November 2013

OFCCP and Franz Kafka’s “Metamorphosis”:
Kafka Had It Right

“When Gregor Samsa woke up one morning from unsettling dreams, he found himself changed” (Fox: wait for it, wait for it) “into a monstrous vermin.”

NOTE: This is my last column for the Local JobNetwork™. It has been a special and dear privilege to share my thoughts about OFCCP compliance with you via the LJN. Lynn Molitor and her crew at LJN have been very good to have conceived this communication channel, to have invited me to participate and to have so carefully edited and published my column for the past two years. I wish you well! Thanks…John

The opening sentence above is the beginning of Franz Kafka’s 1915 novella “Die Verwandlung” (typically translated to mean “The Metamorphosis”). While literary critics generally regard “Die Verwandlung” as one of the greatest works of fiction of the 20th century, it also serves as a fitting allegory and education vehicle helpful to us to understand the transformation of compliance obligations in progress at the OFCCP. While Gregor’s seeming overnight transformation into a “monstrous vermin” is certainly front and center, Kafka’s title for his famous novel invites the reader to consider all of the other ways that Gregor and the other characters are transformed in the course of the story.

How To Answer Any And All Questions About OFCCP Regulations and Requirements: The Vasvary/Copus/Janofsky Rule

But first, a crucial first lesson concerning how to answer questions (any question) about OFCCP compliance. My 9th Grade German Professor Frau Vasvary walked into class one foggy morning in Monterey, California and quite purposely forever altered my life. Before she had even made her way to her desk, Frau Vasvary began instructing my 14 classmates and me in her very proper “Hoch Deutsch” (High, formal German) both that we should immediately begin to translate Kafka’s Die Verwandlung and that we should not consult any German to English translations to aid our understanding of Kafka’s tortured and difficult writing. “It loses something in the translation from German to English”, Frau Vasvary intoned in a clearly agitated and dismissive voice as she warned us not to accept translations other than our own. She wanted to insure transmission of Kafka’s full meaning without dilution, distortion or error: “You need to read it for yourself”, Frau Vasvary directed. Frau Vasvary had formerly been the Chair of the German Department at The University of Heidelberg, the world’s leading Department of German. She was always directive, if not imperious. So many of us thought Frau Vasvary was being simply overly prescriptive and too cautious that morning. But, she was always right about everything, so we all obeyed…except I eventually decided to peek at a well-regarded translation to see whether it in fact departed from my translation. And, it turned out, Frau Vasvary was absolutely right…reading someone else’s interpretation of the words was not quite right. There was a little something lost when one looked back at the original savory words and phrases Kafka had so carefully constructed.

Reading the original text and rules was a lesson I subsequently took with me to law school where I again quickly realized that I should NEVER read summaries of statutes, regulations or even case decisions. You need to read them all in full, from the original text, yourself. (I also found that my first mentor out of law school, David Copus, had the same rigorous training. Even though I ritually assured him the case digests I supplied him at our law firm were accurate, I noticed he always pulled the case decision and read it for himself. While that initially hurt my feelings, I soon realized he too, like Frau Vasvary, was a consummate and rigorous professional.)

I was again reminded of Frau Vasvary’s important lesson 15 years later as I walked into the Santa Monica satellite office of Paul, Hastings, Janofsky & Walker while visiting from the D.C. Office where I had just helped found the Labor & Employment Group. To my surprise, I found the then most famous management-side labor lawyer in the country, Leonard Janofsky, the named partner of PHJ&W, standing in his coat and tie in the library off the front entrance. Leonard was holding a federal case reporter in one hand and a written brief in the other hand. Leonard called out to me, greeted me and when I asked him what he could possibly be doing in the library, he put the book and brief in my hands and asked me to read the case decision passage of interest to him. He then asked me to tell him whether the brief properly described the decision. I told him the brief lost a little in the translation from the case decision. “Exactly what I think”, Leonard said demonstratively raising his otherwise soft voice. “Someone around here has to read what these young lawyers write and make sure it’s right.” I suggested to Leonard that the young lawyers in our office were very lucky indeed to be backstopped by the Firm’s Founder, by a Harvard lawyer who had graduated at the top of his class, by the former nationwide Chairman of the Labor & Employment Committee of the American Bar Association and by the former President of the American Bar Association.” Leonard was all of those things, and more, and was 75 years old during that conversation. He had been “retired” since age 65 in keeping with firm rules he established. Leonard concluded our short chance encounter by saying: “You know it’s great fun. You never stop learning.” Leonard was an inspired labor lawyer and an inspiration to all lawyers.

