Certainly, there is no doubt that getting through an audit has become exponentially more complicated and time consuming, but this is because the agency has become smarter about its audits. Federal contractors that are only looking to the regulations have lost sight of the ultimate objective, which is, of course to eliminate discrimination, which is accomplished by identifying and remedying indicators or patterns of discrimination within their workplace in real time.
You already know that as a federal contractor, to comply with the regulations that are subject to OFCCP enforcement, your company must not discriminate against someone based on certain traits. You must positively recruit (affirmatively act) in order to generate applicants or pools that consist of certain groups that have historically been victims of discrimination or otherwise disfavored because of a particular characteristic. What has evolved quite a bit since the inception of the regulations enforced by the OFCCP are the forms of discrimination that OFCCP has discovered and how subtle it can be, and with that, OFCCP’s sophistication of being able to recognize, investigate and prove these subtle forms and patterns of discrimination. The regulations, directives, updated compliance manual, etc., are the tools that the agency has refined to help them conduct investigations based on what they have learned in audits. The OFCCP has not changed their audit practices based on the regulations, but has revised the regulations based on the evolving audit practices. Adapting a business practice therefore to the regulations is a difficult and impractical task. If one learns to properly self-audit their own data, compliance with the regulations naturally follows.
In order to more easily understand where to look for subtle forms of discrimination (as OFCCP does) so that we can apply some easy methods to determine whether there is a problem that needs further investigation, let us start with some important distinctions. There are two types of discrimination cases investigated by the OFCCP: disparate treatment and disparate impact. The difference between the two terms is that disparate impact cases do not require the contractor to have intent when discriminating. Yes, a company can discriminate without intent! This often surprises federal contractors.
So what difference does the type of discrimination make and how is this relevant to the regulations? Think about it from an auditor’s perspective. Is your company intentionally discriminating? No. Is there adverse impact? That question may be harder to answer. In order to figure this out, you can run an easy analysis to spot check all movements in your company. A hiring analyses, sometimes called a hiring table, is one great tool and an easy way to take a quick look at many patterns in your data to determine what groups are favored versus disfavored. It absolutely is not limited to hiring. This analysis can be applied to not only promotions and terminations easily as well, but anywhere you want in order to look for patterns in your data. You can analyze particular hiring managers, how dispositions are assigned, whether a particular group is favored when it has a preferred characteristic, such as an employee referral, or how a test affects your group. The possibilities to check for patterns are endless. This tool is extremely easy to run for anyone that has a basic knowledge of how to use a pivot table. Excel will even put it into a handy chart or graph for you with a few clicks if you want to get fancy.
This analysis helps one see a snapshot of many rates side by side versus just numbers or standard deviations. At your company, for example, you might have hired or promoted roughly an equal amount of men and women at your facility last year, so it feels fair. Or perhaps, your workforce is consistent with availability. However, when you look at those that applied or who were eligible for promotion, then you might better see problem areas. For example, if you have a pool of 100 eligible women for promotion into a particular job, but only 65 men with about an equal number of promotions, say, 15 each men and women, then there is obviously a problem. When you lay all of these numbers out in one table side by side, you might then see a rate for women of 15 percent, but 23 percent for men. You might see a bigger problem when looking at African American females, but perhaps the rates are fine for African American males – good enough to have hidden a disparity. You will also see how all the other groups by race, gender and ethnicity fall into place. What looked harmless a few minutes ago becomes a bit alarming. When we look at each minority group by race and sex, we see the disparities among each group and patterns in the workforce will emerge. We see what groups fall above and below the overall rate. This analysis is a tool used by OFCCP in certain regions in every case that goes beyond the desk audit. Since OFCCP is using this tool regularly, it may be a good idea to consider using it too.
Once you get into the habit of spot checking data as you run your required analyses every year, or at other key times, you will see that this is an easy tool to look for patterns in your data so that you are not surprised in an audit. If you are aware of patterns in your data and problem areas, you can remedy or support them with records before that audit letter ever comes. More importantly, by running a few easy tests, you have your finger on the pulse of what is happening in your workforce and can address any concerns before they become a problem. Of course you need to ensure you maintain all other areas of compliance such as outreach, posting jobs and proper recordkeeping. Also, good (and required) annual training to make sure everyone understands his or her role and the importance of following policy, should never be underestimated. These technical aspects are critical of course, but understanding and addressing patterns in your data and within your workforce ensures that there is no unintended discrimination and naturally aligns your practices with the intentions of the regulations, making compliance as a whole a much easier process.
No one will tell you that it is easy to be a federal contractor, but there are certainly less cumbersome routes to get from point A to point B. With the right tools in your toolbox, perspective and practical understanding – and perhaps some methods of analyses that OFCCP often uses in its audits – compliance can be an easier mountain to climb.
This article is intended for information only. It is not legal advice and should not be relied upon as such. For more information, please contact Lisa Kaiser at Lisa.Kaiser@Kaiser-Law-Group.com