Government Contractor Compliance & Regulatory Update

OFCCP New Rule On Procedures for Resolving Alleged Findings of Discrimination Goes Into Effect December 10, 2020

By Guy Brenner and Caroline Guensberg on Posted in OFCCP

Quick Hit:  OFCCP has published its final rule codifying the process by which it determines and notifies contractors of findings of discrimination.  The rule, which goes into effect on December 10, 2020, adds significant detail regarding the evidence on which OFCCP must base such findings and what must be communicated to contractors when OFCCP seeks to pursue such findings.

Key Takeaways:  The new rule is a welcome development for contractors, imposing significant new requirements before OFCCP can issue findings of discrimination.

First, any new findings must be reviewed by the Director or acting agency head to ensure they contain sufficient quantitative evidence that is practically significant, as well as qualitative evidence supporting the findings of discrimination.  The involvement of the national office in this process will hopefully create some consistency in the manner in which the agency determines and pursues discrimination findings.  Further, the detailed evidentiary predicate necessary for such findings will hopefully prevent compliance officers from pursuing discrimination findings grounded in inadequate evidentiary support.

Second, the agency cannot pursue the discrimination findings without first issuing the contractor a Predetermination Notice (“PDN”) which provides notice of this evidence in sufficient detail to permit a meaningful response.  PDNs cannot be issued without approval of the Director or the acting agency head.  Codification of the PDN process, previously introduced in an agency directive, provides the contractor with meaningful notice of a potential finding of discrimination, the bases for that potential finding, and the opportunity to respond before the issuance of a Notice of Violation (“NOV”).  Notably, upon request, OFCCP must provide the contractor with the model and variables used in any statistical analysis and an explanation for the exclusion from the analysis of any variables proposed by the contractor.  In the past, the agency would often issue NOVs without prior notice to the contractor.  In our experience, NOVs would often be driven by errors and misunderstandings, but OFCCP would rarely if ever admit a mistake – often creating an odd circumstance where OFCCP would not change its position that the contractor discriminated, but was willing to enter into a conciliation agreement which would negate that finding either through silence or practically via a negligible backpay remedy.  Now, contactors have the ability to demonstrate to OFCCP its preliminary finding is erroneous before the issuance of an NOV.

Third, OFCCP may not issue an NOV until after the 30-day period provided for the contractor to respond to the PDN.  Moreover, the NOV must provide the same evidentiary detail provided in the PDN as well as address any of the issues raised by the contractor in its response to the PDN.

While this process should avoid some of the error-ridden NOVs issued in the past, it is possible that results-oriented compliance officers will use the contractor’s PDN response to develop alternative bases for reaching the same (erroneous) result.

Contractors should become familiar with these new requirements and ensure OFCCP complies with them in any compliance evaluation.  The rule is a positive step towards establishing a more transparent, efficient and fair process that, if implemented in good faith, should help contractors avoid having to fight with OFCCP over erroneous NOVs.  Time will tell.

More Detail:

OFCCP has stated its new rule is meant to “increase clarity and transparency for Federal contractors, establish clear parameters for OFCCP resolution procedures, and enhance the efficient enforcement of equal employment opportunity laws.”  This is accomplished through detailed rules for issuing PDNs and NOVs.

PDN Process and Requirements:

The rule codifies the use of PDNs “if a compliance review . . . indicates evidence sufficient to support a preliminary finding of disparate treatment and/or disparate impact discrimination” and sets forth the required contents of PDNs.  In other words, discrimination findings may not be pursued unless and until OFCCP engages in a process with contractors, which begins with the issuance of a PDN.  Notably, OFCCP may not issue a PDN without approval of the Director or acting agency head, which should provide some manner of consistency and quality checking for PDNs.

In implicit recognition of the fact the agency’s discrimination findings have not always appreciated the difference between disparate impact and disparate treatment theories of discrimination and the evidentiary burdens associated with each, the rule instructs that PDNs must indicate which theory the preliminary discrimination finding is based upon and identify certain evidentiary support for the preliminary finding depending on the theory pursued.

  • For disparate treatment-based findings, the PDN must include:

(i) “quantitative evidence” (discussed below)

(ii) demonstrate that the unexplained disparity is “practically significant,” and

(iii) provide “qualitative evidence” (discussed below) that when combined with quantitative evidence, “supports both a finding of discriminatory intent by the contractor and a finding that the contractor’s discriminatory intent caused the disparate impact.”

