OFCCP Update for Government Contractors.

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Continuing on with a busy year, the Office of Federal Contract Compliance Programs has engaged in additional actions of interest to government contractors and subcontractors.

  • The OFCCP has issued a final rule, setting forth the procedures it uses to resolve claims of potential discrimination and other legal violations. There are some changes from the proposed rule that we discussed in our January 2020 E-Update. Among other things, the final rule does the following:
    • It codifies the procedures that OFCCP uses to resolve discrimination claims – specifically Predetermination Notices (PDN), Notices of Violation (NOV), and an expedited conciliation option.
    • It provides greater clarity as to the types of evidence that OFCCP utilizes in determining whether violations have occurred.
    • It differentiates the procedures and evidentiary standards for disparate treatment and disparate impact theories of discrimination, which have separate, although similar, elements.
    • It requires the OFCCP to explain in detail the basis for its findings in pre-enforcement notices, obtain approval from the OFCCP Director or acting agency head, and, upon the contractor’s request, provide the model and variables used in the agency’s statistical analysis and an explanation for any variable that was excluded from the statistical analysis.
  • A new Technical Assistance Guide for Supply and Service Contractors. The Guide outlines a contractor’s equal employment opportunity obligations, lists the required components of mandatory affirmative action programs, and discusses what to expect during compliance reviews.
  • The Department of Labor (of which the OFCCP is part) and the Equal Employment Opportunity Commission revised their Memorandum of Understanding (MOU) on the coordination of civil rights enforcement. Among other things, the revisions grant the OFCCP greater latitude to retain and investigate individual complaints of discrimination, rather than being required to refer them to the EEOC. Thus contractors and subcontractors should be aware that the OFCCP may begin to conduct more investigations into employee discrimination complaints. Although the EEOC’s procedures for such investigations are quite well-established, the OFCCP’s processes are not as clear.