Detecting bias in promotion activity can be challenging. From an enforcement perspective, promotion discrimination is difficult to fit into a systemic framework which makes it hard to get the “bang for the buck” enforcement OFCCP prefers. From a compliance perspective, there are the challenges of defining the promotion pools for purposes of analysis and of understanding how to measure the promotion candidates against each other. Each of these challenges is discussed below.
OFCCP has struggled for years to find and remedy discrimination in promotions and has not met with much success. This lack of success has been due in large part to the type of data that contractors submit in response to the scheduling letter and OFCCP’s analytical approach to promotions. The current scheduling letter allows contractors to submit data by either job group or job title showing the upward mobility rate of minorities and women. The information submitted shows the promotion rates of minorities and females into, out of, or within job groups.
The agency’s first step in analyzing promotions is usually to separate out the career ladder and non-career ladder promotions. Career ladder promotions are built into the feeder position. The employee’s acceptable performance at a lower level is intended to result in a non-competitive promotion within a certain period of time to the next higher level. If career ladder, non-competitive promotions were analyzed by the agency at all, they would be analyzed to determine if females and minorities received their expected non-competitive promotions to the same extent and within the same time frames as non-minority and male comparators.
For non-career ladder, competitive promotions, the agency would look at the job groups or titles that produced a statistically significant indicator. The agency would look at the individual promotion decisions for evidence of discrimination, and usually and fairly predictably found no statistical evidence of discrimination in the specific promotion decisions and the overall indicator was treated as resolved. This analysis, in effect, disaggregated the data.
This analytical approach is the opposite of the approach the agency takes with respect to hiring. In the hiring context, the agency routinely declines to look at specific hiring events because it is not interested in the specific hiring event but rather in the pattern of selections over time. The question from the agency perspective is whether the pattern of selections observed creates an inference of discrimination. In hiring, this analysis works because there are often sufficient hiring opportunities during the AAP year in a given position at a given facility to generate reliable standard deviations.
The challenge for aggregation in promotions has been the fact that the agency has always assumed that the aggregation of promotion data required a significant number of promotion candidates for a specific promotion vacancy over the course of the AAP year. This is often not the case in an individual facility. Promotion opportunities at the facility level may be few and have few candidates. This means that to achieve the necessary aggregation of promotion events, the agency would have to look broader than the specific facility under review to pick up a larger number of promotions into a particular position or it would have to look over a longer time period to detect a meaningful pattern of discrimination. Since the agency schedules basically one facility at a time, it has been challenging to pull in promotion selections across multiple facilities or corporate wide. The time period over which the promotions can be analyzed cannot readily be extended because of the limitations on the liability period in the agency’s laws and regulations.
A third possible solution is to find a corporate wide promotion practice that does not rely on similarity in the promotion positions for the aggregation and yet can still be arguably credible. One possibility is to challenge a routine practice of single candidate or hand-picked, high potential candidate “cherry-picked” promotions which are not advertised and where the single or handpicked candidates are statistically significantly homogenous in race or gender. If this is a common practice for a wide variety of promotions and limits promotion opportunities based on race and/or gender, the agency could potentially push for a corporate wide change in the practice and essentially seek to require virtually all promotions to be announced and competitive. This would fit the new definition of systemic discrimination that is emerging at DOL.
Systemic discrimination in this context does not mean simply affected classes of 10 or more as it once did. Rather the concept of systemic expands to the corporation as a whole at a minimum and to the industry as a whole if agency aspirations are realized. A systemic discrimination case would be one that requires a “sea change” in how a corporation or industry conducts their business as a result of OFCCP compliance/enforcement activity. This broader and bolder definition of systemic pervades all of the recent policy initiatives of the agency, including its efforts to gauge the magnitude of its impact through academic studies of the influence of OFCCP compliance activities on corporate and industry-wide behavior. It would be no surprise to see its influence in the analysis of promotions.
Promotion Pool Problem
Hopefully, for most employers and most promotion positions, the promotions are advertised in advance and open to all interested candidates meeting the qualifications of the promotion. Where this is the case, it should be relatively easy for the contractor to satisfy the requirement in the proposed revised scheduling letter to identify, document and track all candidates for each promotion opportunity during the AAP year. In these situations, presumably the actual candidate pools are those individuals who applied for the promotion position.