To answer any OFCCP question, I always start with the precise language of the at-issue statute, regulation and/or case law decision which sets forth the requirement or describes the contractor’s permissions and restrictions. I follow the Vasvary/Copus/Janofsky rule: read the basic rule set yourself, in the original text. (By the way, Leonard learned to read and write Spanish, Portugese and Russian so he could more effectively do his legal work in those countries. He translated Brazilian Labor Law from Portuguese to English for our law firm’s use. Boy, he and Vasvary were cut from the same cloth!) I see so many law firm OFCCP Blogs and HR vendor OFCCP Blogs every week which are usually very well written, and make perfectly good common sense…except there are many which are just plain wrong about the answer to the question they seek to answer. And, usually the culprit is that they did not follow Frau Vasvary’s imperious command: “You need to read it for yourself”. “It loses something in the translation…” Common sense is good, but statutes and regulations and case law decisions are very specific and may or may not follow a logical or common sense path.

Practice Tip: Start by retrieving and reading the exact language of the statute or regulation which pertains to your issue. (Practice Tip: Also, do not trust your memory…especially with the flood of detailed new OFCCP 503 and VEVRAA regulations. Every time I retrieve and read a passage in these new Final (but not yet legally effective) OFCCP Rules, it is as though I see new words I swear were not there yesterday when I last read the same passage. Source statutory or regulatory authority for each and every conclusion you draw. Beware the Internet right now: it is often filled with erroneous, poor and/or incomplete advice. You get what you pay for.)

Gregor Was A Normal Everyday Salesman Who One Day Awoke as a Giant Beetle

So now, back to Die Verwandlung. I pulled out my copy of Die Verwandlung and began to read it in class with my classmates soon after Frau Vasvary charged us to start reading that foggy morning. It was so interesting; I ate a quick lunch later that day and kept reading in the extra time that gulping down my sandwich provided to me. The book was so interesting; I even cut soccer practice short that afternoon so I could plow another hour into Kafka’s ever more grotesque, dark and complicated world.

Die Verwandlung, I discovered, was about a salesman named Gregor who awoke one morning to find himself changed…changed into a large and grotesque insect…a despicable and ugly vermin-like creature…like a Beetle exposed to radioactive material and grown larger than humans. Gregor eventually becomes so irritating to his family that they cannot stand him. Gregor’s family struggles to adapt to his changed and grotesque shape but they find it all but impossible to do. Their trials and tribulations seeking to adapt to Gregor, as changed, consumes the book, and you the reader. And one of the tantalizing questions left unanswered is whether the transformation was sudden, or whether it had been long simmering and then only suddenly came into focus. There is also the haunting question whether Gregor had in fact never changed at all, but perhaps only the world and environment around him had changed his perception of that which he thought he knew to be real.

The Metamorphosis is, of course, a metaphor for the changes which constantly wrench people and our society. Having long said, for example, that “the only thing constant about OFCCP is change”, it has long been my observation over the years that the changes at OFCCP often first appear to be grotesque…like Gregor as transformed. Eventually we, as federal contractors, try to accommodate the changes and we become quickly accustomed to most of them…but not all of them…just as occurred with Gregor’s family. And like Gregor’s family, federal contractors have not become comfortable with the transformation of OFCCP to a kind of grotesque systemic non-discrimination “civil rights” agency. As I have previously written, I have never in the approximately 35 years I have been practicing OFCCP law observed the federal contractor community so at odds with OFCCP as is currently the case. Like Gregor’s family, federal contractors are trying to get comfortable with and adapt to OFCCP’s changed condition as a systemic discrimination investigator and prosecutor. But, it is tough slugging, as Gregor’s family discovered as they too tried to adapt to what they perceived as a large, intrusive, and frightening vermin.

