WAL-MART PETITIONS FOR SUPREME COURT REVIEW IN DUKES V. WAL-MART

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

Not surprisingly, Wal-Mart has petitioned the Supreme Court to review the 9th Circuit ruling in Dukes v. Wal-Mart, a class action sex discrimination suit in which an en banc panel voted 6-5 to certify a class size estimated to be 500,000. Wal-Mart lawyers argued that the proposed class size is “larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined-making it the largest employment class action in history by several orders of magnitude.” Wal-Mart lawyers also argued that the class includes employees “who held different jobs in different stores in different States under the supervision of different managers.” Counsel for the plaintiffs responded that “A [Supreme Court] review is unwarranted given the well-accepted legal principles on which the class certification is based.” Counsel said “only the size of the case is unusual and that is a product of the size of Wal-Mart and the breadth of the discrimination detected and documented.”

PATRICIA SHIU AND DAVID COHEN ON FEDERAL NEWS RADIO

Patricia Shiu, Director of OFCCP, went on Federal News Radio to discuss the agency's initiatives on pay discrimination. Some of the issues discussed include:

• Rescinding the compensation standards and guidelines
• A new data collection survey different from the EO Survey
• Advanced Notice of Proposed Rule Making (ANPRM) on new compensation standards

Click here to listen to the interview.


David Cohen, President of DCI Consulting Group, also went on Federal News Radio to discuss the OFCCP’s ANPRM regarding changes to Section 503 of the Rehabilitation Act. Some of the issues discussed include:

• Self-identification of disability status at the pre-offer stage
• Quantitative goals for individuals with disabilities
• Preferential treatment in hiring and interviewing for individual with disabilities

Click here to listen to the interview.

DEVELOPMENTS RELATED TO OFCCP AND DIVERSITY DISCUSSED AT WMILG MEETING

by David Morgan & Joanna Colosimo, DCI Consulting Group

William E. Doyle, Jr. at Morgan, Lewis & Bockius LLP presented on recent developments related to OFCCP and diversity at the Washington Metro Industry Liaison Group (WMILG) meeting, on August 26, 2010. Among the topics discussed were the ANPRM to update regulations under Section 503 of the Rehabilitation Act, the new FAR rule requiring reports on subcontractors, recent developments surrounding OFCCP enforcement of non-discrimination with respect to compensation, and Section 342 of the Dodd Frank Wall Street Reform and Consumer Protection Act. Some important highlights are as follows:

ANPRM to update regulations under Section 503 of the Rehabilitation Act

• Contractors should expect a proposed rule next year that requires the establishment of placement goals for individuals with disabilities.
• DOL is particularly interested in public comments regarding data sources that could be used for disability availability statistics.
• The regulation updates may require pre-offer solicitations for voluntary self-identification of disability status.
• Other notable ANPRM comment areas include, but are not limited to: permissible qualification standards, workplace flexibility arrangements, linkage agreements, job-seeker website accessibility standards, and impact on small contractors

FAR rule requiring reports on subcontractors

• The Federal Acquisition Council published an Interim Final Ruling on July 8, 2010, that has flown under the radar in many compliance circles. This Rule will apply to all prime and first-tier subcontractors with a contract of $25,000 or more.
• The rule requires the contractors and first-tier subcontractors to submit the names and total compensation of the five highest compensated executives.
• The rule requires reporting only where 80% or more of a contractor’s or subcontractor’s gross revenues are from federal funds.

OFCCP’s “Plan B” on compensation

• Experts expect that the Paycheck Fairness Act will not be passed, and now the OFCCP is in the process of rescinding the current compensation standards.
• A National Pay Equity Task Force has indicated that the OFCCP will issue new compensation standards without notice or a comment period for contractors and the public.
• It appears that the OFCCP’s new approach may be based on a pay grade or DuBray-type methodology. Experts in systemic compensation discrimination also speculated that the OFCCP may rely on cohort analyses in their new methodology. Furthermore, the OFCCP plans to reinstate the EO Survey.
• Regardless, most of these approaches conflict with statistically and theoretically based principles related to systemic compensation discrimination. It is advised that contractors continue to conduct pro-active compensation analysis based on well-established principles.

