Final rule specifies the types of evidence OFCCP uses to support its findings of discrimination
OFCCP published the final rule to codify procedures the agency uses to resolve potential discrimination and other material violations of E.O. 11246, VEVRAA and Section 503. The “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination” was published in the Federal Register to increase clarity and transparency for federal contractors. The final rule adds definitions to specify the types of evidence OFCCP uses to support its findings of discrimination and codifies the guidelines used for issuing predetermination notices (PDN) and notices of violations (NOV).
The agency feels that 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.”
The following are notable changes from the Notice of Proposed Rulemaking (NPRM) to the final rule.
New definitions added. The terms “qualitative evidence” and “quantitative evidence” were added to the final rule to clarify the types of evidence OFCCP relies on to support the issuance of a PDN or NOV. In the final rule “quantitative evidence” replaces the definition of “statistical evidence.” OFCCP has not yet finalized the definition of “practical significance.”
“Qualitative evidence” includes the various types of documents, including factual testimony, written communications, company policies, and interview statements, which OFCCP collects during the review relevant to the finding of discrimination.
“Quantitative evidence” is included to clarify the support needed for OFCCP to determine if there is a statistically significant disparity in either the contractor’s selection or compensation outcomes affecting a particular group. These may also include cohort analyses comparing similarly situated individuals or a small group of applicants/employees that are numerical in nature. “OFCCP’s definition of “quantitative evidence” provides a list of parameters and variables generally used by employers that OFCCP will use in its hypothesis testing.”
- OFCCP has not yet agreed upon a definition of “Practical Significance” since there is not a settled definition in academic literature. OFCCP will continue to evaluate its position and propose a new rulemaking if it determines that such thresholds should be codified. However, according to OFCCP “practical significance refers to whether an observed disparity in employment opportunities or outcomes reflects meaningful harm to a disfavored group.” OFCCP will use this to target the strongest cases with the most compelling evidence.
The final rule differentiates between the evidence necessary dependent on the theory of discrimination at issue.
The timeframe for contractors to respond to a PDN increased from 15 days to 30 days. “OFCCP may proceed with issuing a PDN where the qualitative evidence is particularly strong, such as when the agency encounters a facially discriminatory policy or a contractor has admitted to discriminatory conduct.” OFCCP recommits to being transparent in disclosing the “quantitative evidence, the determination of potential significance, and the summary of the relevant qualitative evidence” the agency has obtained, where applicable.
- The final rule also codifies the expedited conciliation option proposed in the NPRM. The rule allows contractors to bypass the PDN and NOV procedures to enter directly into a conciliation agreement when there are preliminary findings of violations whether or not the violations involve discrimination.
The final rule, in § 60-1.33(b), makes it clear that NOVs alleging discriminatory findings are subject to the same requirements as PDNs and that the agency will consider the arguments and documentation provided by contractors in response to PDNs.
There were no revisions made to the Show Cause Notice (SCN) or Conciliation Agreement existing sections. The final rule “retains OFCCP’s ability, consistent with current practice, to proceed directly to issuing a SCN for cases in which the contractor either denies access or otherwise fails to submit information requested in OFCCP’s OMB-approved scheduling letters.”
The regulations are effective December 10, 2020.