OFCCP NEEDS TO TRANSFORM INTO A PLAINTIFF CIVIL RIGHTS LAW FIRM IF IT WANTS TO EFFICIENTLY AND EFFECTIVELY PURSUE ITS NEW MISSION OF SYSTEMIC NON-DISCRIMINATION ENFORCER

I think today about Kafka’s Die Verwandlung in connection with OFCCP in another way. This is because like Kafka’s protagonist Gregor, OFCCP needs to undergo a central, radical and fundamental change: a complete transformation given its changed direction. OFCCP has now evolved from being a federal contracting agency promoting reduced government prices for goods and services by requiring federal contractors to engage in “Affirmative Action” (initially exclusively, in the 1960s and 1970s) and thereafter slowly but surely converting to a systemic non-discrimination “civil rights agency” beginning in the late 1970s/early 1980s.

I have expressed this sentiment to several OFCCP Directors over the decades who have looked at me with widely expanded eyes as though I had just made a shocking and inappropriate suggestion to them. My suggestion has been that if the modern OFCCP Directors are truly dedicated to converting and making over OFCCP into a systemic civil rights agency (as they all are so dedicated, from Carter to Bush (father and son) to Clinton and now Obama) that they have to also change the basic architecture and design of the OFCCP – the OFCCP needs to undergo, in other words, a complete transformation. OFCCP needs to change its basic design and structure since the agency was built with a different chassis designed for a different journey than that on which it is now embarked…in sum, OFCCP was built for an Affirmative Action mission. This is why federal contractors are so fed up with OFCCP today as it has morphed into a systemic discrimination investigator/prosecutor but still operates from its Affirmative Action design and architecture. Wrong tool for the job. You don’t use a 2-door passenger car to haul heavy lumber: you get a big sturdy long-bed truck with specialized equipment like a heavy-duty suspension, powerful engine and big tires.

Perhaps you respond as several of OFCCP’s Directors have responded to me: “But what about the EEOC? It is doing just fine, isn’t it, with the same general assignment Compliance Officers it has always had?” AND MY ANSWER IS ALWAYS: “But the EEOC does not undertake systemic discrimination investigations and prosecutions, as a rule.” Rather, the EEOC investigates discrete individual charges – almost exclusively – which are ALWAYS limited because bounded by the four corners of the Charge…and of which 80% historically and currently lack probable cause to believe that a violation of one of the statutes the EEOC investigates/prosecutes has occurred. The EEOC Charge docket is pretty discrete, narrow, cabined and populated with less complex investigations and analyses, by and large, than Compliance Reviews which OFCCP attempts every day in every OFCCP District or Area Office. I would add that the EEOC is now trying to mimic the OFCCP and belatedly get into the class and systemic discrimination arena…especially as to failure-to-hire cases. And, as you have seen recently, the EEOC – even while using lawyers to prosecute these cases in the federal courts – has had terrible problems and has been financially sanctioned and often thrown out of court. It is not fair by the way, I do not believe, to say the EEOC’s attempted transition to systemic discrimination has been a failure. I do think it is very fair to say, however, that the EEOC’s adventure has been highly problem fraught to date and its future in the systemic discrimination business currently is highly questionable. If I were the EEOC General Counsel, I would probably decide to “stick to my knitting” – which for the EEOC is individual disability discrimination lawsuits which consistently yield big settlements and large court judgments and jury verdicts. If anything, the EEOC is the proof that attempting to investigate systemic discrimination is both complex and difficult, even before you get to compensation discrimination investigations. (By the way: why are federal contractors buying compensation analysis software? Has the EEOC bought such software? Has the OFCCP bought such software? No. They know that shrink-wrap software will not effectively analyze compensation. These software tools are mere “pacifiers” designed to quiet you and make you think you are getting something for all of your work “sucking on the data”. You need regression analyses and PhD Labor economists to do real systemic class discrimination compensation analyses. Who is OFCCP hiring and to whom is it delegating all compensation analyses? Labor Economists. Do they use shrink wrap software? No. Does OFCCP buy shrink wrap software for its COs to analyze compensation? No. Think about it.)

