HR Policy Submits Comments Urging OFCCP to Follow Title VII Principles When Conducting Audits

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:

  • Whether an unexplained disparity is both practically and statistically significant; and

  • Where relevant, whether non-statistical, anecdotal evidence demonstrates an intent to discriminate.

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:

  • Clarifying the proposed rule only applies to disparate treatment pattern or practice cases;

  • Not using statistical indicators and thresholds used in reviews as bright line tests, but rather guideposts that will be applied and interpreted with the appropriate context; and

  • Requiring National Office review and approval of any notice, preliminary or otherwise, that does not address practical significance or include anecdotal evidence.

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.