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The Power of Now
Groups’ Amicus Briefs Defend Forty Years of Established Rules Assuring Opportunity for Everyone
(Washington, D.C.) Two amicus briefs were filed today in the U.S. Court of Appeals for the District of Columbia Circuit Court challenging the University of Pittsburgh Medical Center’s (UPMC) claim that the Office of Federal Contract Compliance Programs (OFFCP) does not have authority to conduct audits to ensure compliance with non-discrimination laws that provide equal employment opportunities for women and people of color. The briefs—one filed by the National Women’s Law Center, the NAACP Legal Defense Fund, and the National Partnership for Women & Families and the other by SEIU—underscore the critical role OFFCP plays in protecting the rights of workers. Although UPMC—Pennsylvania’s largest health system and non-governmental employer with over 55,000 employees—provides services to federal employees in the western part of the state, it initially claimed that it was not a federal subcontractor. When UPMC lost its bid to evade equal opportunity regulations, it appealed and argued that the government has no authority to require fairness in contracting.
UPMC offers medical services to federal employees under contracts with the UPMC Health Plan, which has a contract with the U.S. Office of Personnel Management to provide health insurance to federal employees working in southwestern Pennsylvania. As a government subcontractor, UPMC must legally comply with non-discrimination and affirmative action provisions.
The two amicus briefs cite UPMC’s legal challenge as 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. Rather than adhere to basic compliance measures like countless other federal contractors and subcontractors, UPMC has chosen a litigious route to avoid disclosing its employee hiring practices. Specifically, UPMC is urging a federal appeals court to invalidate the U.S. Department of Labor’s equal opportunity regulations that require federal contractors and subcontractors to provide information about their hiring practices of women and people of color.
“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,” said Veronica Joice of the NAACP Legal Defense Fund. “We trust that the court will not set us back decades to a time when millions of Americans were treated as second class citizens.”
"Equal opportunity laws and regulations have been essential in advancing fairness in the workplace for women and people in communities of color for decades,” added National Partnership for Women & Families Senior Advisor Judith L. Lichtman. “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."
“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.”
Three UPMC facilities—UPMC Braddock, UPMC McKeesport, and UPMC Southside—are contracted to provide medical services and supplies to federal employees enrolled in UPMC Health Plan.
Like all federal contractors and subcontractors, UPMC is required to report on its compliance with affirmative action provisions. In January 2004, the OFCCP sent letters to UPMC stating that it had been selected for a compliance review. UPMC refused to submit information demonstrating compliance and refused to allow OFCCP representatives to conduct routine inspections. Instead of complying, UPMC sent a joint response denying that it held government subcontracts, and therefore that it was not required to submit to inspection.
In 2006, the OFCCP submitted a complaint against the hospitals, and a government review board concluded that the hospitals were government subcontractors. UPMC’s hospitals then appealed that decision to the Federal District Court in the District of Columbia, arguing again that they were not government subcontractors and therefore were not subject to the affirmative action and equal opportunity requirements imposed on government subcontractors. The District Court concluded that the hospitals were government subcontractors and ordered them to comply.
Rather than allow a routine OFCCP inspection, UPMC decided to take further legal action, appealing the District Court’s decision to the United States Circuit Court of Appeals. In this current appeal, UPMC makes the unprecedented and extremely dangerous argument that the OFCCP and the Department of Labor have no authority to impose affirmative action and equal opportunity on any government contractors or subcontractors.
- Meet the chutzpah hospital!: Healthcare giant defies feds, denies it has employees, Josh Eidelson, Salon, January 3, 2014