Specifically, OFCCP Compliance Officers, Assistant District Directors and District Directors are simply not qualified, sufficiently trained or equipped to undertake systemic non-discrimination investigations or analyses. It is not that OFCCP’s COs lack sufficient intelligence to do discrimination work or are poorly motivated employees. Rather, they are the wrong people for the systemic discrimination mission. The Bush Administration (son) and now the Obama Administration have tacitly finally recognized this reality although they don’t want to talk about it publicly for obvious reasons. Charles James, the OFCCP Director in the Bush Administration, first figured out this architecture and design error after a long dinner in San Francisco in which we discussed this issue shortly after he took office. Proof of theorem came several years later as Charles tired of banging his head against the wall trying to train up his OFCCP troops, without avail, and to convert OFCCP’s resources to systemic discrimination audits. While Charles increased OFCCP’s back-pay collections to historic levels, Charles also quickly realized though, that the COs were well-intentioned but entirely unprepared to do battle in audits involving alleged unlawful discrimination. As Charles liked to say, his COs were “going into a gunfight with a knife”.

OFCCP begins the “Era of Specialization”

So, Charles (astutely) began the “era of specialization” at OFCCP in two different ways. Please realize that before Charles and the Bush (the son) Administration, OFCCP Compliance Officers were “generalists” and were responsible for all investigative activities from the Affirmative Action side of the house to the non-discrimination side of the house, from data collection, to data organization, to data analyses, to designing and negotiating remedies. Charles realized that OFCCP COs were in way over their heads as to systemic discrimination analyses so he began the era of specialization by first hiring a flock of PhD Labor Economists (although he did not pay enough to attract either enough of them or ones specially trained into employment discrimination analyses). Charles then required COs to turn in their collected compensation data to the PhDs to analyze the data whenever the contractor’s data failed some simple to apply “trigger tests” (failing the “trigger test” rendered the data sufficiently “interesting” to now advance them to OFCCP’s PhDs for proper scientific analyses).

The second thing Charles did was to start displacing CO analyses of systemic discrimination cases with Regional Solicitors (tapping more specialized skill sets and lawyers more highly trained in analytical thinking) to quietly, behind the scenes, analyze OFCCP’s failure-to-hire cases (OFCCP’s “bread and butter” claim comprising typically 98% each year of its back pay collections). The Solicitors thus began what I call the “Wizard of Oz era” in which “the SOL” silently pulled the strings from behind an opaque curtain while the OFCCP COs continued to be the face of the OFCCP to contractors and pretended to be undertaking the analyses and drawing the conclusions. As a result, Solicitor Office filings of Administrative Complaints plummeted to fewer than a dozen a year as the 1 Fulltime-Equivalent, or so, of Regional Solicitors which OFCCP bought each year diverted to audit investigations. In the Pacific Region, the Regional Solicitors even began to come out of hiding in the waning days of the Bush Administration and present themselves in OFCCP Conciliation meetings alongside the COs and OFCCP District Directors…but the Solicitors always ended up dominating and driving those meetings.

And Then Along Came Pat Shiu

And then along came Pat Shiu, and along with Pam Coukos, the two led the charge on compensation discrimination and then threw the Bush Administration architecture into a higher gear: Pat and Pam entirely displaced the COs as analysts of compensation discrimination and caused the COs to become de facto paralegals. The COs now gather the compensation data, make sure it is complete, organize it and then quietly forward it to the Division of Statistics and Technology (DST) in OFCCP’s National Office Headquarters in Washington D.C. (now converted and renamed the “SAU”: the Statistical Analysis Unit – a “Branch” of the Division of Program Operations in OFCCP’s National Office in Washington D.C.) The SAU now undertakes all systemic or class analyses, generates the questions the COs uncritically present back to the contractor and then act as a forwarding agent back to the SAU when the contractor responds. District Office COs may undertake individual “cohort analyses”…but not systemic analyses for which they have no training or tools.

