By Wayne Simpson, CFCM, CSCM
On August 10, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued two directives. OFCCP directives provide guidance to OFCCP staff, Federal contractors (and subcontractors) on enforcement and compliance policy or procedures. These directives do not change the laws and regulations governing OFCCP programs and do not establish any legally enforceable rights or obligations. These directives will remain in force in anticipation of an addition to the Department’s regulatory agenda followed by rulemaking informed by public comment.
The first directive, No. 2018-03, involves Executive Order No. 11246, Section 204(c), religious exemption, and incorporates recent court decisions addressing the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and Federal Law.
The directive contains a policy statement, stating “In line with the longstanding constitutional requirement that government must permit individuals and organizations, in all but the most narrow circumstances, to participate in a government program ‘without having to disavow [their] religious character,’ OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing requirements of E.O. 11246, OFCCP staff should bear in mind that:
- They cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices and must proceed in a manner neutral toward and tolerant of religious beliefs.
- They cannot condition the availability of opportunities upon a recipient’s willingness to surrender his [or her] religiously impelled status.”
- A Federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with the Religious Freedom Restoration Act.
- They must permit faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for Federal contracts.”
- They must respect the right of religious people and institutions to practice their faith without fear of discrimination or retaliation by the Federal Government.
The second directive, No. 2018-04, directs a portion of future scheduling lists included focused reviews as to each of the three authorities OFCCP enforces: E.O. 11246; Section 503 of the Rehabilitation Act; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.
The directive contains the following OFCCP policy:
- OFCCP staff is directed to work towards ensuring that a portion of future scheduling lists, starting in Fiscal Year 2019, include focused reviews as to each of the three authorities that OFCCP enforces: the E.O., Section 503, and VEVRAA. As such, these focused reviews will be selected from the same neutral selection system used to identify and create OFCCP’s supply and service scheduling list.
- OFCCP staff is further directed to develop a standard protocol for conducting the focused reviews anticipated by this Directive and to make this information available publicly in its FAQs prior to the next scheduling list being issued.
- Finally, the OFCCP staff is directed to develop staff training and contractor education and compliance assistance to provide guidance as to the focused reviews anticipated by this Directive.
About the Author:
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.