  • For disparate impact-based findings, the PDN must include the three components required for disparate treatment-based findings, unless the qualitative evidence alone is “sufficient to support a preliminary finding of disparate treatment,” the evidence of disparity “is so extraordinarily compelling that by itself it is sufficient to support a preliminary finding of disparate treatment,” or the quantitative evidence of a disparity is practically significant but the contractor has denied OFCCP access to sources of evidence “that may be relevant to a preliminary finding of discriminatory intent.” Further, the PDN must identify “the specific policy or practice of the contractor causing the adverse impact, unless OFCCP can demonstrate that the elements of the contractor’s selection procedures are incapable of separation for analysis.”

“Quantitative evidence” is defined by the rule as including “hypothesis testing, controlling for the major, measurable parameters, and variables used by the contractor . . . related to the probability of outcomes occurring by chance and/or analyses reflecting statements concluding that a disparity in employment selection rates or rates of compensation is statistically significant.”  Statistically significance is met by (i) a “standard deviation of two or more,” (ii) a “Z statistic [with] a value greater than two,” or (iii) a “probability value [of] less than 0.05.”  Quantitative evidence is not limited to statistical analyses, but applies to cohort or other analyses of small groups of individuals.  The rule defines “qualitative evidence” as including (but not being limited to) “testimony, interview statements, and documents about” discriminatory beliefs, intent, statements or acts, employment practices, compliance with legal obligations, and other relevant matters.  The rule makes clear that qualitative evidence supporting a PDN “may not be based solely on subjective inferences or the mere fact of supervisory discretion in employment decisions.”

The PDN must disclose the quantitative and qualitative evidence “in sufficient detail to allow contractors to investigate allegations and meaningfully respond.”  In addition, upon request, the agency must provide “the model and variables used in any statistical analysis and an explanation for why any variable proposed by the contractor was excluded from that analysis.”  Although OFCCP has been increasingly transparent in recent years with regard to its modeling, as reflected in its 2018 transparency directive, the requirement that it not only disclose its methodology, but also explain why it did not employ the contractor’s is a significant development.  To be candid, based on past experience, OFCCP’s explanations in this regard are not always satisfying, but at least under the new regulation the agency will be forced to acknowledge and address contrary viewpoints at the pre-NOV stage.

Contractors will have 30 days to provide a response to the PDN.

NOV Process and Requirements

If OFCCP, after reviewing any response to its PDN, believes it “has evidence sufficient to support a finding of disparate treatment and/or disparate impact discrimination,” as required by the rule, or otherwise violated its obligations, the agency may issue an NOV requiring corrective action and inviting the contractor to conciliate the matter.  Like the PDN, the NOV must disclose the qualitative and quantitative evidence upon which it is based, as well as its statistical models.  In addition, the NOV must address “all relevant concerns and defenses raised by the contractor in response to the [PDN].”

Department of Labor Issues Final Rule “Clarifying” The Religious Entity Exemption

By Guy Brenner and Abigail Rosenblum on Posted in Department of Labor

Quick Hit:

On December 7, 2020, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued its final rule enhancing the religious exemption for federal government contractors already contained in its regulations (the “Rule”).  The Rule, through the addition of definitions, adds detail to and arguably expands the already existing exemption on religious entities’ compliance with the anti-discrimination provisions of Executive Order 11246.  The Rule becomes effective January 8, 2021.

Key Takeaways:

As a practical matter, the Rule will have minimal impact on the contractor community.  Most government contractors do not fall within the scope of the entities covered by the exemption, even as clarified by the Rule.  Further, religious discrimination is not typically a focal point of OFCCP compliance evaluations.  However, with the agency’s new accommodation focused reviews, which will include an assessment of religious accommodations, the Rule may have more practical import for those entities covered by the enhanced exemption.  Furthermore, to the extent religious entities were discouraged from entering into federal government contracts due to fear of OFCCP review of their employment practices containing religious components, the new Rule will likely reduce any such concerns.

Even for those contractors that fall within the exemption, OFCCP makes clear that the exemption does not relieve them of all or even most of OFCCP’s requirements.  As the agency notes, “[e]ven for religious organizations that serve as government contractors or subcontractors, they too must comply with all of E.O. 11246’s nondiscrimination requirements except in some narrow respects under some reasonable circumstances recognized by law.”