While OFCCP did all of this silently, contractors soon figured it out as COs began to apologize to contractors that the COs no longer had control of their compensation audits, Regional Directors apologized to contractors that they had lost control of that portion of the audit to Washington D.C. and contractors began to lose patience with COs who could only mumble in response to contractor inquiries seeking clarification of OFCCP’s further data requests (which took the form of numerous “Supplemental Data Requests” as they came to be known…i.e. a seemingly endless stream of written interrogates and document requests OFCCP sent/sends forward to the contractor during the Desk Audit seeking more and detailed data. The record high number of SDRs I have heard tell of is currently 38 separate follow-up e-mail requests for documents – although I now routinely see about 10-15 SDRS per audit…during what contractors often call “the audits from hell” as they grind on and on, typically for 1-2 years, and many for many more years. My law firm now has on its OFCCP docket about a half-dozen audits which are in excess of four years old with the ball in OFCCP’s court often for 3-6 months at a time in each.)

The other thing Pat and Pam did was to tap harder the “brain trust”: i.e. the Solicitor’s Office. For the last 18 months, it is now not uncommon for Robert Beal, Esq., the Solicitor for Civil Rights in the Dallas Region (formally known as the S.W.A.R.M. = Southwest and Rocky Mountain Region) to join OFCCP District Directors and Regional Director Melissa Speer on OFCCP conciliation calls long before Administrative Complaints are filed and sometimes even before OFCCP has issued a Notice to Show Cause. Similarly, Channah Broyde, Esq., a very experienced Civil Rights Solicitor in charge of the Atlanta Region’s OFCCP docket, emerges from time-to-time from behind the curtain to helpfully push along OFCCP systemic cases which have gotten stuck or which raise systemic issues OFCCP cannot properly analyze. The Chicago Regional Solicitors are also frequently involved in audits, OFCCP COs routinely report, although those Regional Solicitors still primarily prefer to “hide behind the Wizard’s curtain” and not show themselves to the contractor until a very rare Administrative Complaint is about to issue. But, their stealth engagement of OFCCP audits does not mean they are not there: they just prefer to lie in wait like snipers hidden from view by their camouflaged Ghilly suits. In the meantime, the number of OFCCP Administrative Complaints the Solicitor’s Office has filed nationwide has further recently plummeted to fewer than five per year as OFCCP hungrily sucks down these lawyer resources in an ever greater number of complex and time consuming systemic audit investigations. While civil rights activists decry the almost non-existent OFCCP litigation presence, the question becomes “What do you value and what do you fear”? Choices…making good choices is always the subject of controversy.

THE CONCLUSION

The punch line is two-fold:

  1. SPECIALTY ANALYSTS ARE NOW THE ORDER OF THE DAY AT OFCCP: Contractors will watch, I predict, in coming months and years as OFCCP increasingly moves discrimination analyses away from the generalist COs and more towards specialist PhD Labor Economists and lawyers. (What is OFCCP’s budget hope for the current Fiscal Year 2014 – part of the federal budget over which the Congress has been battling and which led to the recent GOVERNMENT SHUTDOWN? 6 new PhD Labor economists: one for each of OFCCP’s 6 regions – again dusting off an old Bush Administration idea which showed great promise to help OFCCP convert to an effective and full-fledged systemic discrimination agency.)

    So what’s the Practice Tip: (1) write for the downwind reviewers you cannot see and to whom you will not speak; (2) counsel your company stakeholders to be patient. It is taking OFCCP 1-2 years for most audits, irrespective of the merits of the data. OFCCP is grinding, by purposeful design more deeply and more finely. OFCCP’s now routinely long haul audits do not signal your company did something wrong nor is OFCCP’s long audit running-time reflective of a private OFCCP conclusion that “this is a big and problematic case”.

