OFCCP Week In Review: February 17, 2020

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers, and I. In today’s edition, we discuss:

• Denial Of Sex Reassignment Surgery to a Federal Prisoner Found to be Cruel and Unusual Punishment Violative Of the 8th Amendment
• OFCCP and NILG To Host Compensation Roundtable
• EEOC Issued Annual Performance Report
• Component 2 Collection Data Officially Closed!
• The White House Issued FY21 Budget
• OFCCP Budget Justification Released
• DE Talk: Episode 5 Launched! The ROI of D&I is Greater Humanity
• DirectEmployers Signed MOU with OFCCP!
• NILG Conference Agenda Announced
• MILG Updates
• OFCCP Recognized African American History Month
• EARN Recognized American Heart Month and Age-Related Macular Degeneration/Low Vision Month

Monday, February 10, 2020: Denial Of Sex Reassignment Surgery to a Federal Prisoner Found to be Cruel and Unusual Punishment Violative Of the 8th Amendment

The Ninth Circuit becomes the first Federal Appellate Court to find the denial of sex reassignment surgery to a federal prisoner to be cruel and unusual punishment violative of the 8th amendment. The decision is in the case of ADREE EDMO, AKA Mason Edmo, Plaintiff-Appellee, v. CORIZON, INC.; and IDAHO DEPARTMENT OF CORRECTIONS; ET AL (means “and others”), Defendants

The United States Court of Appeals for the Ninth Circuit (San Francisco) hearing a criminal case on appeal from a three-Judge appellate panel of the full Ninth Circuit Court of Appeals has now made new law by refusing, en banc, to hear the appeal (meaning all 29 Judges of the Ninth Circuit appeals bench convened to determine whether even to hear the appeal). By refusing to hear the appeal, the Ninth Circuit has thus refused to overturn the appeals panel’s decision which had affirmed a federal Idaho District Court Judge’s earlier decision to require the State of Idaho prison system to BOTH (a) permit a biological male who identifies as a woman, and who was diagnosed with gender dysphoria, to obtain sex reassignment surgery and (b) to have the state of Idaho pay for it. Accordingly, the transgender prisoner, Ms. Edmo, wins. (By the way, the Ninth Circuit panel decision is a detailed primer on gender dysphoria and is well worth reading if your company employs a gender dysphoric employee).

The trial court had held that it would be cruel and unusual punishment violative of the Eighth Amendment to the Constitution to deny Ms. Edmo sex reassignment surgery to help remediate her gender dysphoria. (The Eighth Amendment very simply states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)

But not so fast. Idaho Governor Bradley (“Brad”) Little has already in the last week vowed an appeal to the Supreme Court of the United States (“SCOTUS”), especially given the very vigorous and lengthy dissents among the 29-Judge Ninth Circuit en banc court. Judge O’Scannlain, joined by eight other Judges, wrote a 29-page “Statement” decrying the decision on numerous legal and medical grounds. Six of the Judges joining Judge O’Scannlain’s lengthy Statement also separately dissented, in addition to another Judge who separately dissented. These seven dissenters then collectively wrote another 14 pages of opinions stressing their dissatisfaction at the majority’s decision not to hear the appeal of the three-Judge appellate panel decision.

Those dissents argued that the Court’s Order thus causes the Ninth Circuit three-Judge panel decision to depart from the decisions of other federal circuit courts and thus sets up a “split in the circuits,” a primary reason the SCOTUS hears cases (i.e., to resolve unsettled issues of law and create one homogenous body of federal law).

Insider Tip

This case could be going up. Wait and watch.

Case Summary

Here is a small portion of how Judge O’Scannlain summarized the case:

“With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-Judge panel’s conclusion— that any alternative course of treatment would be “cruel and unusual punishment” – is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice. Respectfully, I believe our court’s unprecedented decision deserved reconsideration en banc.”