More Detail:

On August 15, 2019, OFCCP issued a notice of proposed rulemaking regarding the scope of the religious exemption already contained in its regulations.  OFCCP’s regulations exempted any federal contractor that was a “religious corporation, association, educational institution, or society” from complying with the anti-discrimination provisions of the Order “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  However, many of the terms contained in the exemption were previously undefined.  By adding definitions, OFCCP contends the new Rule clarifies the religious exemption and “ensure[s] that OFCCP respects religious employers’ free exercise rights, protects workers from prohibited discrimination, and defends the values of a pluralistic society.”

Specifically, the Rule adds a definition of “religion” that includes not only religious beliefs, but also “all aspects of religious observance and practice.”  In addition to the term “religion,” the Rule provides new definitions for the terms “particular religion;” “religious corporation, association, educational institution, or society;” and “sincere,” as follows:

Particular religion is defined by the Rule as “the religion of a particular individual, corporation, association, educational institution, society, school, college, university, or institution of learning, including acceptance of or adherence to sincere religious tenets as understood by the employer as a condition of employment, whether or not the particular religion of an individual employee or applicant is the same as the particular religion of his or her employer or prospective employer.”

Religious corporation, association, educational institution, or society is defined by the Rule as “a corporation, association, educational institution, society, school, college, university, or institution of learning that:

(i) Is organized for a religious purpose;

(ii) Holds itself out to the public as carrying out a religious purpose;

(iii) Engages in activity consistent with, and in furtherance of, that religious purpose; and

(iv) (A) Operates on a not-for-profit basis; or (B) Presents other strong evidence that its purpose is substantially religious.”

The Rule also provides a list of illustrative examples of entities that meet and do not meet this definition.

Sincere is defined by the Rule as “sincere under the law applied by the courts of the United States when ascertaining the sincerity of a party’s religious exercise or belief.”

The Rule is intended to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the U.S. Constitution and law, including the Religious Freedom Restoration Act of 1993, as amended, 42 U.S.C. 2000bb et seq.”  It is scheduled to become effective on January 8, 2021.

We will continue to monitor and keep our readers updated on any noteworthy developments.

LGBT Advocacy Groups File Lawsuit Challenging President Trump’s Executive Order on Diversity Trainings

By Abigail Rosenblum and Guy Brenner on Posted in Discrimination

Quick Hit:

On November 2, 2020, LGBT advocacy groups filed the second challenge to President Trump’s recent Executive Order on “Combatting Race and Sex Stereotyping” (the “Order”).  Like the first lawsuit, this lawsuit alleges that the Order violates the First and Fifth Amendments by infringing on the Constitution’s guarantees of Free Speech and Due Process.  Additionally, this Complaint alleges that the Order is unconstitutionally vague.

More Detail:

As we previously reported, the first challenge to the Order was filed by the NACCP Legal Defense Fund on behalf of the National Urban League (“NUL”) and the National Fair Housing Alliance (“NFHA”) in the Unites States District Court for the District of Columbia.  This second lawsuit was filed in the United States District Court for the Northern District of California by Lambda Legal on behalf of various LGBT groups.  Named defendants in the lawsuit include President Trump; Secretary of Labor, Eugene Scalia; the United States Department of Labor (“DOL”), the Director of Federal Contract Compliance Programs (“OFCCP”); the Office of Management and Budget (“OMB”); the U.S. Department of Justice (“DOJ”); and Attorney General William Barr, among others.

According to the Complaint, the Order “plainly discriminates against speech on the basis of . . . content and viewpoint . . . and constitutes a clear violation of the First Amendment.”  It requires organizations and individuals relying on federal funding to “choose between funding that is critical to their clients, and the trainings that are necessary to enable [these organizations] to serve [their] clients directly.”  This has the effect of “chilling” speech, which in the case of these organizations in particular, could have a more dire impact—the Plaintiffs note that without proper training on the history of marginalized communities and the role that “implicit bias” can play, their work cannot succeed.

Plaintiffs seek a declaratory judgement that the Order and its implementing agency action are unlawful and unconstitutional, and preliminary and permanent injunctions enjoining implementation and enforcement of the Order.

