ADMINISTRATIVE LAW JUDGE (ALJ) RULES AGAINST BANK OF AMERICA

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

On January 21, 2010 Linda S. Chapman, a Labor Department Administrative Law Judge (ALJ), ruled that Bank of America (BOA) was guilty of a pattern or practice of discrimination against black applicants for four entry-level jobs in administrative/clerical job categories in 1993, and again from 2002 to 2005. BOA was given14 days to appeal the ruling to the Secretary of Labor. Chapman ruled that the OFCCP established a prima facie case of a pattern or practice of discrimination, which BOA could not successfully rebut. The complete ruling is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-82dlq7.

The case originated against NationsBank, which was later acquired by BOA. After a 5-day onsite compliance review at a North Carolina branch, the OFCCP requested additional statistical information from that branch, as well as from branches in Tampa and South Carolina, which had not been a part of the initial audit. NationsBank objected based on the 4th Amendment to discovery at the Tampa and South Carolina branches, and later, to discovery at the North Carolina branch as well. Originally, 4th Amendment rulings were made favoring the bank, both within the Department of Labor and the federal courts. However, these rulings were overturned. The delay afforded the OFCCP the opportunity to add the charges for the later years. BOA argued that the OFCCP was afforded 15 years of discovery, which ALJ Chapman rejected on grounds that the delays were due to the 4th Amendment claim and subsequent appeals.

Two bank recruiters testified that the selection process involved two steps: (1) from application to interview and (2) from interview to job offer. Theresa Simmons, the recruiter for two of the jobs, testified that in the early 1990s, jobs were advertised twice weekly in the local newspaper, and were posted with the EEOC. Applicants then came in to complete applications. An administrative assistant tore off attachments with EEO information (i.e. race/ethnicity and sex), and decisions were made regarding which applicants to interview. According to Simmons, she did not know the race of any applicant until they came in for interviews. The recruiter for the other jobs (Donna Craddock) described a similar process, and both recruiters testified that the major difference in later years was the addition of Internet recruitment. Applicants were excluded at either step based on reference checks, credit history, job-hour compatibility, and after job offers based drug tests.

The prima facie case was based on statistical analyses by Dr. David L. Crawford and the testimony of three excluded applicants. Crawford testified that there were significant applicant flow disparities in both time periods for (1) applicants selected for job interviews and (2) interviewees selected for the jobs, arguing that there were shortfalls in both time periods for both steps of the selection process well in excess of 2 standard deviations. BOA’s expert, Dr. Joan G. Haworth, cited several flaws in Crawford’s analysis, most notably: (1) mistakes in the data that were not corrected; (2) aggregation of the clerical and administrative jobs; (3) inclusion in the analyses of applicants excluded based on credit checks (coded RC) and time incompatibilities (coded RH). When Haworth separated the two job classifications, there were no shortfalls for administrative jobs, and that the shortfalls for the clerical jobs were eliminated when the RC and RH applicants were excluded. Haworth also testified that the charges were fallacious because the allegations involved only 2 of 33 classifications, and there were no shortfalls in the other 31 classifications. Two other points are worth noting. First, there was some debate about whether exclusion decisions based on the RC and RH codes were implemented in a standardized fashion. Thus, in essence OFCCP alleged that discrimination could occur via the subjectivity involved in making those exclusionary decisions. Second, a multiple events Fisher’s exact test was used to measure adverse impact by both sides. This methodology was accepted and not an issue of contention.

There were other criticisms back and forth between Crawford and Haworth. This was clearly a complicated case. Nevertheless, the main issues in the eyes of ALJ Chapman were that Crawford was justified in aggregating the two classifications and by including the applicants coded RC and RH. Based on her interpretations of major Supreme Court pattern or practice rulings in International Teamsters v. United States (1977) [431 US 324] and Hazelwood School District v. United States (1977) [43 US 299], ALJ Chapman ruled there were “gross” disparities sufficient for a prima case of a pattern or practice of discrimination that BOA could not rebut.

