America First Legal Calls on OFCCP to Investigate Contractors

America First Legal Foundation (AFL)—a nonprofit organization founded by current White House Deputy Chief of Staff Stephen Miller—has made headlines calling for federal investigations of a wide range of U.S. companies, organizations, and institutions over perceived violations of federal non-discrimination law. In many cases AFL also files amicus (“friend of the court”) briefs when there is actual litigation, and in some instances is actually a party to such lawsuits. When it comes to federal investigations, many of AFL’s communications are directed to the Equal Employment Opportunity Commission (EEOC), but in mid-February AFL sent an “investigation request” to Vincent Micone, III, the Acting Secretary of Labor, and Michael Schloss, the Acting Director of the Office of Federal Contract Compliance Programs (OFCCP). AFL’s letter requested that OFCCP “immediately surge available resources to investigations of open and notorious prohibited discrimination,” and suggests that DOL use its authority to “cancel, terminate, or suspend contracts and declare [the contractor] ineligible for further federal government contracts.”  

While AFL specifically notes that President Trump revoked EO 11246 over a month ago, the letter repeatedly calls on OFCCP to enforce specific regulatory provisions that it believes are “presently enforceable” - citing the provisions regarding the required equal opportunity clause in all federal contracts and those permitting cancellation, termination or suspension of contracts as sanctions for non-compliance.  While the EO 11246 regulations are still “on the books,” it is unclear how AFL believes the regulations can be used without the underlying executive order they implement. 

The letter also notes that EO 14173 (which rescinded EO 11246) “clarifies that all race- and sex-based employment practices…are prohibited.” And while that may have indeed been the impression EO 14173 was designed to give, that statement does not accurately reflect federal non-discrimination law or jurisprudence. 

The AFL letter provides no hard evidence of wrongdoing by any of the organizations it identifies as possible targets for investigation. Instead, AFL “identified” discrimination at those organizations “largely based on the contractors’ own public statements and representations that the implementing policies designed to alter, or ‘balance’ the race, color, sex, and nation origin of its workers.” 

What that statement means is unclear, but AFL provides two main examples: contractors’ promising workplace “diversity” and “equity.” According to AFL, the use of those two terms alone is sufficient for federal investigations. 

It is unclear what, if anything, DOL or OFCCP can or will do with the AFL’s demands. Even assuming that OFCCP still has any authority to enforce any part of the regulations regarding equal opportunity in federal contracting, recent published reports indicate that the Department of Labor is preparing to cut 90% of OFCCP’s staff, which will make it difficult for the agency to launch wide-scale investigations of the nature contemplated by the AFL request.