In 2012, Adree Edmo (then known as Mason Dean Edmo) was incarcerated for sexually assaulting a sleeping 15-year-old boy. By all accounts, Edmo is afflicted with profound and complex mental illness. She (Fn 1) suffers from major depressive disorder, anxiety, alcohol addiction, and drug addiction. At least two clinicians have concluded that she shares the traits of borderline personality disorder. She abused alcohol and methamphetamines every day for many years, stopping only upon her incarceration. A victim of sexual abuse at an early age, she attempted suicide three times before her arrest for sexual assault—twice by overdose and once by cutting. A new diagnosis was added in 2012: gender dysphoria. Two months after being transferred to the Idaho State Correctional Institution (a men’s prison), Edmo sought to speak about hormone therapy with Dr. Scott Eliason, the Board-certified director of psychiatry for Corizon, Inc. (the prison’s medical care provider). In Dr. Eliason’s view, Edmo met the criteria for gender dysphoria. (Fn 2). After the diagnosis was confirmed by another forensic psychiatrist and the prison’s Management and Treatment Committee, Edmo was prescribed hormone therapy. She soon changed her legal name and the sex listed on her birth certificate. As a result of four years of hormone therapy, Edmo experienced physical changes, including breast development, redistribution of body fat, and a change in body odor. She now has the same circulating hormones as a typical adult female.”

Fn 1: “Though Edmo was born a male, Edmo has legally changed the sex listed on her birth certificate to female. I therefore use feminine pronouns throughout, just as the panel does.”

Fn 2: “Gender dysphoria is a diagnosis introduced in the latest, fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. It replaces the now-obsolete “gender identity disorder” used in the previous edition. The gender dysphoric patient experiences “clinically significant distress or impairment in social, occupational, or other important areas of functioning” that is associated with the feeling of incongruence between perceived gender identity and phenotypic sex. See Am. Psychiatric Ass’n, Diagnostic, and Statistical Manual of Mental Disorders 453 (5th ed. 2013).”

Editorial Note: It will take many months for the SCOTUS to receive, review, and decide the State of Idaho’s Petition for Certiorari (i.e., request for right to appeal) to the SCOTUS, and another 6-10 months, at least, after that for the SCOTUS to docket, hear, and decide the case (in likely mid-year 2021) were the SCOTUS to agree to hear the Petition.

Monday, February 10, 2019: OFCCP and NILG To Host Compensation Roundtable

In a joint effort, the National Industry Liaison Group (NILG) and the Office of Federal Contract Compliance Programs (OFCCP) announced an upcoming event, a “Compensation Roundtable.” Participants in the discussion will include OFCCP officials, several prominent industrial and organizational psychologists, and labor economists.

The discussion will cover:

• the enhancement of OFCCP’s approach to compensation reviews resulting from Directive 2018-05;
• experts’ recommendations for improving provisions and the application of the Directive; and
• the exchange of opinions on how OFCCP and practitioners can best identify pay disparities requiring remediation.

NILG Chair, Paul McGovern, and NILG Advisory Council member, Valerie Hoffman of Seyfarth Shaw LLP, will moderate the discussion.

Meeting details

Date: Tuesday, February 18, 2020

Time: 2:00 p.m. – 4:30 p.m. Eastern Time (To participate online, register on WebEx)

If accommodations are needed, contact Margaret Kraak at 202-693-1097 or [email protected].

DE Members

Executive Director Candee Chambers will be attending the event in D.C. She will represent DirectEmployers Members, bringing her practitioner experience and input to the discussion.

Monday, February 10, 2020: EEOC Issued Annual Performance Report

The Equal Employment Opportunity Commission (EEOC) issued its Fiscal Year 2019 Annual Performance Report (APR). The Report outlines the Agency’s progress in achieving the goals and objectives outlined in its Strategic Plan, along with performance and program results achieved for the previous fiscal year.

Highlights include:

• reducing the inventory of pending private sector charges by 12.1% (to 43,580 charges), the lowest in 13 years;
• conducting more than 3,800 outreach events including over 485 for small business;
• providing more than 295,600 individuals nationwide with information about employment discrimination and their rights and responsibilities in the workplace;
• securing more than $486 million and other relief for victims of employment discrimination in the private sector and state and local government workplaces through mediation, conciliation, and settlements;
• the EEOC’s legal staff resolved 173 merit lawsuits and obtained $39.1 million in monetary relief as a direct result of litigation resolutions.