It is interesting to consider whether this case would have played out differently in a federal court; let’s imagine this was a pattern or practice case brought to a district court. As such, the plaintiffs would present their statistical evidence together with individual claims of disparate treatment. The defense could then rebut the prima case with its own statistical evidence and the court would decide if there is a prima facie case. For example, in Hazelwood, the Supreme Court accepted the defendant’s statistical rebuttal and ruled there was no prima facie case. In contrast, in Teamsters, there was an “inexorable zero” number of minorities in an at-issue job classification, making the prima facie case irrefutable. In the BOA case, there were two refutable applicant flow disparities, and it is arguable that a federal district court judge would rule there is no prima facie case on two grounds. First, the applicant flow disparities were not statistically significant when proper controls were used, and second, two disparities out of 33 job classifications is insufficient evdience to make a prima facie case of “systemic” discrimination.

Returning to federal court, a successful prima facie claim in either a disparate treatment or pattern or practice case would then pass a relatively light burden to the defendant to articulate (i.e., to explain in words without have to factually prove) a legitimate nondiscriminatory reason for the statistical disparities. That explanation could take several different routes, the most obvious one being that the recruiters did not know the race of the applicants prior to interviews, and that they were unbiased in their decision making. It would now be up to the plaintiffs to prove that the explanation(s) offered are a pretext for discrimination. As the ALJ ruling stands, it appears that a burden was placed on BOA to prove that the various procedures used in the selection process were not discriminatory.

Note that some testimony suggests that the plaintiffs would not succeed in a pretext argument. First, the OFCCP’s auditor himself testified that exclusion based on credit checks is not suspect for bank jobs. Second, Crawford testified that he had no evidence to believe there was bias on the part of the recruiters. Nevertheless, ALJ Chapman ruled that BOA could not prove there was no bias by the recruiters. Is this consistent with the traditional burdens of proof by plaintiffs and defendants in disparate treatment and pattern or practice cases?

What this case illustrates is that the OFCCP may have, in effect, the power to transcend traditional federal court principles. In order to get to federal district court, BOA would have to appeal once again (this time to the Secretary of Labor), and lose again. This is an arduous (and expensive) process. That’s why challenges to OFCCP rulings in federal court are rare. Yet, cases like this one belong in federal court. Traditionally, pattern or practice cases are built on “statistical disparities between composition of the workforce as compared to composition of the labor pool (as in Hazelwood) or composition of two or more jobs within the same company (as in Teamsters). Here, the claim of “systemic” discrimination was based on applicant flow disparities. If there is a legitimate claim here, it may be an adverse impact one, not pattern or practice. But that’s another matter altogether.

THE NEW OFCCP ADMINISTRATION: FOCUS ON VETERANS AND INDIVIDUALS WITH DISABILITIES

by Joanna Colosimo, Consultant, DCI Consulting Group

For Fiscal Year 2010, there was a 16% increase to the OFCCP’s budget, which represents the largest percentage increase the agency has received on record. This addition to the agency’s budget will allow the OFCCP to increase the number of compliance officers, and subsequently will allow for more compliance evaluations over the next few years, including an increase in more on-site compliance reviews. We are expecting that the number of compliance evaluations could jump from an average of 4,000 to 7,000 per year.

Other things to be on the lookout for from the OFCCP include the interpretation of the changes made on the 2000 regulations and a focus on Individuals with Disabilities and covered Veterans.

Interpreting the Regulatory Changes Made in 2000
This is the first time a Democratic administration has been able to enforce the regulations put forth in 2000, so it will be interesting to see how they interpret items such as “contractors must conduct in-depth analyses for the total employment process…”(41 CFR 60-2.17b) differently from the preceding administration. Other parts of the regulation that will be open to interpretation include:

• 41 CFR 60-2.17b(2) – Personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities.
  The OFCCP may encourage submission of personnel information that includes other personnel activity than applicants, terminations, and promotions, such as transfers or reorganizations.



• 41 CFR 60-2.17b(4) – Selection, recruitment, referral, and other personnel procedures to determine whether they result in disparities in the employment or advancement of minorities or women.
  The OFCCP may request or expect information that goes above and beyond the applicant analysis, such as a statistical analysis of a contractor’s selection testing or background check process.



• 41 CFR 60-2.17b(5) – Any other areas that might impact the success of the affirmative action program.
  The OFCCP may request analytics that measure other action-oriented activities such as mentoring programs or succession planning initiatives.



• 41 CFR 60-2.17d – Internal audit and reporting system. The contractor must develop and implement an auditing system that periodically measures the effectiveness of its total affirmative action program.
  The OFCCP may initiate requests during audits for items such as the most recent review of job descriptions, results of employment referral activities, or documentation related to internal reporting sessions.

