Is the Office of Federal Contract Compliance Programs (OFCCP) taking its hiring and compensation compliance activities in a new direction? Yes, according to Kathleen J. Raynsford, an attorney with Fortney Scott, LLC.
BLR: What can federal government contractors expect from the OFCCP should they be audited for affirmative action compliance this year?
Raynsford: As many contractors have discovered recently, OFCCP has stepped up its audit and enforcement efforts this year, issuing 5,000 audit notices in early March, 2008. Contractors targeted for audit should be prepared to face an apparently new approach from the agency on analyzing alleged systemic discrimination, particularly in hiring and compensation.
OFCCP's Deputy Director David Frank recently identified compensation discrimination as one of the agency's top priorities for investigation and enforcement this year. OFCCP's new Director of Statistical Analysis, Dr. Javaid Kaiser, is gearing up for more aggressive and consistent enforcement of OFCCP's relatively new compensation standards and guidelines for contractors' self-evaluation (issued in June, 2006).
In a departure from "traditional" analysis, OFCCP appears to be taking adverse impact analyses in a new direction, comparing minority groups to each other, not just to nonminorities. This includes an apparent willingness to pursue reverse discrimination claims, collecting data and documents and even coming onsite where whites and/or men are paid less, hired or promoted less frequently, or terminated more often than their female/minority counterparts.
OFCCP insists that there has been no change in policy, emphasizing that both Title VII and the Executive Order 11246 have always prohibited discrimination against any race or sex (including whites and men). Yet, attorneys and other experts representing employers insist that change is in the wind. When asked for comment, an agency representative conceded that some recent cases have gone forward based on statistically significant adverse impact against African Americans as compared to Hispanics. Such allegations have not been a part of OFCCP compliance reviews in recent memory.
Accordingly, contractors should be reviewing compensation data and personnel activity (hiring, promotions, terminations) for statistically significant adverse impact on any group as compared to another (e.g., favoring women over men, Asians over African Americans) in addition to the "traditional" minority versus nonminority analysis and results favoring men over women.
Contact Kathleen J. Raynsford, Esq., Fortney Scott, LLC at 202-689-1200 or kraynsford@fortneyscott.com.