We anticipate that other lawsuits against the Order will be filed, and we will monitor and report on any newsworthy developments.

Civil Rights Groups File Challenge to President Trump’s Executive Order on Diversity Trainings

By Abigail Rosenblum and Guy Brenner on Posted in Discrimination

Quick Hit:

On October 29, 2020, civil rights groups filed a lawsuit challenging President Trump’s recent Executive Order on “Combatting Race and Sex Stereotyping” (the “Order”).  The Complaint alleges that the Order violates the First and Fifth Amendments by infringing on the Constitution’s guarantees of Free Speech, Equal Protection, and Due Process.  The Complaint also alleges that the Order is unconstitutionally vague and should be declared unlawful and invalid.

More Detail:

The Order, issued on September 22, requires new contracts entered into with the federal government to include a clause prohibiting federal contractors from including certain concepts in diversity and awareness trainings – including certain concepts that are common in unconscious bias and societal privilege trainings.  The lawsuit was filed by the NACCP Legal Defense Fund on behalf of the National Urban League (“NUL”) and the National Fair Housing Alliance (“NFHA”), and names President Trump; Secretary of Labor, Eugene Scalia; and the United States Department of Labor (“DOL”), as defendants.  The Complaint was filed on behalf of both the named parties and on behalf of other entities affected by the Order.

According to the Complaint, the Order is an attack on free speech and “prohibits laudable and necessary efforts by Plaintiffs who want to counteract the effects of systemic discrimination and biases in the workplace.”  Ultimately, the Complaint argues, the Order “unconstitutionally forces Plaintiffs to choose between censoring speech on these important issues or forfeiting any opportunity to enter into a federal contract for the provision of goods or services or to receive federal funds as a grant recipient.”

Further, the Plaintiffs allege that the terms of the Order are unclear and often left undefined.  This brings unpredictability and uncertainty, as there “is no objective way to determine which activities are permitted and which are prohibited.”  This also invites the possibility of “selective enforcement.”  Plaintiffs claim the Order is an attempt to “censor and chill” discussions surrounding equality and inclusion—speech that is “at the core of the First Amendment’s protections.”

Plaintiffs, among other relief, seek a declaration that the Order is unlawful and invalid and a permanent injunction enjoining its enforcement.

We will continue to monitor developments with this lawsuit and advise our readers of further developments.

OFCCP Obtained $35.6 Million From Contractors in FY2020

By Caroline Guensberg and Guy Brenner on Posted in OFCCP

During an October 21, 2020 “stakeholder” call, Director Leen took the opportunity to laud the agency’s accomplishments over the past four years, including record financial recoveries.  Director Leen noted that the agency’s total recoveries over the past four years exceeded the prior nine years combined.

As we previously reported, in FY2019, OFCCP set a new record for financial recoveries:  over $40 million.  The trend of high recoveries continued during fiscal year 2020; OFCCP reports that it had its second-highest financial recovery on record in FY2020, obtaining $35.6 million from contractors.

OFCCP Provides Additional Guidance On “Combatting Race and Sex Stereotyping” Executive Order

By Guy Brenner and Caroline Guensberg on Posted in Discrimination, OFCCP

On October 21, 2020 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) held a stakeholder call regarding the agency’s implementation of Executive Order 13950, “Combatting Race and Sex Stereotyping” (the “Order”) which, as we have previously reported, restricts the concepts which contractors may include in anti-discrimination and diversity trainings provided to their employees.  Additional posts discussing the order and related developments are available here, here and here.

Proskauer attended the call, during which OFCCP Director Craig Leen answered questions related to the agency’s release of the Request for Information required by the Order and the roll out of a landing page devoted to the Order.

OFCCP’s Request for Information

On October 21, 2020 OFCCP announced the publication of a Request for Information (“RFI”), consistent with the Order’s directive that the agency do so within 30 days.  In the RFI, OFCCP requests that contractors and other stakeholders provide “comments, information, and materials . . . concerning workplace trainings involving prohibited race or sex stereotyping or scapegoating.”  On the stakeholder call, Director Leen made clear contractors are not required to provide the information, but rather the request is voluntary.

The RFI invites contractors to “provide various other types of materials, such as PowerPoints, photographs, videos, handwritten notes, or printed handouts.”  Responses to this RFI are due by December 1, 2020.