In anticipation of additional information requests from the OFCCP during compliance evaluations, contractors should be internally monitoring all personnel actions, and proactively conducting disparity analyses related to all aspects of their selection processes.

Focus on Covered Veterans and Individuals with Disabilities
Another initiative that Patricia Shiu (Director of OFCCP) has made a priority is the announcement of a notice of proposed rule-making (ANPRM), which is tentatively scheduled to be released in December 2010. In particular, Shiu has made the enforcement of affirmative action efforts for Individuals with Disabilities and covered Veterans a top priority of her administration, and has plans to update the regulations for the enforcement of this initiative. This initiative contributes to Secretary Solis’ policy goals of “good jobs for everyone”. The OFCCP recently hosted a series of webinars led by Shiu in which the agency actively sought feedback from the contractor community on how the proposed regulations should be modeled.

The proposed rule will be designed to increase opportunities for covered Veterans with federal contractors and subcontractors, as well as strengthen affirmative action requirements so that federal contractors and subcontractors will be required to increase monitoring of employment practices in order to improve recruitment, hiring, training, and other opportunities for covered Veterans. The agency is starting this rulemaking with an ANPRM in order to seek feedback from the public and to address the following challenges:

• Identifying the appropriate data for use in determining how to set hiring goals for Individuals with Disabilities;


• Assessing employer compliance burdens; and


• Assessing the impact on small businesses.

The OFCCP is urging the public to make comments on this ANPRM, specifically related to the following issues:

• How affirmative action requirements can be strengthened so that employment opportunities for people with disabilities are measurably increased;


• How federal contractors and subcontractor can improve monitoring of their employment practices to identify barriers to the employment of Individuals with Disabilities and improve employment opportunities; and


• What specific employment practices have been verifiably effective in the recruitment of Individuals with Disabilities and covered Veterans.

Even in recent audit situations, many compliance officers are asking contractors to provide detailed listings of their Affirmative Action recruitment efforts for covered Veterans and Individuals with Disabilities, as a means to gather information for contractor best practices. Some contractors and experts in the compliance community are reluctant to solicit disability status pre-offer, in fear of violating certain of the Americans with Disabilities Act (ADA). It is unclear what expectations the OFCCP has for contractors in their future obligations, but it is clear that the OFCCP is seeking feedback in order to develop new regulations with regards to Individuals with Disabilities and covered Veterans.

Furthermore, it appears that the OFCCP is pro-actively requesting Veteran information from contractors during compliance reviews (see sample data request below). Tom Wells, the OFCCP District Director of the Baltimore District Office, recently told the contractor community that the OFCCP is now requesting the submission of VETS-100 and VETS-100A reports with compliance evaluations. However, this request is not currently one of the 11 items listed on the scheduling letter approved by the Office of Management and Budget (OMB). It is unclear whether the OFCCP must receive approval from the OMB in accordance with the Paperwork Reduction Act to require contractors to submit as part of the desk audit.

Recently, DCI has seen the OFCCP ask contractors for a variety of materials during an onsite compliance evaluation, with a focus on Veteran and Disabled outreach. Some materials requested during a compliance evaluation have included:

• A written description of the application process


• Sample job ads


• Samples of all personnel action forms (e.g. application, self-id forms, performance evaluations, disciplinary action, terminations, requests for promotion or transfer, etc.)


• A copy of the employee handbook


• A list of females that have taken maternity-related leave, their current employment status, and a copy of the maternity leave policy


• A copy of the company’s VETS-100 and/or VETS-100A reports


• Documentation demonstrating the company’s outreach and positive recruitment for covered Veterans and Individuals with Disabilities, specifically including:


• The number of partnerships with local Veterans’ service organizations and/or disability referral sources


• Established liaison with the state workforce agency job bank


• The number of job advertisements in the community targeting Veterans and Individuals with Disabilities


• Affirmative action steps taken to attract qualified individuals with disabilities and disabled Veterans


• List of Veteran and Disabled recruitment resources, contacts for each source, and a list of applicants referred from each source, including the applicant’s hiring status



• A list of all applicants who applied and identified themselves as Individuals with Disabilities


• A list of all employees who have self-identified as Individuals with Disabilities and/or covered Veterans


• A list of any accommodations made for the physical and mental limitations of Individuals with Disabilities


• Copies of the last three job descriptions where the physical and mental job qualification requirements were reviewed and updated


• Copies of purchase orders and contracts with the company and/or subcontractors

Currently, the best practice for federal contractors is to continue to be pro-active in their good faith recruitment efforts of Individuals with Disabilities and covered Veterans. Contractors should continue to internally report and document these efforts, and be prepared to provide the OFCCP with detailed information regarding these efforts in the event of a compliance evaluation.

