In the prior articles in this series, we concluded that the Supreme Court's pattern or practice holdings in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), provide important guardrails applicable to OFCCP enforcement actions related to the merits of disparate impact claims and claims of a pattern or practice of disparate treatment. As to the former, the Supreme Court stressed the importance of isolating the particu...

In the prior articles in this series, we concluded that the Supreme Court's pattern or practice holdings in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), provide important guardrails applicable to OFCCP enforcement actions. The last installment examined the Supreme Court's specific holdings regarding allegations of a pattern or practice of disparate treatment. Here, we will consider the Supreme Court's ho...

In the prior article in this series, we concluded that the Supreme Court’s pattern or practice holdings in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), provide important guardrails applicable to OFCCP enforcement actions. The Supreme Court has addressed substantive discrimination standards under Title VII relatively infrequently, and, when it does, its holdings are quite consequential. In Dukes, the Supreme...

As we discussed in the introductory article in this series, OFCCP has argued that certain of the Supreme Court's pattern or practice holdings in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), do not apply because the Agency is arguably not subject to the Rule 23 requirement of demonstrating that 'there are questions of law or fact common to the class.' OFCCP's argument is that the pertinent holdings of Dukes a...

The Supreme Court addresses systemic employment discrimination questions relatively rarely. In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court addressed questions related to systemic pay discrimination claims under Title VII. The Supreme Court's decision contained several significant rulings regarding systemic pay discrimination claims. For example, the Supreme Court explained that statistical agg...

In the four prior articles in this series, we have conducted an evaluation of OFCCP’s recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, “What is Law?” This last article in this series addresses contractor concerns that have emerged over the past five years about what appears to be OFCCP’s results-oriented application of the law, i.e., determin...

In the three prior articles in this series, we have evaluated OFCCP's recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, 'What is Law?' Since our earlier articles, Secretary of Labor R. Alexander Acosta has continued to build his team at the Department of Labor (DOL). For example, the Senate recently confirmed Patrick Pizzella as Deputy Secretary of Labor. We expe...

In prior articles in this series, published on November 17, 2017 and February 14, 2018, I proposed an evaluation of OFCCP's recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, 'What is Law?' This review is timely because the new Administration is building its team and considering the regulatory and enforcement approaches to be implemented on its watch. In the la...

In my initial article, published on November 17, 2017, I proposed an evaluation of OFCCP's recent regulatory and enforcement positions through the lenses of the fundamental and perennial question, 'What is Law?' I outlined controversial positions taken under a different Administration, and the new Administration's consideration of the regulatory and enforcement approaches to be implemented on its watch. I also not...

Implementing affirmative action programs and complying with OFCCP requirements are intensely practical matters for those charged with these responsibilities. It may seem that abstract questions about the Rule of Law are far afield from such practical concerns. However, the most important requirement that OFCCP enforces relates to an abstract law: “The contractor will not discriminate against any employee or applic...