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OFCCP Issues NPRM on Procedures to Resolve Potential Employment Discrimination Violations

OutSolve

If passed, the rule will allow contractors to bypass the PDN and NOV procedures and go directly to conciliation.

On December 30, 2019, OFCCP published a notice in the Federal Register of its intention to codify the current procedures used to resolve violations. These will specify and provide definitions to clarify the types of evidence required to support a finding of discrimination. The definitions will explain the difference between “statistical” and “nonstatistical” evidence.

The proposed rule would codify procedures for the use of Predetermination Notices (PNDs) and Notices of Violations (NOVs). Keep in mind that OFCCP published Directive 2018-01 to address contractors' concerns about being treated dissimilarly in different regions.(See previous blogs: March 14, 2018 and January 30, 2019). The codification proposes that contractors may bypass PDN and NOV procedures when there are preliminary findings of material violations, including violations involving discrimination, and move straight to conciliation.

The rule also defines the statistical thresholds required for the issuance of a PDN, providing that a PDN will not be issued when statistical indicators of discrimination are below three standard deviations absent “corroborating nonstatistical evidence” that “demonstrate[s] an intent to discriminate.” “Corroborating nonstatistical evidence” is not required to issue a PDN where the statistical indicators of discrimination are at or above three standard deviations.

OFCCP is seeking public comment by January 29, 2020. Comments can be viewed or made here.

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