FUNCTIONAL AFFIRMATIVE ACTION PLAN (FAAP) PROCESS TRENDS

by Keli Parody Wilson, Consultant, DCI Consulting Group

The contractor community has seen a shift in the agencies focus since Patricia Shiu started with the OFCCP, such as increased attention on the area of individuals with a disability and veterans. Federal contractors may be wondering what other changes can be expected by the agency. One trend the contractor community has recently been experiencing is a prolonged approval process for amendments/renewal to Functional Affirmative Action Plan (FAAP) agreements.

A directive on the OFCCP website explains the process contractors must follow when requesting to conduct functional rather than establishment affirmative action plans. FAAP plans are identical in terms of the reports required to prepare and submit during an audit; however, the plan is put together by function or line of business rather than establishment. Agreements expire after 5 years, unless renewed, and as part of the agreement contractors are required to notify the OFCCP of any significant changes in structure that would alter the original agreement (e.g., mergers, acquisition, reorganization, etc.). Federal contractors have recently been finding that their amendments have not been approved by the agency, just prolonged by requests and questions from OFCCP.

For some federal contractors, if there is no communication between OFCCP and the contractor then it’s important to note one policy listed in the directive mentioned above because it may allow for approval through no response:

“After 120 calendar days from OFCCP’s confirmed receipt of the contractor’s request, if OFCCP has neither approved nor disapproved the contractor’s request for a functional AAP agreement, the request will be deemed approved by the DAS and may be implemented 120 calendar days after the date OFCCP received the written request.”

DOL RELEASES OFCCP ENFORCEMENT BUDGET AND INITIATIVES FOR 2011

The full report is available at http://www.dol.gov/dol/budget/2011/PDF/CBJ-2011-V2-04.pdf. Major features include:

· OFCCP will randomly select establishments 2 industries in FY 2010 for baseline measures. Establishments will be re-evaluated in FY 2013 for comparison to the 2010 evaluations. The purpose is to determine if establishments previously evaluated achieve greater compliance when compared to establishments not previously evaluated.
· OFCCP will use its Corporate Management Compliance Evaluation list in a multi-establishment evaluation to assess whether OFCCP’s activities within a single corporation leads to increased compliance by the other establishments within the that corporation. An equal number of random samples will be drawn in 2010 and 2011 to determine if the 2011 evaluations result in higher compliance rates than the 2010 sample.
· OFCCP will complete at least 10 investigations in individual VEVRAA and disability discrimination cases as part of its goal of ensuring a “voice in the workplace.” The goal is to ensure that individuals, as well as classes are fairly treated in the workplace.
· OFCCP will increase compliance evaluation among persistent and egregious violators. An outside consultant will develop a statistical model for targeting violators, and the model will be implemented in FY 2011.
· OFCCP will broaden enforcement efforts relating to both individual and systemic discrimination. The focus will include harassment, retaliation, termination and failure to promote.
· OFCCP will overhaul its Contractor Compliance Manual and develop comprehensive training to help augment the skill sets of its workforce.
· OFCCP will overhaul how it selects contractors for it reviews. The process for referring cases for litigation will be “reengineered.”
· OFCCP will recruit front-line EEO specialists with special outreach emphasis on veterans and individuals with disabilities.
· OFCCP is committed to resolve at least 80 cases in FY 2010 under E.O. 11246, a 77% increase compared to the FY 2009 goal of 45 cases. Priorities will include wage discrimination, promotion, and entry-level jobs.
· OFCCP will increase the percentage of evaluations on compensation discrimination. FY 2010 will serve as a baseline for refinement of “compensation discrimination investigative procedures.”

ADMINISTRATIVE LAW JUDGE (ALJ) RULES AGAINST BANK OF AMERICA

On January 21, 2010, Linda S. Chapman, a Labor Department ALJ ruled that Bank of America (BOA) discriminated against black applicants for four entry-level jobs in 1993 and from 2002 to 2005. BOA was given14 days to appeal the ruling to the Secretary of Labor. The ruling is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-82dlq7. The case was originally initiated against NationsBank, which was later acquired by BOA. Chapman’s ruling was that the OFCCP established a prima facie cases of pattern or practice of discrimination based on applicant flow disparities in 4 of 33 jobs, and BOA could not offer legitimate nondiscriminatory reasons for statistical disparities cited by the OFCCP. This is an unusual and complex ruling that will be discussed in greater detail in an upcoming Blogspot.

