Georgia Tech Procurement Assistance Center

What do contractors do now? Interpreting OFCCP’s compensation discrimination directive

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For the third time in the last 10 years, the Office of Federal Contract Compliance Programs (OFCCP) has revamped its guidance on compensation investigation and enforcement by issuing Directive 2018-05 and publishing frequently asked questions (FAQs) on the new directive.

This internal agency directive, while not having the force of law that a court holding or regulation would have, does provide federal contractors with some information on how OFCCP may evaluate their compensation in OFCCP audits. This directive will apply to compliance evaluations scheduled on or after August 24, 2018, and may be used by OFCCP in earlier, open cases to the extent it doesn’t conflict with prior guidance or procedure.

On Which Pay Cases Will OFCCP Focus?

In the directive, OFCCP offers general guidance on the legal theories under which it will pursue compensation discrimination and how those align with program priorities. Stating that compensation disparities can be created through inequities in monetary compensation, inequitable training or advancement opportunities, and assignment/placement differences, OFCCP reiterated its reliance on statistical analyses reflecting a statistically significant difference of two standard deviations or more as well as non-statistical (or anecdotal) evidence of discrimination. (Anecdotal evidence could be testimony regarding biased statements or remarks, examples of differential treatment, testimony about individuals who were given misleading or contradictory information about employment or compensation practices, etc.)

Signaling a potential shift in agency practice, however, the directive notes that “OFCCP will be less likely to pursue a matter where the statistical data are not corroborated by non-statistical evidence of discrimination unless the statistical evidence is exceptionally strong.” (OFCCP does not define the phrase “exceptionally strong.”) Moreover, a footnote explains that OFCCP may pursue a case without anecdotal evidence if the agency detects patterns of discrimination over several years or at multiple contractor establishments. Finally, OFCCP may conduct comparative analyses of small groups of similarly-situated employees to determine if pay differences due to discrimination exist.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=733422

What contractors need to know about new sex discrimination rules

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OFCCPOn June 15, the Office of Federal Contract Compliance Programs (OFCCP)  published a final rule detailing the obligations of federal contractors to ensure nondiscrimination on the basis of sex, and to take affirmative action to treat all applicants and employees equally without regard to sex.

OFCCP is an agency within the Labor Department that enforces a number of employment-related laws applicable to federal contractors, including Executive Order 11246, which bars discrimination on the basis of sex and race. OFCCP originally published its Sex Discrimination Guidelines in 1970, but had not previously revised them.  This new rule represents the agency’s interpretation of Executive Order 11246 as it relates to discrimination on the basis of sex, sexual orientation, or gender identity in light of 45 years of legal developments.

The new rule takes effect Aug. 15, 2016.

Keep reading this article at: http://www.govexec.com/excellence/promising-practices/2016/07/what-contractors-need-know-about-new-sex-discrimination-rules/129938

 

DOL issues final rule revising sex discrimination guidelines for federal contractors

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OFCCPOn June 15, the U.S. Department of Labor (DOL) issued a final rule revising the Office of Federal Contract Compliance Programs’ (OFCCP) long-standing sex discrimination regulations.

According to the DOL, the rule “substantially revises the existing sex discrimination guidelines, which have not been substantively updated since 1970, to align them with current law and legal principles and address their application to contemporary workplace practices and issues.”

The final rule is effective August 15, 2016, and applies to employers with federal contracts or subcontracts totaling $10,000 or more over a 12-month period, unless those employers are otherwise exempt. The final rule implements Executive Order 11246, which after amendments issued by President Obama, prohibits sex discrimination, including on the basis of sexual orientation and gender identity.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=501884

Federal contractor guidance on prohibiting LGBT discrimination arrives amid heated Congressional debate

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EO 11246The Labor Department yesterday (June 15, 2016) published detailed guidance to help federal contractors comply with an executive order that prohibits companies from discriminating against LGBT employees.

The final rule updates existing anti-discriminatory guidelines already on the books to include sexual orientation and gender identity and explains contractors’ obligations and potential costs related to implementing the amended Executive Order 11246, which President Obama issued in July 2014. The original E.O., issued by President Lyndon B. Johnson in the 1960s, prohibited federal contractors from discriminating against any employee or applicant for employment because of race, color, religion, sex or national origin. Obama updated it to include the language related to LGBT employees and applicants, and added protections against retaliation for employees who openly discuss or disclose compensation.