The RFI specifies categories of information it seeks, noting contractors “do not need to provide a response for every category number”:

  1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
  2. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating.
  3. The duration of any workplace training identified in categories 1 or 2.
  4. The frequency of any workplace training identified in categories 1 or 2.
  5. The expense or costs associated with any workplace training identified in categories 1 or 2.

OFCCP additionally requests input on any or all of the following questions, if applicable:

  1. Have there been complaints concerning this workplace training? Have you or other employees been disciplined for complaining or otherwise questioning this workplace training?
  2. Who develops your company’s diversity training? Is it developed by individuals from your company, or an outside company?
  3. Is diversity training mandatory at your company? If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
  4. Approximately what portion of your company’s annual mandatory training relates to diversity?
  5. Approximately what portion of your company’s annual optional training relates to diversity?

Contractors may submit materials in response to the RFI anonymously, however, the RFI notes “any materials submitted in response to [the RFI] may be subject to public disclosure.”

During the October 21, 2020 stakeholder call, Director Leen explained that the RFI in intended for information collection rather than enforcement purposes.  Director Leen indicated that responses to the RFI will be treated the same way as contractors’ requests for compliance assistance, meaning the agency will not bring enforcement actions solely based on submissions.  That being said, if, in response to a contractor’s submission, OFCCP provides advice for compliance with the Order and the contractor decides not to implement the agency’s advice, OFCCP could potentially take enforcement action on that basis.  For further information on this point, Director Leen directed stakeholders to pages 8-9 of the RFI, which provides in relevant part:

OFCCP will, consistent with law, exercise its enforcement discretion and not take enforcement action against Federal contractors and subcontractors that voluntarily submit information or materials in response to this request for information, as it relates to submitted information or materials and potential non-compliance with Executive Orders 13950 or 11246, provided that such contractor or subcontractor promptly comes into compliance with the Executive Orders as directed by OFCCP.

Given that responses could potentially lead to enforcement action, it is an open question why any contractor would respond to the RFI.

Executive Order 13950 Landing Page

During the October 21, 2020 stakeholder call, Director Leen also highlighted OFCCP’s launch of a landing page devoted to the Order.  This landing page contains links to:

  • Frequently Asked Questions (“FAQs”) the agency previously published regarding the Order (for more information on the FAQs, see our previous blog post).
  • OFCCP’s RFI; and
  • OFCCP’s Complaint Hotline to Combat Race and Sex Stereotyping (for more information on the Hotline, see our previous blog post and podcast).

[Podcast]: OFCCP Opens Hotline for Complaints of Race and Sex Stereotyping in Workplace Training

By Guy Brenner and Harris Mufson on Posted in Discrimination, Employment Law

the proskauer brief logo imageIn the latest episode of The Proskauer Brief podcast, partners Harris Mufson and Guy Brenner discuss the Trump administration’s recent Executive Order on Combating Race and Sex Stereotyping, which restricts the concepts that government contractors can include in their employee diversity and awareness training programs.  It also imposes certain penalties and sanctions, including debarment for failure to comply. Tune in as we discuss key considerations for government contractors in the wake of the order.

play podcast


Listen to the podcast.

 

View the transcript on our Law and the Workplace blog.

Tags: podcast, race stereotyping, sex stereotyping

OFCCP Releases Guidance on Executive Order Limiting Contractors’ Anti-Discrimination Trainings

By Guy Brenner and Abigail Rosenblum on Posted in Discrimination, OFCCP

Quick Hit:

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has issued guidance on President Trump’s September 22, 2020 “Executive Order on Combatting Race and Sex Stereotyping” (the “Order”) which restricts the concepts which contractors may include in anti-discrimination and diversity trainings provided to their employees.  Though much of the publication summarizes key provisions of the Order, two key components provide important guidance:  (1) although the Order’s prohibitions will only apply directly to contractors with contracts executed after November 21, 2020, OFCCP warns including the prohibited concepts in trainings may also violate the non-discrimination obligations found in Executive Order 11246 which apply to all federal contractors; and (2) OFCCP does not view the Order as barring all forms of unconscious bias or implicit bias trainings.

