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There has been much talk recently about Office of Federal Contract Compliance Programs (OFCCP) and steering, and for good reason. Steering is an employment practice that directs a certain subgroup toward a specific set of jobs or lower paid positions. For example, if you have two open laborer positions, one of which is consistently lower paid with lower promotional opportunities, and have a hiring manager who directs women toward the lower opportunity position. OFCCP remains focused on potential steering issue – in part because steering cases may impact compensation as well as all selection decisions. Where a company directs good faith efforts can be used as evidence in steering cases, according to recent settlements. Are you directing, intentionally or not, women to housekeeping positions and men to janitorial positions – even though the skill sets needed can be the same?

The biggest red flag of steering seems to be in the hiring process, and can be for any group. For example, directing Blacks instead of Hispanics towards a certain job. Organizations should do a proactive analysis and look for concentrations of protected groups by department, shift, or territory. Are your women sales workers given less successful territories? Where employees are slotted can affect promotional opportunities and compensation. Steering can affect all areas of the affirmative action plan.

A good example of steering is a $2.2 million settlement with a leading bank for racial discrimination. Here are the settlement highlights from OFCCP’s newsroom:

“The ruling represents a major victory in a case that has spanned nearly two decades, during which “The Bank” repeatedly challenged the authority of the department’s Office of Federal Contract Compliance Programs. The ruling awards $964,033 to 1,034 applicants who were rejected for jobs in 1993 and $1,217,560 to 113 individuals who were rejected between 2002 and 2005. It further orders “The Bank” to extend job offers, with appropriate seniority, to 10 class members as positions become available. After hearing from experts on both sides, the judge agreed with the government’s positions on every issue in dispute. Notably, she rejected “The Bank’s” arguments for a lower award on the grounds they could not take advantage of missing records they had failed to keep.On Nov. 24, 1993, OFCCP initiated a routine compliance review that revealed indications of systemic hiring discrimination affecting African American job seekers at the Charlotte facility. After conciliation efforts failed, the Solicitor of Labor in 1997 filed an administrative complaint against the company for violating Executive Order 11246, which prohibits federal contractors from discriminating in employment practices on the basis of race.”

To try to identify steering issues, contractors can look for concentrations of certain subgroups by job group. One way to identify potential steering is to review under or overutilization in job levels. If the availability for women in housekeeping is 80%, but you are employing women at 95%, there may be a steering issue. Contactors should be reviewing their selection and compensation processes to identify if any group seems to be directed to lower paying or lower opportunity positions – with no basis on relevant job criteria.

For more information on steering, and how OFCCP is currently enforcing it, please contact a Berkshire compliance expert at 800.882.8904.


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