A court fight between UPMC and the U.S. Department of Labor has
become a national test of affirmative action rules, drawing
attention from business groups and, this week, advocacy and labor
organizations that fear it will gut a key diversity program.
UPMC has maintained, for nine years, that auditors from the
Department of Labor Office of Federal Contract Compliance Programs,
or OFCCP, had no cause to check the personnel records of three
hospitals for compliance with rules that apply to federal
contractors and subcontractors.
The hospital system has lost that argument at every level, but
now is asking the U.S. Circuit Court of Appeals for the District of
Columbia to reverse lower courts. To business groups, that's a
sensible response to a creeping federal bureaucracy. To civil rights
and labor groups, though, UPMC's position goes too far.
"These really crucial protections that have been in place for
decades, and the approach to enforcing them that's been in place for
decades, that's what's really at stake," said Fatima Goss Graves,
vice president for education and employment for the National Women's
Law Center, one of the groups that filed friend of the court briefs
Monday. "This is a case that a lot of people will be watching
because it will have real implications."
The other organizations are the NAACP Legal Defense and
Educational Fund, National Partnership for Women & Families and
Service Employees International Union.
"These filings by the SEIU and other special interest groups
blatantly misrepresent the issues in the OFCCP matter as well as
UPMC's position in that litigation," wrote UPMC spokeswoman Gloria
Kreps in an email response to questions.
The dispute started in 2004, according to court filings, when
OFCCP auditors sought to review affirmative action plans and inspect
personnel records at UPMC Braddock, UPMC Southside and UPMC
McKeesport. The McKeesport hospital is the only one of the three
that is still open.
The office contended that the hospitals were federal
subcontractors subject to affirmative action rules because UPMC
Health Plan had a contract to provide HMO services to federal
employees and sent them to those three facilities, resulting in $3.5
million in federal payments from 2003 to 2006.
UPMC disputed that, arguing that the hospitals are providing
personal services to the federal employees, and accusing the federal
agency of "attempting to expand its regulatory jurisdiction."
"OFCCP has claimed that it can treat three particular UPMC
facilities as 'subcontractors' under a federal contract awarded to
the UPMC Health Plan when the underlying documents and regulations
specifically show that they were not subcontractors," said Ms.
Kreps. "UPMC entities that are federal contractors or subcontractors
fully comply with OFCCP requirements."
In court filings, UPMC attorneys argue that hospitals in similar
situations have not, for 25 years, been subjected to the obligations
that come with a federal contract. …