The APR was issued in coordination with the agency’s Congressional Budget Justification. The FY 2021 Budget requests $362,481,000 for the EEOC, which includes $27,525,000 for state and local programs. This request represents a decrease of $27.019 million below the FY 2020 enacted level of $389,500,000 million.

Monday, February 10, 2020: Component 2 Collection Data Officially Closed!

In the penultimate chapter of the EEO-1 Component 2 “Pay Data” collection saga, Judge Chutkan tied up the remaining loose end and granted the Defendants’ motion to close the portal because the required collection percentage was complete. Judge Chutkan ordered:

• EEO-1 Component 2 data collection was complete pursuant to the Court’s April 25, 2019 Order and that the government has no further obligation to provide status reports after the next status report, due on or before February 14, 2020. (Filed February 12, 2020)
• Other than the above status report, Defendants have no remaining obligations pursuant to the Court’s April 25, 2019 Order or the Court’s March 4, 2019 Order granting Plaintiffs’ motion for summary judgment.

We reported the results of our DE Member survey on our Member’s anticipated ability to complete the filing of component 2 data. 82% indicated their organization would need until the 2020 EEO-1 Survey window to gather and be able to upload the data. When compared to the actual filing data we reported last week (indicating the portal just reached 89% component 2 completion), it is of no surprise to us that DE Members were accurate on their estimates and are a solid representation of the Federal government contractor population as a whole.

The full results of DE’s Member Survey are available to Members in the DE Community, preceded by the Declaration of Candee Chambers authenticating the Survey.

Tuesday, February 11, 2020: The White House Issued FY21 Budget

The White House issued a fact sheet announcing key takeaways from President Trump’s 2021 Fiscal Year Budget. In addition to an investment of $142.2 billion in federal research and development (6% increase over his FY 2020 budget), the FY 2021 Budget includes investments in education and job training geared towards helping to create a diverse and highly skilled American workforce to support the “industries of the future.”

For example, at the National Science Foundation, an additional $50 million would go towards artificial intelligence and quantum information science workforce development, with a focus on community colleges, Historically Black Colleges and Universities, and Minority Serving Institutions.

The Department of Labor Budget (42 pages) includes $106,412,000 for the Office of Federal Contract Compliance Programs (page 25) (see next story for OFCCP budget details).The Major Saving and Reform Report (202 pages) includes the following changes with their rationales:

1. Elimination of the Indian and Native American Program: The Program “duplicates services that are funded through the Department of Labor’s core Workforce Innovation and Opportunity Act (WIOA) job training formula grants. As an alternative, the Budget would create a Native American set-aside in the WIOA Adult formula grant program as exists in the WIOA Youth program, integrating Native American training efforts into the core workforce system instead of supporting parallel efforts.”
2. Reduction of Job Corps: The Budget proposes to “reform Job Corps by closing low-performing centers, piloting new approaches to service delivery, enabling States to become center operators, and focusing the program on youth most likely to benefit from the intervention.”
3. Elimination of Migrant and Seasonal Farmworker Training (also known as the National Farmworker Jobs Program): The Program “is duplicative in that it creates a parallel training system for migrant and seasonal farmworkers, despite the fact that these individuals are eligible to receive services through the core Workforce Innovation and Opportunity Act (WIOA) formula programs.”
4. Elimination of OSHA Training Grants: The Budget proposes to eliminate the Occupational Safety and Health Administration’s (OSHA) Susan Harwood training grants, which the Report called “unnecessary and unproven.”
5. Elimination of the Senior Community Service Employment Program (SCSEP): SCSEP is duplicative of the Workforce Innovation and Opportunity Act (WIOA) job training formula grants, and is “ineffective in achieving its goal of transitioning seniors into unsubsidized employment.”

Tuesday, February 11, 2020: OFCCP Budget Justification Released

The OFCCP 2021 Fiscal Year Congressional Budget Justification (32 pages) is now available for review. For the first time, the White House budget is up (not quite ? mil) from the previous year. The OFCCP headcount remains flat at 496.

