The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has published notice in the Federal Register announcing the agency’s intention to codify the procedures currently used to resolve violations, specify the types of evidence required to support discrimination findings, and provide clarifying definitions regarding types of evidence. This move should provide contractors with a higher degree of predictability in terms of resolving conflicts with the OFCCP and, presumably, more uniformity across OFCCP field offices. The agency is soliciting public comment on its notice of proposed rulemaking. Comments are due by January 29, 2020 and can be filed online.
The proposal notes that the OFCCP can proceed with discrimination violations where there is sufficient statistical evidence, and provides definitions for “statistical” and “nonstatistical” evidence. This is important because the agency’s proposed threshold for pursuing a discrimination violation based on statistical results would be different depending on whether or not there was also “nonstatistical” evidence to support an inference of discrimination.
For example, if the OFCCP had nonstatistical supporting evidence indicating potential discrimination in hiring—such as employee testimony about biased remarks, attitudes, or acts—the agency would proceed with formal charges if the statistical analysis of the hiring process also returned the equivalent of 2 or more standard deviations. However, in the absence of nonstatistical supporting evidence, the agency would not proceed unless the statistical analyses returned 3 or more standard deviations. In other words, for the OFCCP to proceed with a discrimination violation based on statistical evidence alone, the threshold is 3 standard deviations, not the usual 2. This has been the stated practice in the FCCM for quite some time, but the reality in the field can often vary widely.
Currently, the agency’s procedures for resolving violations reside in the Federal Contract Compliance Manual (FCCM) available on the OFCCP’s website. But the FCCM is an internal agency document that can be changed at any time and without notice. The agency is not strictly legally bound to follow procedures in the FCCM so contractors’ reliance on that document should be limited. Once codified into the OFCCP’s regulations, however, contractors will be able to rely on the published procedures in a legal sense. These procedures will also be tougher for the agency to change, likely requiring a similar notice and comment procedure under the Paperwork Reduction Act.
Conceptually, the move is a positive one for federal contractors. However, as with so many things, the proof is in the pudding and whether and to what extent the move will ultimately be beneficial or detrimental depends on the procedures that are ultimately codified.