EEO Compliance Dispatch

Catherine Eschbach, a lawyer formerly with Morgan, Lewis & Bockius LLP, is the newly appointed Director of the Office of Federal Contract Compliance Programs.

In January, Michele Hodge was Acting Director.

In February, Michael Schloss was Acting Director, and Michele Hodge became Deputy Director. 

Now, in March, Catherine Eschbach is the Director of OFCCP, and according to a news release from the U.S. Department of Labor, there is no indication that she is in an “acting” role. The news release did not address what role Mr. Schloss or Ms. Hodge now have at the agency, and the OFCCP’s website continues to be virtually non-existent.

At Morgan Lewis, Ms. Eschbach worked in the “appellate group where her practice focused on complex constitutional, statutory, and administrative law issues,” and “she spearheaded successful path-making litigation to return the federal government’s practices to its [sic] constitutional limits, including issues affecting OFCCP.” In addition to a six-year stint at Morgan Lewis, Ms. Eschbach was a law clerk for now-Chief Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the Fifth Circuit and Judge David Hittner of the U.S. District Court for the Southern District of Texas. She graduated from Pepperdine University Caruso School of Law.

Shortly after the DOL’s announcement, Bloomberg News (paid subscription required) reported to have reviewed an email from Ms. Eschbach to OFCCP staff. According to Bloomberg, this communication set out an aggressive agenda for an agency facing significant staffing cuts. Ms. Eschbach indicated that the OFCCP will do the following:

• Perform “’an autopsy’ of the agency’s actions as part of an extensive review of the office and the businesses it regulates.”
• Confirm that contractors have “wound down” use of Executive Order 11246 affirmative action plans.
• Examine previously submitted affirmative action plans to determine whether they “indicate the presence of longstanding unlawful discrimination.”
• Ferret out diversity, equity, and inclusion programs revealed in AAPs previously submitted by contractors.
• Refer discrimination matters to other enforcement agencies.
• Consider whether new rulemaking is appropriate, including whether enforcement of Section 503 and VEVRAA should be assigned elsewhere.

Significantly, many affirmative action plans in the OFCCP’s possession contain outdated and stale data that would be beyond the statute of limitations in most situations. The rescission of Executive Order 11246 stripped the OFCCP of any authority relating to discrimination based on race, color, sex, national origin, religion, gender identity, and sexual orientation. Therefore, at most, the OFCCP presumably would be limited to referring those issues to other agencies, such as the U.S. Department of Justice or the U.S. Equal Employment Opportunity Commission.

Regarding the review of prior affirmative action plans, the OFCCP has always policed contractors for both traditional and so-called “reverse” discrimination, citing many contractors for allegedly discriminating against men or non-minorities. Thus, it is unclear what this planned dissection would uncover that was not previously investigated by the agency. 

As the OFCCP’s mission and priorities continue to change, please contact any member of Constangy’s EEO/Contractor Compliance, Reporting & Analytics practice group.