  2. THE PENULTIMATE FINAL TRANSFORMATION OF OFCCP IS NOW IN PROGRESS: It will not be the Obama Administration (which already has a rather full and ambitious agenda which it is struggling to fulfill and will not fulfill – it will run out of time before it runs out of ambition), but it will fall to the next OFCCP Director after Pat Shiu to realize that half measures will not work and that a full metamorphosis is needed if OFCCP is to transform into the dreaded bigger than life vermin – ala Gregor’s transformation – to harass and irritate the contractor community through effective systemic discrimination investigations and prosecutions. What that architecture should look like, I have long believed and long told OFCCP leaders, is a chassis designed like that of a private plaintiff’s law firm. If the agency is indeed serious about prosecuting systemic discrimination, it needs to rebuild itself to look like a plaintiff’s litigation law firm. OFCCP needs to convert about 3/4ths of its approximately 750 Compliance Officers and managers to lawyers, place them in six regional litigation centers – one in each of OFCCP’s six regions – and use the remaining OFCCP Compliance Officers as paralegals to gather, sort, quality control check data for completeness, and forward the data to their lawyer to investigate, resolve and/or prosecute litigation-worthy case files.

    The contractor will both delight in and despise this transformation. The contractor community will delight in this change since it will no longer be bedeviled by numerous irrelevant and burdensome OFCCP data requests which go nowhere slowly. Contractors, I predict, would similarly be relieved of the numerous unfortunate “non-starter” discrimination claims OFCCP puts forward in audits every year to the great dissatisfaction of contractors who know OFCCP is off on a wild fishing expedition leading to nowhere while they all-the-while construct a strategy to force the audit to the Solicitor’s office to use the SOL as the “brake” on OFCCP’s ill-informed and burdensome investigatory adventure. However, the contractor community would – like Gregor’s family – despise Solicitor Office investigations of federal contractors as vermin-like intrusions on their peace and tranquility. Heaven forbid were OFCCP to ever become an effective AND efficient investigator and prosecutor of discrimination OFCCP’s statutes make unlawful!

    Currently, the Obama OFCCP criticizes its discrimination detection tools and has thrown them out one-by-one. (So, as to compensation, for example, this Administration first vanquished the Bush Administration’s 5:30:10 “trigger test” to find compensation data sufficiently interesting to send to the OFCCP National Office PhDs in the DST (now SAU) for further review. This Administration then secretly in June 2010 installed its own “hair trigger” test known as the “2 or 2” test (i.e. if there were merely a difference in compensation of $2,000 or 2% the COs shipped the data to the NO and the PhDs got out their regression analyses and went to work). Then, decrying a lack of success in finding the otherwise SNARK-like systemic compensation discrimination this Administration claims is lying everywhere about the land, OFCCP flailed out at the Bush Administration and claimed that two “Guidelines” the Bush OFCCP team issued in 2006 (which did not have the binding force or effect of law) had nonetheless been hampering OFCCP’s ability to successfully investigate, find and prosecute compensation discrimination. One Guideline merely said OFCCP would use Title VII standards. The other Guideline (while laughable, even while well-intentioned) offered contractors a chance to avoid sending in compensation data in response to OFCCP’s paragraph 11 compensation data request if the contractor would agree to voluntarily send OFCCP a full regression analysis, and if the contractor had one.)