The E.O. applies to federal contractors and subcontractors who do more than $10,000 in business with the government in one year.

Keep reading this article at: http://www.govexec.com/contracting/2016/06/federal-contractor-guidance-prohibiting-lgbt-discrimination-arrives-amid-heated-congressional-debate/129070

Governments struggle to root out fake minority contractors

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DBE Fraud HotlineMargie Sollinger knew something wasn’t right about the companies doing business with Portland, Oregon. As the city’s ombudsman, Sollinger had for some time been hearing from business owners about fraud in the city’s minority- and women-owned contracting program. But it wasn’t until she received a specific complaint in 2013 — about a certified minority-owned construction firm doing work for Portland’s housing authority — that she decided to take action. According to the complaint, the firm was merely acting as a pass-through, winning valuable city contracts and then subcontracting the work out to non-minority companies.

Like many cities and states, Portland has a program allowing it to give special consideration to women- and minority-owned companies when handing out government contracts. The goal, of course, is to help support traditionally disadvantaged companies by giving them a leg up. But as Sollinger began to discover, the city wasn’t necessarily helping the firms it thought it was.

When she first started looking into the housing contract complaint, she wasn’t sure where to turn. “As ombudsman, the most I can really do is make recommendations,” she says. “But even still, I reached a lot of dead ends.” According to state law, the city of Portland wasn’t allowed to take action against minority-owned firms it believed to be fraudulent; those complaints had to be referred to the state. But Sollinger says the state Office of Minority, Women and Emerging Small Businesses initially shrugged her off. So she referred the case to the Oregon Department of Justice, where the investigation continued for nearly two years. Ultimately, the contracting firm was forced to relinquish its minority certification and pay $15,000 to the state. State legislators took an interest in the issue, and last year passed legislation allowing all public agencies in the state to conduct their own investigations into future allegations of minority contract fraud.

Keep reading this article at: http://www.governing.com/topics/mgmt/gov-women-minority-contracting.html

Related: http://www.governing.com/columns/col-problem-with-preferential-bids.html

Rehabilitation Act allows discrimination suits against independent government contractors

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accomodationIn a case involving a San Antonio plaintiff, the U.S. Court of Appeals for the Fifth Circuit has ruled that employees can sue independent government contractors for discrimination under Section 504 of the Rehabilitation Act of 1973.

Attorney Tiffany Cox of Ogletree Deakins in San Antonio says the decision, though in line with two other federal appeals courts, is part of a split because the Eighth Circuit has ruled the opposite.

“The Ninth and Tenth circuits have held that the Rehabilitation Act does not incorporate the (Americans with Disabilities Act) requirement that any plaintiff (must) be an employee of the defendant, and the Fifth Circuit followed their reasoning in deciding the Flynn case,” Cox said.

“Thus, companies doing business in those jurisdictions must pay close attention. The Eighth Circuit, on the other hand, reached the opposite conclusion and determined that the Rehabilitation Act requires the existence of an employer-employee relationship. The Supreme Court has yet to resolve the split.”

Keep reading this article at: http://legalnewsline.com/stories/510701198-fifth-circuit-rehabilitation-act-allows-discrimination-suits-against-independent-government-contractors

Another day, another rule for federal contractors

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As we previously noted, federal contractors have been besieged in recent months with regulatory changes and enforcement initiatives advanced by the Office of Federal Contract Compliance Programs (“OFCCP”) and various divisions within the Department of Labor (“DOL”). The holiday season has not offered any relief, as the DOL recently announced its final rule implementing Executive Order (“EO”) 13672 on December 3, 2014.

EO 13672, signed by President Obama on July 21, 2014, required the DOL to update the rules that implemented EO 11246, which previously prohibited discrimination by federal contractors and subcontractors on the basis of race, color, religion, sex, and national origin. EO 13672 called for the DOL to add gender identity and sexual orientation to the classes that EO 11246 protects. President Obama’s directive is the first federal action aimed at ensuring LGBT workplace equality in the private sector. The final rule will take effect 120 days from the date of its publication in the Federal Register, which is on or about the first week of March 2015.

