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Civil rights groups, SEIU file amicus briefs on behalf of OFCCP in hospital subcontractor case

By Cynthia L. Hackerott, J.D.

A coalition of civil rights groups and the Service Employees International Union (SEIU) recently announced the filing of two amicus briefs in a high profile case, UPMC Braddock v Perez (No 13-5158), currently pending before the D.C. Circuit Court of Appeals, in which three hospitals affiliated with the University of Pittsburgh Medical Center (UPMC) Health Plan have challenged the OFCCP’s assertion that the hospitals are federal subcontractors subject to the agency’s jurisdiction. The National Women’s Law Center (NWLC), the NAACP Legal Defense Fund, and the National Partnership for Women & Families have jointly filed one brief and the SEIU filed the other. In a joint statement, the groups note the appeal has the potential to undo the entire legal framework supporting the role of the OFCCP, adding that their briefs underscore the critical role the OFCCP plays in protecting the rights of workers.

The hospitals have appealed a March 30, 2013, ruling by the federal district court for the District of Columbia holding that although the hospitals did not directly contract with the federal government, they were still subject to OFCCP jurisdiction as federal subcontractors. The district court found that the hospitals were covered federal subcontractors because they had contracts with an HMO (the UPMC Health Plan) to provide medical products and services covered by the HMO under the HMO’s contract with the US Office of Personnel Management to provide medical coverage to U.S. government employees.

Hospitals’ arguments. In their appellate brief, the hospitals assert, among other arguments, that neither Title VII nor the Federal Procurement Act provide the necessary legislative authority for the affirmative action programs for minorities and women required by the OFCCP’s regulations implementing Executive Order 11246.

Amicus briefs. The two amicus briefs filed by the civil rights groups and the SEIU assert that the hospitals’ legal challenge is “an unprecedented and radical move that, should it prevail, would undo decades of established federal protections created to eradicate discrimination and ensure equal employment opportunities for all American workers,” the joint statement notes.

“UPMC’s efforts to dismantle these regulations should concern the workers at these hospitals and really workers across the country,” said Fatima Goss Graves, NWLC Vice-President of Education and Employment. “What may appear to be a small legal appeal has the potential to unravel decades of anti-discrimination measures that protect workers and are widely supported.”

“Americans fought long and hard for these crucial protections that make sure women and people of color have equal opportunity in the workplace,” saidVeronica Joice of the NAACP Legal Defense Fund. “We trust that the court will notset us back decades to a time when millions of Americans were treated as second class citizens.”

“Particularly at this time when there is a national mandate to reduce health disparities and improve outcomes, the public and governmental interest in promoting a diverse health care workforce and fighting discrimination could not be more clear,” added National Partnership for Women & Families Senior Advisor Judith L. Lichtman.

“UPMC is not above the law. It aggressively attacks workers who speak up for their rights, and the federal government has already issued historic complaints against UPMC because of its treatment of workers,” said Neal Bisno, president of SEIU Healthcare Pennsylvania. “Now, in addition to these attacks, this massive employer is actually seeking to change the rules and evade its role in uplifting all workers, including women and people of color.”

Litigation background. In November 2006, the OFCCP filed administrative complaints against the defendant hospitals alleging that they had violated the laws enforced by the OFCCP by refusing to permit the agency to conduct compliance reviews. In a January 16, 2008, decision, a DOL Administrative Law Judge (ALJ) found the defendant hospitals to be subcontractors subject the OFCCP jurisdiction, and ordered the hospitals to permit the OFCCP to proceed with its compliance review (OFCCP v UPMC Braddock, DOL ALJ, Nos 2007-OFC-1, 2007-OFC-2, 2007-OFC-3). The DOL’s Administrative Review Board (ARB) affirmed the ALJ’s decision on May 29, 2009 (OFCCP v UPMC Braddock, DOL ARB, No 08-048). Pursuant to the Administrative Procedure Act, the hospitals sought review in the federal district court.