    These two Guidelines were innocuous but OFCCP declared its freedom of them and predicted compensation class actions would thereafter roll in. When that did not happen, OFCCP then threw out the “2 or 2” test, in yet another secret Directive and in secret compensation training manuals then announced a “case-by-case” approach. This is what senior OFCCP officials now like to call a “nuanced approach”…meaning OFCCP analyzes compensation in any fashion which strikes the agency as reasonable and useful. Contractors are outraged by this “nuanced” case-by-case approach because they cannot predict its outcome. Contractors should not be upset by this development, though: it is the correct answer the law calls for and it is appropriate for a maturing OFCCP morphing into a more sophisticated analyst of compensation data. If you want to know what OFCCP is going to find when it analyzes your comp data, undertake a private (hopefully attorney-client privileged) review of your compensation systems first using OFCCP’s legal standards and then using Title VII standards (the two are different as we explained at this year’s (and last year’s) October National Employment Law Institute Affirmative Action Briefings in Chicago, Washington D.C., San Francisco and Austin.) Oh, and be sure to avoid confusing these analyses with the self-audits of compensation federal contractors are obligated to do as part of their annual Affirmative Action Plans for Minorities and Women pursuant to 41 CFR Section 60-2.17 (b).

And now, the Solicitors, as they morph into true audit investigators and analysts of failure-to-hire cases, are starting to learn their new craft and that they need to examine contractor disposition codes and undertake statistical analyses which remove those expressions of interest from OFCCP’s statistical analyses where the contractor has identified legitimate non-discriminatory reasons for the otherwise seeming disparity in entry-level selections. This is the natural progression of the specialization and metamorphoses Charles James began and Pat Shiu is now furthering very quickly.

What if? WHAT IF…the reason OFCCP cannot find compensation discrimination is NOT because they have the wrong tools – as this Administration has believed to date – or what if it is not that compensation does not exist on a widespread basis as the contractor community widely believes. What if the explanation for OFCCP’s paltry compensation back pay collections is merely that OFCCP’s agency architecture has been wrong and is still wrong? What if compensation and failure to promote discrimination is really out there, but OFCCP has sent the wrong analysts to the scene of the wrongdoing?

I am reminded in this regard of a story David Copus told me years ago. David was the founder and first Director of the EEOC’s Systemic Discrimination Division. He was soon thereafter – at the tender age of 29 – the investigator and prosecutor of the largest civil rights case in history: (EEOC v. AT&T)…the case that integrated women into the offices and factories of America. AT&T was then the world’s largest industrial employer with over 1.1 million employees, of whom approximately 125,000 were “Long Line” repairmen. The Long Line repairmen were 100% male…in 1973 (10 years after President Kennedy signed the Equal Pay Act into law, 9 years after President Johnson signed Title VII into law and 8 years after President Johnson signed Executive Order 11246 into law). Of course, Copus forced the Long Line repairman job classification to be integrated as part of the massive Consent Decree which AT&T signed in 1973. While the settlement teams struggled with many issues surrounding the insertion of women into the several all-male jobs at AT&T and to insert men into the approximately 75,000 employees almost all-female “Operator” classification, numerous nagging equipment and training issues arose. As to women in the Long Lines division, AT&T needed to order new work clothes in much smaller sizes appropriate for women and had to design and special-order new smaller hob-nailed boots to allow women to climb telephone poles and tall steel telephone towers which crisscrossed the nation to deliver phone calls to every household in America. But, one accommodation-of-women-problem remained stubborn and elusive for months at the settlement table: how to make it possible for typically shorter and less physically strong women to heft, pluck and haul the long heavy wooden ladders onto/off the sides of telephone repair trucks. These heavy ladders – critical to the work of the Long Line repair crew – hung high from the reach of kids on two hooked pegs welded to the sides of the AT&T repair truck. The ladders had to be dismounted through an extended reach overhead dead-lift of the heavy and unwieldy ladder. The repairman would then drag the dismounted ladder to the foot of telephone poles to gain access to the metal spikes driven into the sides of telephone poles far above the ground to prevent kids from climbing up the poles or towers and falling to their death or serious injury. Lawyers noodled “the ladder problem” for months without success…the day an AT&T engineer fortuitously wandered down by the AT&T legal department where settlement negotiations were in progress and accidentally ran into one of AT&T’s settlement lawyers in the men’s bathroom. After the lawyer described the ladder problem which was consuming him, the engineer immediately snapped: “Oh, I can solve that problem”. Incredulously, the lawyer asked how? The engineer replied that all the company had to do was to weld a third hangar spike on the side of the repair truck (in the middle between the other two spikes), mount that third spike on a swivel, have the long line repair person then stand the ladder straight up on one end (and not try to lift the entire ladder overhead on extended arms) and then jerk the ladder up about a foot onto the new third (middle) peg, and then rotate the ladder into place over the two outer pegs as the ladder hung its weight on the middle swivel peg…the way all AT&T Long Line repair personnel today mount and dismount their still heavy and bulky ladders.