CCE RELEASES ITS ANNUAL REPORT ON OFCCP TRANSPARENCY

The full report is available at http://www.cceq.org/. The major findings in the reports are:

• Number of settlements increased from 61 in FY 2007 to 73 in FY 2008


• As in FY 2007, over 95% of the settlements involved allegations of systemic discrimination in hiring


• There were no “Glass Ceiling” Corporate Management Compliance Evaluations (CMCE) audits


• The majority of settlements involved alleged systemic discrimination against applicants for lower level laborer and operative jobs in food service and manufacturing industries


• The typical length of time between the start of the compliance evaluation and the signing of a conciliation agreement or consent decree was about 2.5 years


• Females and minorities benefited in fairly equal numbers in these settlements


• Veteran applicants were alleged victims of discrimination in one settlement because zero veterans were hired


• About 25% of settlements focused on a “Total Minority‟ aggregate as the covered group; a handful of settlements focused on “Non-Hispanics‟ as the covered group


• There were no settlements from compliance evaluations of a Functional Affirmative Action Plan (FAAP)


• Statistical significance testing was used as stand-alone evidence of disparities in over 93% of settlements and 4/5ths rule was used in two settlements


• Enforcement strategies, such as the length of time to conciliation, how data were analyzed, how financial remedies were calculated, etc., varied across the six OFCCP Regional Offices that conducted the compliance evaluations


• Trends were identified when comparing OFCCP enforcement across Fiscal Years 2007 and 2008

OFCCP ADDRESSES FREQUENTLY ASKED QUESTIONS (FAQS) ON RICCI V. DESTEFANO

The first of five FAQs summarizes the Ricci ruling and the remaining four address whether Ricci affects how the OFCCP will conduct compliance evaluations; whether Ricci alters contractor obligations relating to affirmative action and test validation; what contractors should do in light of Ricci; and how the OFCCP will address company decisions to not use tests or other selection procedures because of potential adverse impact litigation. In its answers, the OFCCP asserts that Ricci will not affect how adverse impact of tests and other selection procedures are evaluated; that it will not alter affirmative action obligations of contractors; and that the OFCCP will continue to use the Uniform Guidelines on Employee Selection Procedures (UGESP) in adverse impact evaluations, particularly as relates to job analysis and test validation procedures. Perhaps most importantly, the OFCCP asserts that it will examine complaints on refusal to use tests or other selection procedures to assess whether there is a strong basis in evidence for the refusal, which is consistent with the majority ruling in the Ricci case. The full report on the FAQs is available at http://www.dol.gov/ofccp/regs/compliance/faqs/Ricci_FAQ.htm

ILLEGAL PRE-OFFER INQUIRIES UNDER THE ADA

In a ruling handed down on January 11, 2010 (Harrison v. Benchmark Electronics [2010 U.S. App. LEXIS 632; 22 Fla. L. Weekly Fed. C 416] the 11th Circuit ruled that Benchmark violated the ADA by making an illegal medical inquiry prior to a conditional job offer. This is not a first --- at least six other circuit courts have issued this ruling. However, what is interesting in this case is that the violation occurred in the context of what started out as a legal inquiry. Harrison, a temporary employee applying for a permanent job, tested positive for barbiturates in a legal pre-offer drug test. Harrison explained to his supervisor (Anthony) was due to a legal prescription drug. So far so good. However, Anthony then called the Medical Review Officer (MRO), and the MRO proceeded to query Harrison on the phone while Anthony remained in the room. The MRO then asked Harrison a series of questions such as how long he had been disabled, how long he had taken the medication, etc. The MRO learned, among other things that Harrison was diagnosed with epilepsy at age two, and asked a series of questions related to his seizures. This is legal if done after a conditional job offer. The court ruled “While an exception exists allowing some follow-up questioning in the wake of a positive drug test, that exception is not limitless.”

FURTHER FALLOUT FROM RICCI V. DESTAFANO?