For positions that are not announced, this data will make it readily apparent whether the candidate pools for promotion are either single candidate or cherry-picked pools. Statistical analyses will determine if the demographics of these pools are consistent with a fair promotion process in the aggregate. Where promotions are not advertised and open, the contractor’s single candidate or “cherry picked” promotion pools may be more vulnerable to challenges.
For example, an employee who is very proactive about his or her career and stays in constant communication with his or her boss and is often given additional duties because they are outgoing, available and reasonably competent may be the first to come to mind when a promotion opportunity presents itself. They are in the right place at the right time and you give them the promotion. You do not document why you gave them the job and even though this was not a career-ladder promotion, other people were not aware of the opening or were not given an opportunity to compete for the position. You report one promotion with a single candidate promotion pool.
In this situation, the agency may want to know who else was available that could have received this tap on the shoulder. Were any of these other employees more qualified than the person selected? Is one race or gender group benefitting from this practice of non-competitive, non-career ladder promotions? The pool from the agency perspective may not consist only of the successful candidate, but of all the employees who could have received the tap on the shoulder promotion selection because they possess similar or greater qualifications than the selectee.
In the “cherry picked” scenario where high potential promotion candidates are picked by a committee, the company may identify its list of high potential employees as the promotion candidate pool. Again, the agency may not agree. It may want to examine the process by which employees are identified as high potential employees in the first place to determine if the process which created your feeder pool for the promotion was itself free from discrimination. This could pull a lot more employees into the promotion candidate pool than the high potential employees identified by your committee.
The agency may want to know whether the group that identifies the high potential employees is itself diverse. How much of a relationship does their definition of “well qualified” bear on the actual duties of the promotion positions? What kind of opportunities for growth are the high potential candidates given and what impact has this had on their promotion potential? Are there disparities of race and gender as a result of these decisions?
The agency may be interested in identifying who else in your organization had the skills to succeed in the promotion position. It may ask why were they not given the kinds of assignments that groomed them for the promotion position. What skills were actually critical to success in the position and why did you not choose a selection process that would have increased the size and diversity of your candidate pool? The answers to these questions may ultimately lead the OFCCP to a different definition of your actual pool of promotion candidates.
Consistency of the Measuring Stick Problem
Even where the position is announced and there is a readily identifiable candidate pool that the company and the agency can agree on, there may be challenges to overcome in demonstrating why the selectee was the best person for the promotion job. For example, performance ratings are often offered as part of the explanation for why one candidate was chosen over another for promotion. In order for this to be an effective explanation, it helps to have some consistency in the rating process. Is a person with 3 outstanding ratings out of a possible 10 always less qualified than the person with 5 out of 10? Do some elements carry more weight than others such that sometimes the person with 3 outstanding ratings may be selected over the person with 5 because of the relative importance of the particular 3 outstanding rating elements to the promotion position? Was this weighting process determined in advance of the promotion process? Is tenure in the division or department that has the promotion vacancy important? For example, do people who already work in the division where the promotion occurs get a preference over candidates from other divisions? If this is the case, does this practice have a disparate impact on any particular group and if so, can it be justified as job related and consistent with business necessity? Does the very lack of consistency in your evaluation process have a disparate impact?
In anticipation of the possible requirement to provide the actual feeder pools for each and every promotion, it would be prudent to check your systems to determine whether you have a significant number of promotions with extremely small candidate pools. You should examine the demographics of all of your promotion candidate pools and see what picture will be painted of the overall pattern of promotions at your company.
You will need to be able to explain who you considered for promotion and why that pool is the appropriate pool for analysis. You will also want to know what overall message the size and composition of your pools will send to the agency. In composing your pools, be careful not to include lateral transfers and other employee movement that were not actually promotion decisions.
By having a very clear idea of what characteristics you are looking for in filling the promotion position, documenting these in advance and ensuring that there are good business reasons for these particular qualifications, it will be much easier, after the fact, to defend your selections.