President Trump revoked Executive Order 11246, among others, in a presidential action titled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” EO 11246 and its related executive orders stood as the underlying authority requiring federal contractors to comply with race and gender affirmative-action obligations.
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For the first time in almost 40 years, the Department of Labor (DOL) announced the issuance of regulations designed to update and modernize the Davis-Bacon and Related Acts (DBRA), which require the payment of locally prevailing wages and fringe benefits on federal contracts for construction. The aptly-named final rule, Updating the Davis-Bacon and Related Acts Regulations (the Rule) will go into effect 60 days after its publication in the Federal Register.
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As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College, No. 20-1199 (U.S. June 29, 2023), it is not surprising that elected officials — including 13 state attorneys general — have markedly different views about the philosophy and effects of affirmative action and other race-conscious policies. So, what should potentially affected organizations do in response to this legal uncertainty? We suggest taking a breath and bringing method to the madness.
For the full alert, visit the Faegre Drinker website.
On June 29, 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina et al., holding that race-conscious admissions programs used by Harvard College and the University of North Carolina are constitutionally impermissible. Both public colleges and universities, and private institutions receiving federal funds, are prohibited from considering race in admissions decisions. As a result of the decision, institutions may also need to evaluate other areas in which educational services or benefits potentially take race into account, including but not limited to the provision of scholarships or grants. There may also be significant implications for employers’ voluntary affirmative action and DEI programs, as well as potential implications for mandatory affirmative action for government contractors, as a result of the decision.
As covered in a previous alert, on August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notified its federal contractor base that it received a request under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2016-2020.
Contractors initially had until September 19, 2022, to file individualized objections to the production of their EEO-1 reports. Importantly, the OFCCP has extended the deadline to file an objection to October 19, 2022, to allow contractors sufficient time to ascertain whether they are covered by the FOIA request and submit objections.
On August 26, 2022, the Eleventh Circuit held that President Biden likely exceeded his authority by issuing the federal contractor vaccine mandate and affirmed the district court’s injunction prohibiting the federal government’s enforcement of the mandate against the plaintiffs. But the court also determined that the nationwide injunction — which applied to any contractor anywhere in the United States, plaintiff or not — was a “drastic form of relief.” Accordingly, the court vacated the district court’s injunction to the extent that it bars enforcement of the vaccine mandate against contractors who are not parties to the lawsuit.