Key Takeaways:

Whether or not federal contractors are parties to contracts entered into after November 21, 2020, all contractors need to be aware of the restrictions contained in the Order, particularly given the hotline OFCCP established last week to receive complaints about trainings that violate the Order.  Contractors should also review the Order carefully to understand its precise parameters as they assess whether to enter into new contracts with the federal government.  Contractors may determine that they can continue their existing training programs and comply with the letter of the Order.  For example, as OFCCP has recognized, contractors can continue to provide their unconscious bias and similar trainings, provided they do not teach that a particular race or sex is “inherently racist, sexist, or oppressive.”

Contractors should also be aware that the Order, and OFCCP’s actions in response to it, reflect a growing focus on race discrimination of any kind, as opposed to only discrimination against traditionally disadvantaged groups.  Contractors must be aware that some efforts at increasing diversity and inclusion can be viewed as discrimination against white employees and that while OFCCP may not have been as focused on such issues in the past it clearly is now.  Indeed, recent press reports indicate OFCCP has initiated investigations of government contractors in response to their announced efforts to increase minority representation in their employee ranks.

More Detail:

As we previously reported, the Order, among other things, requires new federal government contracts to include a clause prohibiting federal contractors from including certain concepts in diversity and awareness trainings – including certain concepts that may appear in unconscious bias and societal privilege trainings.

OFCCP’s recent publication provides further guidance on how the Order will work in practice.  First, OFCCP notes that contractors who implement training programs that include race or sex stereotyping or scapegoating may not only be violating the Order, but also could violate Executive Order 11246 which prohibits discrimination  “against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.”  The recent guidance indicates that trainings related to race or sex stereotyping may not “ensure . . . that employees are treated, during employment, without regard to race [or sex],” even though these sorts of trainings are often designed to accomplish exactly that.  As such, contractors who do not enter into new contracts with the Order’s prohibitions may still find themselves subject to OFCCP investigation if they offer trainings that violate the Order’s restrictions.

Second, the guidance notes that although many types of unconscious bias trainings are prohibited (including training based on the notion that individuals, by virtue of their protected characteristics are “racist, sexist, oppressive, or biased, whether consciously or unconsciously”), the training is permitted “if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”  This matches the text of the Order which bars implicit bias training that teaches that members of a certain race or sex are “inherently” racist, sexist or oppressive.

As always, we will continue to advise our readers of further developments related to the Order.

OFCCP Opens Hotline for Complaints of Race and Sex Stereotyping in Workplace Training

By Guy Brenner and Caroline Guensberg on Posted in Discrimination, OFCCP

As we previously reported, on September 22, 2020, President Trump issued his “Executive Order on Combatting Race and Sex Stereotyping” (the “Order”), which seeks, among other things, to prohibit government contractors from including certain concepts in diversity and awareness trainings.  The Order directed the Office of Federal Contract Compliance Programs (“OFCCP”) to establish a “hotline” to receive and investigate complaints that contractors are implementing employee training programs that violate the Order, as well as Executive Order 11246, and to take “enforcement action and provide remedial relief, as appropriate.”  On September 29, 2020, OFCCP announced the launch of this hotline and the creation of an email address and online portal that employees may use to submit complaints regarding training programs they believe violate the Order or Executive Order 11246.

Although  OFCCP notes that the Order only applies to Federal contractors “with Federal contracts entered into 60 days after the date of the [O]rder, or Nov[ember] 21, 2020,” the agency’s announcement warns that “training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.”

Government contractors should therefore be aware that their trainings may be the subject of complaints, irrespective of whether they enter into a new federal contract after November 21, 2020.

We will continue to advise our readers of developments related to the Order and its implementation.

OFCCP Provides Guidance On New Promotions and Accommodations Focused Reviews

By Guy Brenner and Caroline Guensberg on Posted in OFCCP

As we recently reported, OFCCP has issued its 2020 Corporate Scheduling Announcement List.  That list included contractors selected for two new types of reviews focused on promotions and accommodations.  Other than some comments made by Director Leen in speeches, contractors had little information concerning the new types of reviews and what they entailed.

That is, until now.  On September 23, 2020, OFCCP announced the launch of two websites providing information on the new Promotions Focused Reviews and Accommodations Focused Reviews.  These websites provide an overview of the new types of focused reviews and the scope of the new evaluations.  The websites also include FAQ sections (see here and here) related to these new focused reviews, answering anticipated questions contractors may have concerning these new audits.  OFCCP has stated it will update the sites in coming months “to include best practices and other types of resources for both types of focused reviews.”