The final rule applies to federal contractors holding contracts entered into or modified on or after the date the rule takes effect. In addition to updating the existing rules to include gender identity and sexual orientation, the final rule also updates the Equal Opportunity Clause included in federal contracts. That clause now states that the contractor considers all applicants for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or age. Federal contractors and subcontractors must also include similar statements in their job solicitations and required notices posted conspicuously at work sites.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=361034

SBA: Women 8(a) applicants don’t need “smoking gun” bias evidence

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A woman does not need to provide the SBA with “smoking gun” evidence of bias in order to be considered socially disadvantaged for purposes of her company’s application to the 8(a) program.

In a recent decision, the SBA Office of Hearings and Appeals (OHA) sharply criticized the SBA’s evaluation of a woman-owned small business’s 8(a) application, holding that the SBA had improperly discounted evidence of bias, needlessly demanded that the woman provide irrelevant details, and made several other errors.

SBA OHA’s decision in Matter of Bartkowski Life Safety Corp., SBA No. BDPE-516 (2014) involved Bartkowski Life Safety Corporation’s 8(a) application.  Bartkowski initially applied to the program in January 2012.  Bartkowski asserted that its owner, Lauren Sustek, was socially disadvantaged on the basis of gender.

Keep reading this article at: http://smallgovcon.com/8a-program/women-8a-applicants-dont-need-smoking-gun-evidence-of-bias-says-sba-oha/

No accountability? 21% of federal agencies don’t submit EEO reports

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Every year, the Equal Employment Opportunity Commission releases its annual report, informing the president and Congress of the state of equal-employment opportunity in the federal workforce. But critics say the annual report serves one other purpose: It magnifies what is currently wrong with the federal government’s EEO system.

The recently released 2009 report reveals a stunning lack of compliance, commitment and accountability by a number of agencies and agency leadership—especially when compared with the best practices being employed by The DiversityInc Top 50 Companies for Diversity®.

Consider this sampling of numbers from EEOC’s latest 2009 report:

  • Only 79 percent of federal departments and agencies submitted Management Directive 715 (MD-715) reports. The reports detail agency employment by race, national origin, sex and disability and are required under law to be submitted, reviewed and approved annually by the EEOC, which is responsible for enforcing federal laws against employment discrimination.
  • Only 61 percent of federal departments and agencies heads issued written policy statements, expressing their commitment to EEO and a workplace free of discriminatory harassment, despite an EEOC mandate that this statement “be issued at the beginning of their tenure [and] disseminated to all employees.”
  • Only 74 percent of agency EEO directors report directly to their agency head, despite a mandate that they do so.

So what happens to the 21 percent of agencies that do not submit MD-715 reports? Or the 39 percent of agency heads who did not issue written policy statements? Or the 26 percent of agencies that don’t have an EEO director reporting directly to the top person at a department?

“There is absolutely no accountability for those agencies who do not wish to comply with the regulations,” says Carol Dawson, president of EEO Guidance, a national consulting and training company based in Jeffersonville, Ind. “There is nobody doing anything about the percent that is not in compliance; there are no consequences whatsoever.”

In March, DiversityInc released the findings of its second annual DiversityInc Top Federal Agencies for Diversity list in Washington, D.C. The findings demonstrated that while participating federal agencies have made strides in ensuring that their workforces reflect the changing needs and faces of their constituents, they lagged far behind the DiversityInc Top 50 in a number of key areas of diversity management and representation, including:

  • Strategies used to promote and show commitment for diversity throughout the organization
  • Workforce and recruitment representation for Blacks, Latinos, Asians, women and people with disabilities
  • Communications about employee-development programs, such as employees and managers participating in employee-resource groups and in mentoring programs

DiversityInc will follow up with federal agencies on Nov. 9 with a program entitled “The Next Steps to Effective Diversity Management.” Expected speakers include John Robinson, chief diversity officer of the State Department, Cari Dominguez, former head of the EEOC, and chief diversity officers of several DiversityInc Top 50 companies. For information on this diversity event, click here.

Dawson worked at the Office of Federal Contract Compliance for 25 years, the agency responsible for ensuring that private-sector employers doing business with the federal government—specifically, all federal contractors that employ 50 or more employees and have government contracts of $50,000 or more—comply with the EEO laws and regulations requiring nondiscrimination.

She said the federal government does not tolerate the same kind of behavior within the private sector that it allows in its own ranks. “In private industry, we take them to court. We take their federal contracts away. We put their names out there. We make them miserable. They will suffer greatly if they are not in compliance with far stricter EEO laws,” Dawson says.