PUNCHLINE: It’s somewhat important to have the right analysts on the job…as first Charles and now Pat has figured out. (NFL coaches figured out decades ago that they needed “Special Teams” to handle kick-offs and punt-returns. Hockey Coaches have known for centuries that they needed “Special Teams” for short-handed Power Plays and for Shoot-outs.) OFCCP is now realizing that in a specialists’ world, it too needs specialists: “guns at a gunfight”.

UNTIL OFCCP completes its transformation and converts its lawyers to investigators and analysts, as David Copus did in 1973 with his team of how many? (four: himself, another lawyer, an investigator and a Labor Economist), OFCCP will continue to lead many contractors on frustrating, burdensome and embarrassing (to the agency) data sleigh rides lasting several years. And, all the while, the nation will be left to wonder: is it poor tools, poor analysts, or that there just is not any systemic discrimination anymore for OFCCP to find and cure?

In my mind, the question is not whether, but simply when OFCCP replaces – IN THEIR ENTIRETY – Compliance Officers as analysts of discrimination facts and law (in which they are not even trained by the way) AND OFCCP COMPLETES ITS TRANSFORMATION. So, what’s the Practice Tip: Contractors, too, need to get more specialty oriented and need to start converting their Affirmative Action personnel to lawyers, or at least making the lawyers part of the team since it is all about discrimination law these days at OFCCP (with a fleeting nod at outreach and job listing issues). Learn to dance with your dance partner, and learn the new dance steps.

FINAL NOTE: Frau Vasvary was exactly right and you should take heed: The first thing I discovered in error about many of the German to English translations of Die Vanderlung was the name of the novel itself, as translated. Verwandlung really means “transformation”…not “metamorphosis”. You might think the two words mean the same thing…so why quibble. They really don’t mean the same thing, and it makes a BIG difference, I submit, to understand Kafka’s meaning – and also to understand the change currently occurring at the OFCCP.

Transformation is an “exogenous”-driven change. (In Greek, “exo” means outside…this is where we got the word “exit”) and “gigomi” means “to come to be”…to occur.) So, you will remember from your biology and chemistry classes that exogenous changes, for example, are ones driven by an external implantation of new organic material different from the host cell: change driven from outside forces, if you will. An “endogenous” change, by contrast, is a true “metamorphosis”: a cell following its natural pre-coded instructions and internally-driven mutation cycle; a caterpillar to a butterfly, for example, internally driven change, if you will.

So, what is the driver of OFCCP’s change? Is it “exogenous” or “endogenous”…a “transformation” or a “metamorphosis”? (Gosh, it is sinful how much fun lawyers can have with words!) What happened to Gregor in Die Verwandlung? Most scholars have ultimately concluded that Kafka was commenting on the advent of industrialization – the beginning of the era of specialization and the end of the era of crafts and guilds – and the increasingly isolating influence that technology wrought on society. (Fast forward to today to an era of texts, broadcast e-mails and Facebook “friends”.) So, that is really external pressure forcing a change=exogenous driven change. Gregor did not transform due to pre-coded DNA instructions. He was a victim of his environment. (Now you see why the academics have hailed this tiny novella: it is the foundation, among other things, of the criminal sociology that criminals are not really responsible for their acts…their environment, their upbringing, their mistreatment brought them to transform and rob and kill and disrespect other people.) By the way: OFCCP is Gregor!

Enjoy! It’s been a blast writing for you! Be careful out there. John

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.