Affirmative Action Comes to a Hospital Near You

By Bill Wright

Does the OFCCP have jurisdiction over hospitals that contract to provide medical services to members of the military? We hoped we were done with this issue when the Congress enacted the National Defense Authorization Act (“NDAA”) in December 2011. The Department of Labor Administrative Review Board (“ARB”) however has decided that the NDAA did not extinguish the issue. OFCCP v. Florida Hospital of Orlando, ARB Case No. 11-011 (July 22, 2013).

Six lawyers from the Department of Labor, 2 lawyers for Florida Hospital of Orlando, and 18 lawyers for various friends of the court have created confusion over this issue for almost 6 years, but the current holding of the ARB is this: a hospital that sub-contracts with a network system to provide services to military personnel has a government sub-contract and so might be subject to OFCCP oversight and federal affirmative action requirements. The ARB left open the issue of whether providing military personnel with healthcare might be an excluded government assistance program. For more information, follow the link here.