Note that OFCCP has not yet proposed scheduling letters for these new focused reviews.  Until it does so, and such letters are approved by the Office of Management and Budget, it will not be able initiate such reviews.  Even so, the new guidance provides contractors selected for such reviews some information upon which to prepare.

Below we summarize some of the key information provided by the OFCCP on its new websites.

Promotions Focused Reviews

The Promotions Focused Reviews site states that these evaluations will look at “contractor data, policies, and procedures related to promotions to ensure that federal contractors are meeting their equal employment opportunity obligations.”

The new website also gives contractors a sense of what these new reviews will entail.  It explains that during the course of promotions focused reviews “Compliance Officers will review, among other things, contractor policies and procedures, employee personnel files, and personnel data tracking contractors’ promotion decisions. . . .  OFCCP may also evaluate hiring and compensation policies, procedures, and data, as appropriate, to determine if qualified applicants are being steered into lower paying positions with limited upward mobility or otherwise prevented from advancing professionally.”

As with the Section 503 and VEVRAA focused reviews introduced last year, this focused review has a mandatory “on-site” component, during which compliance officers will “conduct interviews with managers responsible for promotion decisions and, if applicable, with affected employees.”  Such interviews should take place virtually while COVID-19 related social distancing measures are in effect.  It is also possible OFCCP will continue virtual on-sites after the pandemic concludes, as Proskauer has learned that OFCCP has found virtual on-sites to be effective and efficient.

The site also provides answers to frequently asked questions (“FAQs”) regarding these kinds of reviews, including what promotions focused reviews are and why such evaluations are being conducted.  The FAQs also covers:

  • How OFCCP defines “promotion.” The FAQs explain “OFCCP’s Federal Contract Compliance Manual (FCCM) defines promotion as ‘[a]ny personnel action resulting in, for example, the movement to a position affording higher pay, greater rank, change in job title, or increase in job grade; an increase in pay, requiring greater skill or responsibility; or the opportunity to attain such.  A promotion may be either competitive or noncompetitive.’  The definition of promotions as inclusive of advancement opportunities recognizes that promotion policies and/or procedures may effectively foster or hinder advancement and, as such, should be examined and corrected if discriminatory.”
  • Actions contractors should take in preparing for such a review. The FAQs provide that contractors can take steps such as “evaluating personnel activity (including promotions) and selection procedures to identify whether disparities on the basis of a protected characteristic [exist].”
  • Whether contractors can be subject to another kind of compliance evaluation while a promotions focused review is pending at the same establishment. The FAQs provide that “[w]hile a focused review is pending at an establishment, that establishment will not be scheduled for any other types of compliance evaluations.”

Accommodations Focused Reviews

The Accommodations Focused Reviews site provides that such evaluations will look at “a contractor’s policies and procedures related solely to religious and disability accommodations.”  To assist contractors meet their religious accommodation obligations, the site directs contractors to the Equal Employment Opportunity Commission Religious Discrimination Guidance.

The site also describes what contractors can expect during these focused reviews:  “Compliance Officers will examine a contractor’s policies and procedures related solely to religious and disability accommodations, as identified in the scheduling letter.  The Compliance Officer will specifically review documentation relating to accommodation requests and dispositions, with a particular emphasis on denial(s) of accommodation.”

This focused review, like other focused reviews, has a mandatory “on-site” component, during which compliance officers will interview “managers responsible for or involved in the accommodation process as well as with affected employees and applicants.”  Such interviews should take place virtually while COVID-19 related social distancing measures are in effect.  It is also possible OFCCP will continue virtual on-sites after the pandemic concludes, as Proskauer has learned that OFCCP has found virtual on-sites to be effective and efficient.

The FAQs page for accommodations focused reviews also provides answers to anticipated questions regarding the scope and purpose of such evaluations.  The FAQs include information regarding the OFCCP’s views on the legal obligation to accommodate disability and religious accommodation requests, as well as the availability of the undue hardship exception to providing requested accommodations.  Like the FAQs for Promotions Focused Reviews, these FAQs note that “[w]hile a focused review is pending at an establishment, that establishment will not be scheduled for any other types of compliance evaluations.”

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