New Initiatives Affect OFCCP
During the last few weeks, there have been multiple new initiatives that affect OFCCP. These initiatives may not have much impact on federal contractors and subcontractors in the short term. However, they demonstrate the current priorities of the Trump administration and OFCCP, and show where OFCCP may be moving in the long term.
Memorandum of Understanding Between OFCCP, EEOC, and DOJ
On November 3, 2020, OFCCP, EEOC, and the Department of Justice released a joint Memorandum of Understanding (MOU) concerning enforcement activities. This MOU is an update of a previous MOU between OFCCP and EEOC. The MOU describes how OFCCP and EEOC will handle discrimination complaints filed that may affect both agencies.
Among the key changes to the MOU are the following:
- The Department of Justice is now a party to the MOU, and will have the right to intervene when there are issues that are “novel, unsettled, or may have significant precedential value for subsequent cases.”
- OFCCP has the option to investigate claims of discrimination by an individual rather than routinely referring such cases to EEOC.
OFCCP’s ability to conduct compliance reviews might be significantly impacted by the revisions to the MOU if the agency decides to investigate most individual claims of discrimination. Any new head of OFCCP will need to determine how to deploy the agency’s resources.
Final Rule Regarding Procedures To Resolve Potential Employment Discrimination
On November 10, OFCCP formally published a final rule regarding the resolution of potential employment discrimination investigations brought by the agency. This final rule codified practices and procedures that have been in place at OFCCP for the last few years. The regulatory language in the final rule affects investigations under all three of the laws enforced by OFCCP.
Among the key points in the final rule are the following:
- The final rule generally calls for both qualitative and quantitative evidence before OFCCP issues a Predetermined Notice (PDN) to an organization where the agency has identified potential disparate treatment discrimination.
- The final rule call for quantitative evidence and identification of a specific policy or practice before OFCCP issues a PDN where the agency has identified potential disparate impact discrimination.
- In both disparate treatment and disparate impact cases, OFCCP must show that it has quantitative evidence of practical significance before issuing a PDN.
- OFCCP must disclose the qualitative and quantitative evidence it has gathered to the organization under review if it follows the PDN with a Notice of Violation.
The various technical terms noted above such as quantitative evidence and practical significance are defined in the final rule. The most controversial part of this final rule may involve the concept of practical significance, which is potentially a lower standard than that of statistical significance. See our previous blog post for more on these measures of quantitative evidence.
Technical Assistance Guide for Supply and Service Contractors
On November 13, 2020, OFCCP released a new Technical Assistance Guide (TAG) for supply and service contractors. This guide applies to federal contractors and subcontractors that are not involved in construction projects. The TAG is a major effort by OFCCP to provide guidance to supply and service organizations on how to implement the federal affirmative action laws. Among the sections in the guide are the following:
- An overview of OFCCP’s responsibilities
- Information on mandatory notices and recordkeeping
- Required elements in affirmative action plans
- Information on preparing for a compliance review
- Checklists and samples
The TAG provides insights into OFCCP’s priorities during a compliance review and specific areas where organizations should focus their affirmative action efforts. We will be highlighting certain sections of the TAG in future posts on our news page.