Business Coalition Says OFCCP Enforcement Exceeds Agency’s Statutory Authority

May 15, 2020

A coalition of business groups filed an amicus brief arguing that the OFCCP was operating beyond Congress’ grant of authority, and, in its administrative enforcement scheme, has effectively appointed itself “prosecutor, judge, jury, and executioner.”

Background:  Oracle brought suit against the Office of Federal Contract Compliance Programs in November 2019, challenging its constitutional authority to prosecute and adjudicate discrimination claims against government contractors, and award broad injunctive and compensatory relief if the agency finds violations.  The suit does not contest the requirement that federal contractors engage in affirmative action, as required by long-standing Executive Order 11246. 

Regulatory overreach argued:  The business coalition’s amicus brief painted a broad portrait of regulatory overreach, arguing that the OFCCP “relies on an administrative enforcement regime built on an illusory foundation, provides for massive monetary remedies that Congress never authorized, and coerces contractors to settle even meritless claims rather than face years of burdensome and costly litigation before an internal DOL tribunal.” 

Why it matters:  The battle between Oracle and the OFCCP is far from over, but it is possible that Oracle’s suit will bring forth similar challenges to the agency’s power in other pending discrimination suits.  Significantly, a victory by Oracle would not lessen the requirement that federal contractors engage in affirmative action, a goal supported by large companies.  Instead, it would change the enforcement of Executive Order 11246 to reliance upon the courts for adjudication of alleged violations.