A few highlights from the anticipated use of budgeted dollars include:

• an increase to payroll (FYI: senior non-managerial Compliance Officers now earn over 100k, and senior managers are now scaring 200k);
• a projected increase in the number of annual compliance evaluations to 3,000;
• an increase of narrowly tailored focused reviews including on promotion and accommodations in the workplace;
• a complete reform of the compliance officer training and education program; and
• additional town halls in areas of industry and the community.

The Budget process…what’s next?

The OFCCP budget request to the Congress now starts the ball rolling toward a final budget for the agency for its coming FY 2021 Fiscal Year (beginning October 1, 2020). In the coming months, the U.S. House of Representatives and then the U.S. Senate will separately publish budgets those Houses of Congress approve. If there is a difference between the House and Senate proposed budgets, Congress will convene a Conference Committee to meet and attempt to work out a resolution. In a Presidential election year, there will be plenty to disagree on, as each side jockeys for a position to create headlines for the Presidential race. Expect fireworks.

Reality Check

Given the lack of bipartisanship in Congress, it has not passed a budget by the start of the new Fiscal Year (Oct 1) since 1996. It prefers to rely on Continuing Resolutions, which continue the prior year’s budget in the absence of agreement on a new budget.

Tuesday, February 11, 2020: DE Talk: Episode 5 Launched! The ROI of D&I is Greater Humanity

Diversity and inclusion is not just a function of talent acquisition; it is a conversation that needs to take place in all departments company-wide. To chase down measurable progress, you must first ask, “What might I do differently?” Only then can you begin to analyze where you are and what you can do to cultivate inclusivity. Shannon Offord, DirectEmployers VP of Strategic Partnerships, sat down with leading diversity strategist, Torin Ellis, to discuss not only how employers audit their processes, but also the foundational steps to empower, explore, and execute diversity efforts within their organizations.

Check out this informative diversity and inclusion focused podcast by listening on the DirectEmployers website or via Apple Podcasts, Google Podcasts, Spotify, or wherever you access podcasts. Catch up on all of Season One:

• Episode One: DE Talk: Invisible Disabilities with Haley Moss
• Episode Two: DE Talk: Veteran Underemployment with David Muir
• Episode Three: DE Talk: Understanding Accessibility for Compliance & Recruitment with Jen Polcer and Ruth Toombs
• Episode Four: DE Talk: Ask the OFCCP Experts: What’s to Come in 2020 with Candee Chambers and John Fox

If you would like to receive a monthly alert of new episodes, subscribe to the DirectEmployers podcast mailing list or text alerts to receive a notification of new monthly episodes.

Thursday, February 13, 2020: DirectEmployers Signed MOU with OFCCP!

In a major milestone for DE, NASWA and OFCCP, we are proud to announce that DE Executive Director Candee Chambers and NASWA Executive Director Scott Sanders signed a formal Memorandum of Understanding (MOU) with OFCCP Director Craig Leen. In light of Director Leen’s announced intention to leave the agency to become the next Inspector General of the U.S. Office of Personnel Management (the federal government’s HR Department), we are especially pleased to finalize this MOU with Director Leen who has been an inspiration to the government contractor community with his “four pillars” of transparency, certainty, efficiency and recognition. This opportunity for DE and NASWA to partner with the OFCCP is an example of the collaborative relationships Director Leen inspires.

Specifically, the parties of this MOU share the “…specific and mutual goals of working together to support OFCCP’s contractor and compliance officer education and training related to compliance with specific aspects of the VEVRAA statute and regulations, in order to increase the efficiency of OFCCP’s compliance evaluations and investigations of contractors, enable voluntary compliance with OFCCP’s regulations, and minimize, to the extent feasible, the cost of compliance by contractors.” You may find the MOU on OFCCP’s website.

Through this collaboration:

“…OFCCP will share with DE and NASWA certain training materials it develops for compliance officers and contractors regarding VEVRAA’s mandatory job listing requirement (hereinafter “training materials”), for the purpose of obtaining any feedback DE and NASWA might have on the topic of listing employment openings with the appropriate employment service delivery system (ESDS). Such feedback may be useful to OFCCP in addressing specific questions and concepts that OFCCP’s regulated community may have about their VEVRAA mandatory job listing requirements.”