On January 6, 2010, the Chicago Sun-Times (http://www.policeone.com/patrol-issues/articles/1986463-Chicago-police-may-scrap-entrance-exam/) reported that the City of Chicago is considering scrapping its entry exam. This article, written by Fran Spillman and Frank Main suggests that this action would “bolster minority hiring, save millions on test preparation and avert costly legal battles that have dogged the exam process for decades, City Hall sources said.” A similar article was written by Sun-Times columnist Neil Steinberg on January 8 (http://www.suntimes.com/news/steinberg/1979744,CST-NWS-stein08.article). However, on January 14, Police Superintendent Jody P. Weiss (http://www.suntimes.com/news/commentary/letters/1990161,CST-EDT-vox14.articl.)
told the Sun-Times that discussions relating to the exam are not about race, but rather, about establishing uniform procedures that would apply to armed forces personnel as well as local applicants.) Weiss claimed that the City put out bids for online exams and came up empty. Is that a pretext? Stay tuned.

In a case decided on January 13, 2010, District Court Judge Nicholas G. Garufis ruled that the City of New York was guilty of pattern or practice of racial discrimination by administering an entry-level exam for firefighters that was previously struck down by the judge in a July 2009 ruling on ground that it produced adverse impact on blacks and Hispanices, and that “the City has failed to raise a triable issue on this defense” (see 2010 U.S. Dist. LEXIS 2506). In the January 13 ruling, Judge Garufis ruled “Today, the court holds that New York City's use of these examinations constitutes a pattern and practice of intentional discrimination against blacks, in violation of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and State and City Human Rights Laws.” This ruling is a first. Adverse impact claims do not require evidence of a motive to discriminate. This ruling implies that intentional use of an exam that has, in effect, been struck down, constitutes a motive to discriminate. The City of New York intends to appeal, but will have to wait until the judge decides on the remedies. A summary of the rulings is provided by the New York times at the following link: http://www.nytimes.com/2010/01/14/nyregion/14fire.html

FALLOUT FROM RICCI V. DESTAFANO

In Decmeber 2009, the City of Bridgeport, Connecticut settled a reverse discrimination lawsuit with 11 white and 1 Hispanic firefighters relating to a promotion exam. The original weightings on the exam (50% written, 45% oral & 5% seniority) were altered to 25% written, 70% oral & 5% seniority. The newspaper account of this settlement (see link below) states that the re-weighting of the exams allowed more minorities to pass. This account is plainly mistaken. In a letter to the Personnel Director of the Bridgeport CSC dated September 9, 2007, Dr. James L. Outtz, the test developer, explained that the re-weighting was based on an item in the oral component relating to emergency situations which, if failed, could result “in serious bodily injury or death to another person including fire personnel.” Outtz explained that the original scoring indicated promotion of 19 whites, 1 African American, and two Hispanics, and that there was no adverse impact. The re-weighting did not alter the demographic composition of the anticipated promotions. The newspaper account was correct on one issue --- the settlement is clearly fallout from the Supreme Court’s ruling in Ricci. Look for a more detailed discussion of the events surrounding this settlement by Outtz, Gutman & Dunleavy in the April 2010 issue of TIP (at http://www.siop.org/).

http://www.libertylawoffice.com/2009/12/03/city-settles-firefighter-promotion-lawsuit/

RICCI V. DESTAFANO

The Supreme Court’s ruling in Ricci v. DeStafano (June 29, 2009) is discussed by Gutman and Dunleavy in the October, 2009 issue of TIP (The Industrial-Organizational Psychologist). The City of New Haven, Connecticut discarded a promotion exam for firefighters after it was developed and scored because it feared losing an adverse impact challenge by minority firefighters. The Court ruled that New Haven CSC did not have a strong basis in evidence for doing so and ordered summary judgment for the plaintiffs.


http://www.siop.org/tip/oct09/08gutman.aspx

DCI RE-LAUNCHES “DCI CLIENT UPDATES” - DR. ARTHUR GUTMAN EDITOR IN CHIEF

Dr. Arthur Gutman, Professor of Psychology at Florida Institute of Technology (FIT), is the new editor of DCI’s semi-monthly client alerts. Art is author of “EEO Law and Personnel Practices” (Sage, 2000, 2nd Ed) and originator of “On The Legal Front”, a column on workplace discrimination that appears quarterly in the Industrial-Organizational Psychologist. Dr. Gutman also manages a graduate student research group at FIT that is focused on EEO/AA issues. As such, Art and his students are on the cutting edge of Equal Employment Opportunity and Affirmative Action research and practice. He has also agreed to write more detailed updates for DCI clients on issues that warrant more detailed consideration. Art’s bio can be found below:

Arthur Gutman is professor of psychology and past chair of the I-O graduate program at Florida Tech. He received his Ph.D. from Syracuse University in 1975 and was a National Institute of Mental Health Postdoctoral Fellow from 1975 to 1977 at the University of Colorado, where he collaborated in research with David R. Thomas and Steven F. Maier. He was assistant professor of psychology at Georgia State University from 1977 to 1979 before moving to Florida Tech. His primary teaching interests include statistics and research design, personnel selection, personnel law, program evaluation, and learning and memory. He is author of EEO Law and Personnel Practices (Sage, 2000, 2nd Ed) and originator of “On The Legal Front”, a column on workplace discrimination that appears quarterly in the Industrial-Organizational Psychologist. He has developed employment tests for industry, consulted on at least a dozen adverse impact cases, and has served as an expert witness in federal court.

DCI Consulting Group looks forward to working with Art and his students; keep an eye out for Art’s work on DCI Updates and focal articles on http://ofccp.blogspot.com/.

OFCCP DESCRIBES ENFORCEMENT INITIATIVES IN FY 2011 BUDGET

The U.S. Department of Labor (DOL) released its FY 2011 budget request on February 1, including descriptions of several planned enforcement initiatives for OFCCP. Among the highlights are the following:

• “OFCCP will select two industries and conduct an industry-based establishment compliance evaluation study in FY 2010 to identify a baseline measure of compliance. A random sample of establishments in each industry will be selected for compliance evaluations from each industry. In FY 2013, these establishments will be re-evaluated, depending on the number and type of issues identified. The re-evaluation results will be compared to those of the FY 2010 findings. The difference in compliance outcomes will serve as a comparative measure of OFCCP’s impact on compliance. Ideally, given an appropriate sample size, OFCCP may be able to draw inferences about the state of compliance within the industry in FY 2013. Using this approach, OFCCP will test whether previously evaluated contractors achieve a greater degree in compliance between FY 2010 and FY 2013 than other establishments that were not audited in the random sample. This method provides a measure of recidivism. If this model is successful, OFCCP will identify additional industries for evaluation using this approach in the future.”


• “OFCCP will also conduct a corporate, multi-establishment compliance evaluation approach designed to assess whether OFCCP’s activities within a single corporation leads to increased compliance by the other establishments within the same corporation. Using the Corporate Management Compliance Evaluation list, which uses neutral selection criteria, OFCCP will identify the first eligible corporation on each regional list for a multi-establishment corporate-wide review. A random sample of establishments from each corporation will be drawn for compliance evaluations. One half of the establishments will be scheduled for compliance review in FY 2010; the second half of establishments will be scheduled in FY 2011. Using this approach, OFCCP will measure whether subsequent evaluations result in a higher compliance rate than those of the first group, indicating that OFCCP has had some impact on corporate practice.”


• “Finally, in support of the Department’s goal of ensuring a voice in the workplace, OFCCP will complete at least 10 investigations in individual VEVRAA and disability discrimination cases. OFCCP will broaden its focus to include individual cases of discrimination to ensure that individuals as well as classes are given a fair chance in the workplace. Additional measures will be considered and added as OFCCP is in the process of reviewing and refining its individual complaint investigation procedures.”


• "OFCCP plans to increase compliance among the most persistent and egregious violators. The agency has contracted with an outside consultant to develop and test a statistical model to target violators. The statistical model will be implemented in FY 2011.”


• “OFCCP will broaden its enforcement efforts and focus on identifying and resolving both individual and systemic discrimination… Our review processes will also focus on individual cases of discrimination, including harassment, retaliation, termination, and failure to promote.”


• “The Federal Contractor Compliance Manual will be overhauled. A comprehensive training program and system will be developed to help augment the skill sets of OFCCP’s workforce.”


• “The agency’s scheduling process, the way in which it determines which contractors it will review, will be overhauled. The process for referring cases for litigation will be reengineered.”


• “The agency is recruiting and plans to hire mostly front-line Equal Opportunity Specialists, with a special outreach emphasis on veterans and individuals with disabilities.”