But while EEOC is charged with monitoring federal-agency compliance with EEO laws, it does not have the funds or the manpower to monitor what is arguably the largest employer in the United States—the federal government, she said.

Dawson likens the current system to a fox-watching-the-hen-house scenario. Unlike the private sector, federal agencies themselves are responsible for their own internal EEO compliance and for processing and investigating charges of discrimination filed against them by their own employees.

“Until the federal government removes internal compliance and enforcement from the agencies and places it in neutral hands [EEOC], nothing will change,” Dawson says. “The federal agencies must be held accountable, or there is no real need for the EEO regulations.”

Dexter Brooks, the director of federal-sector programs at the EEOC, acknowledges that lack of compliance with EEO guidance and mandates is a problem at a number of federal agencies and departments. “What is our enforcement mechanism? We issue this report to the president and Congress every year stating which agencies are in compliance because they actually control the agencies’ budgets and the way in which they are lead. So that is one way in which we try to seek compliance,” he says.  “Actually, it’s the primary way right now because we don’t have sanctioning authority.”

Brooks says the only time the EEOC can issue binding orders to an agency or department is when a deficiency manifests itself into an actual employee complaint.

He says the EEOC has issued a notice of proposed rulemaking to “slightly strengthen” the way the EEOC enforces its mandates. “This is not something we take lightly,” he says.  “We are trying to get a full understanding of how far we can go to achieve compliance in federal agencies.”

Brooks says when the EEOC finds an agency or department failing to comply with a particular mandate or directive, “we note it as a deficiency and we give feedback to the EEO program and the agency head noting what we find as deficiencies.”

In its annual report, the EEOC also submits “tips” on how to have a more effective EEO program in the federal government. Brooks says another compliance mechanism is the actual complaint process, which he says is more reactive. “Employees who believe they have not received equal opportunities can file complaints of discrimination,” he adds. “We are trying to get agencies to do the proactive work before they see us on the reactive side, which is the complaint side.”

In fact, federal employees are filing more complaints alleging employment discrimination on the basis of race, color, sex, national origin, religion, age, disability and reprisal. Federal employees filed 16,947 discrimination complaints in fiscal year 2009, 195 more than in 2008, according to a new EEOC report. The increase is smaller than the previous year’s increase: In 2008, there were 584 more discrimination complaints than in 2007.

The rise in 2009 over the previous year is not big, but it is significant because it represents the second year of an increase, reversing what has been a decade of steady declines. “We are watching this trend,” Brooks says.

Asked whether the rise in complaints could be related to the number of agencies and departments that are not complying with EEO guidance mandates, Brooks says he is not sure but “logically, it needs to be explored.”

“It makes sense that if you are not in compliance, you might have higher complaints,” he says. “That makes a lot of sense and it’s something we are going to be studying and tracking.”

See also:

Key Findings From the EEOC Report

— By Sam Ali – Aug 27, 2010 – Diversity Inc. – http://diversityinc.com/article/8013/No-Accountability-21-of-Federal-Agencies-Dont-Submit-EEO-Reports/

Construction contractors can expect affirmative action enforcement effort

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The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), the Federal agency responsible for enforcing affirmative action mandates against Federal contractors and subcontractors, recently reported on its enforcement efforts for fiscal year 2009. OFCCP collected $9.31 million in back pay from 94 federal contractors through settlements of discrimination claims last year. It completed close to 4,000 compliance evaluations, resulting in conciliation agreements with nearly 700 employers. OFCCP issued this data in connection with its budget request for 2011, which anticipates continued growth and aggressive enforcement efforts. Federal contractors can anticipate that OFCCP’s enforcements efforts will likely increase this year. The Agency’s budget for fiscal year 2010 was increased significantly by the Obama administration in order to increase the number of compliance officers and to meet the agency’s goal of conducting more on-site compliance reviews.

As reported by BNA’s Daily Labor Report, in 2010, the agency also intends to change its focus by increasing its affirmative action compliance efforts and more closely scrutinizing Federal contractors’ affirmative action plans. Construction industry employers are among those who are likely to be targeted in the coming year.

OFCCP has also announced a renewed emphasis on affirmative action efforts for veterans and disabled workers, which includes plans to amend and strengthen regulations under the Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act. In light of OFCCP’s expressed intent to make affirmative action its enforcement priority, federal contractors should ensure that their Affirmative Action Plans, and related data on employment actions, are in place, up to date, and in full compliance with regulatory requirements.

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