November 13, 2020
The Office of Federal Contract Compliance Programs has codified its procedures and evidentiary standards, relying less on pure statistical evidence to determine job discrimination by federal contractors.
Under the final rule, both statistical data and qualitative evidence, (e.g., documents and testimony), are needed to support findings in disparate treatment cases—those in which an employee alleges she or he was treated differently than other similarly situated employees due to a protected trait. The final rule also clarifies “there is no set quantum of qualitative evidence; rather, the required strength of the qualitative evidence depends on the strength of the quantitative evidence and the extent of the practical significance.”
For disparate impact cases—where an employer's neutral policy may have an adverse effect on a particular group—OFCCP says it must uncover statistical evidence, determine its practical significance, and identify the specific policy or practice of the contractor causing the adverse impact.
The rule also clarifies definitions regarding the types of evidence OFCCP uses to support its discrimination findings.
Civil rights groups contend the new regulations will make it harder for workers to bring discrimination charges, insisting that federal courts recognize statistical evidence alone as sufficient to support a preliminary finding of bias.
Takeaway: Converting the guidance OFCCP has used since 2017 into a formal “notice and comment” regulation makes it harder for future administrations to unravel the directive.