There are many wrinkles in and continuing confusion about OFCCP’s VEVRAA job “listing” requirements (they do not require “posting,” as you know; rather job postings are only the “nice to have”). That confusion persists within OFCCP and has created on-going questions for our Members, Government Contractors generally and for OFCCP Compliance Officers. As a non-profit organization dedicated to assisting our Members to list jobs for Protected Veterans, we hope the MOU will further assist OFCCP’s understanding of our important shared mission to provide the “magic sauce” which helps Protected Veterans find jobs and get them more quickly. With NASWA’s assistance, we also hope the MOU will help Government contractors with the important mission of providing more effective “Priority Referrals” for Protected Veterans within each state’s Career One-Stops.

Most importantly, for all three entities–DE, NASWA, and the OFCCP–this MOU further exemplifies and will hopefully further our shared mission on behalf of Protected Veterans.

Thursday, February 13, 2020: NILG Conference Agenda Announced

The National Industry Liaison Group announced the agenda for the national conference to be held on July 28-31, 2020, at National Harbor, Maryland. Your Week In Review authors are excited to be presenting the following sessions:

Tuesday, July 28th (Pre-Conference)

• “Removing the Online Obstacles to Employment: Getting Your Website OFCCP Compliant,” presented by Jennifer Polcer and Dee Anne Faller of DirectEmployers and Sylvia Bailey-Charles of Vocational Rehab
• “21st Century: Video, Online, and Biometrics Considerations,” presented by Candee Chambers of DirectEmployers and Rosemary Cox of DCI

Thursday, July 30th

• “Recent Significant OFCCP Developments,” presented by John C. Fox

Rest assured, the DE Marketing Team is whipping up something fabulous and fun for NILG attendees. We enjoyed Wii bowling last year as we “Strike down compliance” here at DirectEmployers. What excitement will DE have at this year’s booth? We hope to see you there!

Friday, February 14, 2020: MILG Updates

The Michigan Industry Liaison Group (SMILG) held its quarterly meeting and Chair, Tony Kaylin, provided our readers with the following updates:

• The OFCCP case management system has a problem updating the pre-award section of the website. OFCCP is aware of the issue, and its software engineers are trying to fix it. If anyone needs a pre-award notice contact
• The 2019 EEO-1 demographic report will not likely be up before April 1, 2020, as things stand now. (See WIR September 12, 2019 “EEOC Seeks to drop Component 2.” Although the comment period closed on November 12, 2019 (over 11,000 comments), the EEOC has not yet submitted its forms to OMB for approval. Once the forms are submitted, there will be an additional 30-day period during which the public can again comment). Once sorted, Federal Contractors may use the 12/31/19 data for the VETS 4212 reporting.
• As of today, Director Leen will speak at the NILG Conference.
• Section 503 Focused Review Audits are now hitting the Midwest region.

Friday, February 14, 2020: OFCCP Recognized African American History Month

In observance of African American History Month 2020, OFCCP announced its support with highlights of the achievements of civil rights leader Nathaniel R. Jones (1926 – 2020), who championed justice and furthered equality at home and abroad.

The Honorable Nathaniel R. Jones was a lawyer, judge, academic, public servant, and renowned defender of social justice. He was born on May 13, 1926, in Youngstown, Ohio, and served in the U.S. Army Air Corps during World War II. After the war, he pursued his education at Youngstown State University, receiving a Bachelor of Arts degree in 1951 and a Bachelor of Laws degree in 1956. Read more about Mr. Jones and his legacy in the OFCCP bulletin.

Friday, February 14, 2020: EARN Recognized American Heart Month and Age-Related Macular Degeneration/Low Vision Month

The Employer Assistance and Resource Network on Disability Inclusion (EARN) recognized that February is both American Heart Month and Age-Related Macular Degeneration/Low Vision Month. It is also an opportunity to learn about workplace accommodation ideas for employees who may have heart conditions or vision impairments. As part of its Accommodation and Compliance Series, the Job Accommodation Network (JAN) offers a wealth of information regarding both. Like EARN, JAN is funded by the U.S. Department of Labor’s Office of Disability Employment Policy. Read more about accommodations for employees with heart conditions or vision impairments.

DirectEmployers employees also showed their love and support by going red #WearRedDay.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.