USW, CWA Seek to Intervene In Crucial Case to Defend Civil Rights Enforcer Amidst Economic Uncertainty, Nationwide Patterns of Discrimination

District of Columbia, California, Equal Rights Advocates Lead Separate “Friend of the Court” Briefs with Former Heads of Civil Rights Enforcement Agencies, Civil Rights Organizations Urging Court to Reject Oracle’s Challenge

Washington, D.C. — Last week, 8 states, led by the District of Columbia and California, as well as 12 former senior government officials who led civil rights enforcement efforts at the Department of Justice, the Equal Employment Opportunity Commission, and the Department of Labor, and 46 workers’ rights advocates, labor organizations, law firms and other legal associations involved in defending workers’ rights, led by Equal Rights Advocates, filed two amicus briefs urging the federal court to reject efforts by Oracle America to strip the Department of Labor of its civil rights enforcement authority.

On March 18, 2020, the Communications Workers of America and United Steelworkers filed a motion to intervene in a lawsuit brought by Oracle America against DOL to protect the interests of workers by defending the Office of Federal Contract Compliance Programs’ (OFCCP) authority to enforce civil rights laws against federal contractors. If successful, Oracle’s challenge would restrict a key civil rights enforcement agency and undermine employees’ protections against workplace discrimination. CWA and USW are represented by Democracy Forward, the National Women’s Law Center, and Massey & Gail.

The States’ brief, which was signed by the District of Columbia, California, Connecticut, Delaware, New Jersey, New York, Pennsylvania, and Virginia, highlights how “stripping OFCCP of its administrative enforcement powers as advocated by Oracle America, Inc. (Oracle)—including its ability to seek backpay and other make-whole relief to deter unlawful discrimination—has the potential to disrupt equal employment and anti-discrimination enforcement in Amici States and nationwide.” The Amici States “rely on OFCCP’s oversight, and in particular, its administrative enforcement mechanisms, to ensure that the States’ federal contractor sector complies with anti-discrimination laws.” As such, the Amici States urge the court to “uphold OFCCP’s current powers and administrative enforcement framework, which play a central role in advancing equal opportunity and nondiscrimination in employment.”

The former officials and advocates’ brief was signed by former senior government officials who led civil rights enforcement efforts at the Department of Justice, the Equal Employment Opportunity Commission and the Department of Labor, and 46 other groups that are committed to protecting civil rights and advancing equal opportunity, including Equal Rights Advocates, the NAACP, and the ACLU. A number of law firms and other legal associations involved in defending workers’ rights also signed on to the brief. The signatories explain that OFCCP’s “compliance efforts and ability to bring enforcement actions are vital to securing equal access and economic opportunity for millions of working people.” The government, through taxpayer dollars, spends “up to 40 percent of its discretionary budget on the goods and services contractors provide,” yet “the individuals who make up the contractor workforce are still often subject to insidious and even blatant discrimination.” Informed by their deep experience, the signers argue that “substantially hampering the federal agency best-positioned, and long-empowered, to root out and remedy such disparities where they are perpetuated by the government’s taxpayer-funded contracting partners would be devastating and wrong-headed.” As the signers note, “it is simple common sense” that the “power to enforce is a necessary complement to the power to regulate.”

CWA and USW sought to intervene against the backdrop of the Trump administration’s pattern of weakening nondiscrimination protections and its efforts to hamstring OFCCP, which provides substantial reason to think that the defendants will not provide a vigorous defense of OFCCP’s enforcement authority. While the government took no position on CWA and USW’s Motion to Intervene, Oracle opposed it, stating among its reasons that the Trump administration is an adequate representative of workers’ interests. The multiple actions the Trump administration has taken to weaken or dismantle OFCCP and turn its back to workers suggest otherwise. Among these are the tightening of control over the DOL Administrative Review Board that hears appeals involving OFCCP enforcement actions and the recent regulation which excludes a broad swath of workers from critical paid leave enacted as a response to the pandemic.

The amicus briefs filed urging the court to reject Oracle’s challenge were filed by:

States: District of Columbia, California, Connecticut, Delaware, New Jersey, New York, Pennsylvania, Virginia.

Former Government Officials Representing Key Civil Rights Enforcement Agencies: Patricia A. Shiu (Former Director of Federal Contract Compliance, OFCCP (2009-2016)); Patrick O. Patterson (Deputy Director, OFCCP (2014-2017); Senior Counsel to the Chair, EEOC (2010-2014)); Shirley J. Wilcher, M.A., J.D. (CAAP Former Deputy Assistant Secretary for Federal Contract Compliance, OFCCP (1994- 2001)); Stuart Ishimaru (Commissioner EEOC (2003-2012); Acting Chairman, EEOC (2009-2010); Deputy Assistant Attorney General, Civil Rights Division, DOJ (1999-2001)); Richard Ugelow (Former Deputy Chief, U.S. Department of Justice Civil Rights Division, Employment Litigation Section (1973-2002)); Jenny Yang (Former Chair, Vice Chair, & Commissioner, EEOC (2013-2018); Senior Trial Attorney, Employment Litigation Section, Civil Rights Division, United States Department of Justice (1998-2003)); H. Jack Bluestein (Program Operations Director, OFCCP (1978-1990); Engaged in Executive Order 11,264 compliance for over twenty years beginning in 1966); Gary Buff (Former Associate Solicitor of Labor, Civil Rights Division (2001-2005); Former Deputy Associate Solicitor (1992-2000)); Pamela Coukos (Former Senior Advisor, OFCCP (2011-2016)); Michael D. Felsen (Former New England Regional Solicitor U.S. Department of Labor (2010-2018); U.S. Department of Labor Office of the Solicitor (1979-2018)); Donna Lenhoff (Former Senior Civil Rights Advisor, OFCCP (2011-2017)); Thomas McCammon (Former Director, San Diego Local Office, EEOC (2008-2009); Former Mediator, EEOC (2009-2013)).

Organizations, Groups, Law Firms and Legal Organizations: Equal Rights Advocates; Advocates for Worker Rights LLP; American Association of University Women (AAUW); American Atheists, Inc.; American Civil Liberties Union (ACLU); American Federation of Teachers (AFT); Anti-Defamation League; Asian Pacific American Labor Alliance, AFL-CIO; Atlanta Women for Equality; California Employment Lawyers Association; California Women’s Law Center; Civil Rights Education and Enforcement Center; Equality California (EQCA); Friedman & Houlding LLP; Gender Justice; GLSEN; Heartland Center for Jobs and Freedom, Inc.; Impact Fund; Lambda Legal; La Raza Centro Legal/Workers’ Rights Program; LatinoJustice PRLDEF; The Lawyers’ Committee for Civil Rights Under Law; Legal Aid at Work; Legal Aid Society of Metropolitan Family Services; Matern Law Group, PC; Movement Advancement Project; NAACP; National Asian Pacific American Women’s Forum; National Center for Lesbian Rights; National Center for Transgender Equality; National Council of Jewish Women; The National Employment Law Project; National Employment Lawyers Association; National Equality Action Team; National Lawyers Guild Labor & Employment Committee; National Organization for Women; National Taskforce on Tradeswomen Issues; National Urban League; Oregon Tradeswomen; Outten & Golden LLP; People’s Parity Project; PFLAG National; Public Justice Center; Southern Poverty Law Center; Sugar Law Center for Economic and Social Justice; The National Center for Women’s Equity in Apprenticeship and Employment at Chicago Women in Trades; The Sikh Coalition; Tradeswomen, Inc.; United Food & Commercial Workers International Union (UFCW); Women Employed; Women’s Law Project.

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