• “OFCCP has committed to resolve, at a minimum, 80 cases of discrimination under E.O. 11246, a seventy-seven percent increase of the FY 2009 goal of 45 cases. These cases will prioritize wage discrimination cases, promotion, and entry level based discrimination. OFCCP will also increase the percentage of compliance evaluations that resolve compensation discrimination. For this measurement, FY 2010 will serve as a baseline year as OFCCP continues to review and refine its compensation discrimination investigative procedures.”

Some of the initiatives listed have been discussed by OFCCP representatives in recent years, while others appear to be significant shifts in the way the agency operates. Contractors should stay tuned to see how these general plans translate into enforcement activities in the coming months.

The full OFCCP report is available on the DOL web site at http://www.dol.gov/dol/budget/2011/PDF/CBJ-2011-V2-04.pdf.

DOL RELEASES OFCCP FY 2009 ENFORCEMENT STATISTICS AND FY 2011 BUDGET DETAILS

The U.S. Department of Labor (DOL) released its FY 2011 budget request on February 1, including FY 2009 performance statistics for OFCCP. Among the highlights are the following:

"In FY 2009, OFCCP entered into financial settlements with 94 contractors for back pay that totaled $9,314,978. The agency's enforcement efforts corrected unlawful employment discrimination for more than 21,839 American workers. OFCCP negotiated settlements that provided 2,249 new job opportunities for affected workers."

This back pay amount is significantly less than the "record-breaking" amount of $67,510,982 in back pay, annualized salary and benefits reported for FY 2008. The budget report explains that the difference is due to a change in how the information is reported, starting this year:

"Annualized salaries associated with these new jobs are not included in the aforementioned $9.3 million in back pay. This change in how the agency reports monetary awards for workers who have been discriminated against will provide transparency. Monetary benefits for affected workers will be reported as workers are actually hired and paid."

Other notable statistics in the report included:

• “As of December 31, 2009, OFCCP transferred/hired 47 employees to conduct ARRA-related compliance evaluations. In addition, OFCCP completed 59 compliance evaluations, resulting in 13 conciliation agreements with one case of compensation discrimination against an African-American male totaling $24,894 in back pay.”


• "the Agency referred 20 cases to the Office of the Solicitor for further enforcement and litigation action"


• "evaluations concluded in conciliation agreements with nearly 700 contractors during FY 2009"


• OFCCP completed 3,917 compliance evaluations, just short of their FY09 goal of 4,160.


• The agency reported 87 complaints investigated/resolved, compared to their FY09 goal of 114.


• OFCCP conducted 1,390 compliance assistance events, far surpassing their target of 800.


• Contractor establishments evaluated included just over 1.8 million employees, which was short of the agency's FY09 target of 3 million workers.

The full OFCCP report is available on the DOL web site at http://www.dol.gov/dol/budget/2011/PDF/CBJ-2011-V2-04.pdf.

CENTER FOR CORPORATE EQUALITY RELEASES OFCCP FY2008 REPORT, CALLS FOR TRANSPARENCY IN OFCCP REPORTING

The Center for Corporate Equality (CCE) has released its annual report summarizing enforcement results developed by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) on their equal employment and affirmative action requirements.

The report, A REVIEW OF OFCCP ENFORCEMENT STATISTICS FOR FISCAL YEAR 2008, offers a detailed analysis of the agency’s fiscal year 2008 enforcement results that resulted in $67,518,982 in back pay and annualized salary and benefits for 24,508 American workers who had been subjected to unlawful employment discrimination. In addition, this report includes a comparison of enforcement results from FY 2007 to FY 2008. The in-depth results of this analysis provide useful information about OFCCP’s enforcement programs that the agency does not make publicly available.

The report is featured in today’s BNA Daily Labor Report® and is available on CCE's website at http://www.cceq.org/.

OFCCP POSTS FAQ'S ON RICCI DECISION

OFCCP has posted a set of questions and answers regarding last year's U.S. Supreme Court decision in Ricci v. DeStefano on the agency's web site. The FAQ section includes:

• A brief synopsis of the Court's decision;
  


• A discussion of how the decision affects OFCCP's procedures during compliance reviews and contractors' affirmative action obligations regarding the use and validation of tests; and
  


• General suggestions for contractors wishing to avoid a situation like the one that occurred in Ricci.

DCI's Dr. Eric Dunleavy co-authored a detailed review of the Ricci decision and its implications in the October 2009 issue of The Industrial-Organizational Psychologist.