and subcontractors—approximately one‐fourth of the civilian workforce. After a random audit in 2014, OFCCP sued Oracle for race and gender discrimination, seeking $400 million in back pay for workers, and that proceeding has been going on ever since. In November, Oracle brought a lawsuit in response, arguing that OFCCP has no legal authority to enforce civil rights laws. Oracle’s lawsuit seeks to render OFCCP’s entire civil rights enforcement scheme toothless, leaving it unable to address discrimination in the federal contractor workforce, not just when it comes to Oracle’s workers, but for all workers employed by federal contractors.
With our co-counsel at Democracy Forward and the law firm Massey & Gail, we represent two unions, the Communications Workers of America and the United Steelworkers, who are intervening in the case to protect their members. If Oracle wins and OFCCP’s enforcement scheme is ruled unlawful, it would harm the many members of these unions who are employed by federal contractors and benefit from OFCCP’s enforcement of civil rights laws and workplace protections—and it would harm the unions who would have to try to step into the gap left by the disappearance of these efforts. A victory by Oracle would also potentially harm the ability of many other federal agencies to make policy and enforce regulations and laws that protect all of us from abuses, exploitation, and environmental harms.
For the past three years, we’ve been suing the Administration to stop rolling back protections in critical areas like equal pay, protections for sexual assault survivors in schools, and reproductive health. But we’re getting involved in this lawsuit because we’re concerned that this Administration will not vigorously defend its own authority to enforce civil rights against Oracle’s attacks. This same Administration has demonstrated a hands-off approach to business, backing off from oversight and enforcement and repealing protections against worker exploitation and discrimination. And in 2017, Trump tried to eliminate OFCCP altogether.
OFCCP enforces Executive Order 11246, which prohibits government contractors from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and also requires contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of employment. OFCCP also enforces laws requiring nondiscrimination and affirmative action by federal contractors and subcontractors for qualified individuals with disabilities and for veterans.
OFCCP carries out these actions through an administrative enforcement scheme that investigates employment practices, holds hearings, and imposes sanctions on contractors. For example, under the Obama Administration, OFCCP audited and brought actions against several federal contractors for pay discrimination, including Oracle and Cisco, which settled with OFCCP this week for $2 million in back pay and $2.75 million in pay equity adjustments. OFCCP’s ability to keep winning these sorts of victories for working people is what’s at stake in this lawsuit.
It’s no accident that Oracle filed this lawsuit against DOL and OFCCP just when trial was getting underway to determine whether Oracle in fact discriminated against its employees based on race and gender. It’s another tactic in a bitter fight with OFCCP, but one that has the potential to harm tens of thousands of workers. We rarely agree with DOL and OFCCP under this Administration—we’ve submitted many comments fighting their rollbacks of worker protections. But we will fight for a federal agency’s ability to hold companies accountable and ensure that our tax dollars aren’t used to support discrimination—whether that agency is willing to fight for itself or not.