OFCCP Codifies Rules for Resolving Discrimination Claims

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The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published a final rule codifying its procedures on resolving employment discrimination claims.

The final rule will "increase clarity and transparency for federal contractors, establish clear parameters for OFCCP resolution procedures, and enhance the efficient enforcement of equal employment opportunity laws," according to the rule, which the department posted on Nov. 5. "The rule will help OFCCP to increase the number of contractors that the agency evaluates and focus on resolving stronger cases through the strategic allocation of limited agency resources."

We've rounded up articles and resources from SHRM Online and other trusted media outlets on the news.

Providing Transparency

The final rule formally codifies the use of notices that the OFCCP issues when the agency is resolving potential discrimination findings: the Predetermination Notice (PDN) and the Notice of Violation. By issuing PDNs, the OFCCP provides transparency to contractors and also facilitates early resolution of alleged violations, according to management attorneys. The rule finalizes a  proposal that was published in December 2019.

(The National Law Review)

Establishing Evidentiary Standards

The rule "differentiates the procedures followed for disparate treatment and disparate impact theories of discrimination, which have separate, although similar, elements, and provides clarity on the evidentiary standards OFCCP will have to meet to issue pre-enforcement notices under each legal theory," according to the agency. With some exceptions, the rule requires the OFCCP to provide qualitative evidence to support a finding of intentional discrimination. For disparate impact claims, the rule requires the OFCCP "to identify the policy or practice of the contractor causing the adverse impact with factual support demonstrating why such policy or practice has a discriminatory effect." The rule also codifies the agency's "early resolution conciliation option," which allows contractors to proceed with a settlement agreement in the earlier stages of the process.

(Bloomberg Law)

Enforcing Anti-Discrimination Laws

The OFCCP enforces laws that make it illegal for federal contractors and subcontractors to make employment decisions that discriminate against workers based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability and status as a protected veteran. Contractors and subcontractors also are prohibited from discriminating against job applicants and employees for discussing their compensation and retaliating against workers for engaging in protected activities. Federal contractors must also provide equal employment opportunities through affirmative action.

(U.S. Department of Labor)

Seeking Comments on Affirmative Action Proposal

The OFCCP recently proposed that federal contractors annually certify to the agency their obligation to update affirmative action programs each year. Instead of verifying that they comply with their nondiscrimination and affirmative action obligations in the System for Award Management database, which is run by the General Services Administration, federal contractors would verify compliance with the OFCCP. Comments on the proposal are due Nov. 13.

(SHRM Online)

Promoting Compliance Assistance Programs and Tools 

Through outreach efforts, the OFCCP heard that federal contractors wanted to bring back certain award programs that were designed to encourage employers to work in good faith to comply with employment laws. The agency started with the Excellence in Disability Inclusion Award, which is awarded to employers that excel in meeting their obligation to "recruit, hire, retain and advance qualified people with disabilities" under Section 503 of the Rehabilitation Act. "It's very important that companies are reaching out and seeking to include people with disabilities in all aspects of their employment processes," said OFCCP Director Craig Leen. "It's good for business. It's good for those with disabilities. It's good for the entire workforce."

(SHRM Online)

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