January 31, 2020
In a joint comment letter, HR Policy Association and the Institute for Workplace Equality detailed how a proposed rule from the Office of Federal Contract Compliance Programs (OFCCP) to streamline the auditing process for federal contractors misstates and ignores well-established Title VII law.
The proposed OFCCP rule is intended to provide federal contractors with greater certainty about the procedures the agency uses when issuing predetermination notices and Notices of Violations, which precede litigation enforcement actions. In doing so, the proposed rule correctly notes that the OFCCP must consider two questions before issuing notice of a preliminary finding of discrimination during a review:
However, the proposed rule retreats from well-established Title VII principles and the governing rule of law by improperly rejecting the need for anecdotal evidence. It further allows the OFCCP to issue predetermination notices and Notices of Violations on the basis of statistical evidence alone.
The comments recommend a number of changes to the proposed rule, including:
Outlook: The OFCCP will likely publish a final rule later this summer, and begin applying the rule 90 days later. HR Policy will continue to monitor this issue.