New mini-OFCCPs: Offices of Minority and Women inclusion

• Section 342 of the Dodd Frank Wall Street Reform and Consumer Protection Act requires the establishment of Offices of Minority and Women Inclusion for nine Federal agencies (e.g., Treasury, FDIC, SEC, Federal Reserve Banks, etc.).
• Responsibilities of these Offices include developing and implementing standards for evaluating diversity policies and practices of contractors and subcontractors, and establishing procedures for considering diversity as a factor in awarding contracts.
• Although these Offices are not granted the authority to enforce civil rights laws or regulations, they do have the authority to refer contractors or subcontractors to the OFCCP.

JOHNSON & JOHNSON DEFEATS CLASS CERTIFICATION --- A SECOND TIME

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

In Gutierrez v. Johnson & Johnson (2006) [467 F.supp 2d 403], four named plaintiffs sought class certification for approximately 8,600 black or Hispanic employees. The suit originated in 2001, and the class included all permanent salaried exempt and nonexempt positions from 35 operating companies across the country dating back to November 1997. The allegations were discrimination in pay and promotion.

In accordance with Federal Rule 23(a), the requirements for class certification are:

(1) Numerosity: the class is so numerous that joinder of all members is impracticable

(2) Commonality: there are questions of law or fact common to the class

(3) Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class

(4) Adequacy: the representative parties will fairly and adequately protect the interests of the class

Judge William H. Walls of the District of New Jersey ruled that the plaintiffs failed to meet the burdens for commonality, typicality, and adequacy and denied certification.

The 2006 ruling hinged mainly on commonality, which dictated the rulings on typicality and adequacy. Failure to prove commonality was based on three factors: (1) excessive geographical and occupational diversity; (2) failure to identify any specific policies or practices used for pay and promotion decisions; and (3) failure to produce any expert opinion that the policies developed and implemented by the human resources department were excessively subjective. In contrast, defense expert Dr. James L. Outtz examined J&J policies relating to compensation, performance appraisal, and promotion and concluded that they were “not excessively subjective and are consistent with best practices.”

The plaintiffs then revised their class certification claim, and it was rejected by Judge Walls on July 30,2010 [2010 U.S. Dist. Lexis 77123]. In the second motion, the class size was cut in half, but in the words in Judge Walls:

[T]he revised class definition hardly narrows the original class's excessive occupational and geographical diversity. The class would still include "employees from entry-level positions to upper management, working in different capacities for companies operating in different markets," which this Court has already found overly broad. Indeed, the only types of employees excluded from the revised class are employees in non-exempt positions, technicians, sales employees, and high-level managers. (Pls.' Mem. in Supp. of Renewed Mot. for Class Certif. ("Pls.' Br.") 2.) This Court continues to find that plaintiffs have not identified any common policy that could affect a class as sweeping as this proposed one.

Based on Dr. Outtz’s report, the class continued to include biochemists, engineers, research scientists, physicians, lawyers, and computer specialists, among many others" in thirty-five autonomous companies, prompting Judge walls to rule “courts have denied class certification for putative classes far narrower than that proposed by plaintiffs.” Additionally, the practices used for compensation, performance appraisal, and promotion were deemed to contain objective elements, thus negating any claim of excessive subjectivity.

OFCCP PLANS TO RESCIND COMPENSATION STANDARDS

by David Cohen, President, DCI Consulting Group

During the recent National ILG Conference in Las Vegas, OFCCP Director Patricia Shiu announced that the administration would be rescinding the compensation standards and guidelines. The compensation standards and guidelines were released under the Bush Administration on June 16th 2006. For the first time, these standards codified and published OFCCP’s protocol for enforcing systemic compensation discrimination. This published guidance became an invaluable tool for federal contractors because it gave contractors insight into how OFCCP would monitor compliance efforts and identify the tools and understanding needed to proactively recognize and fix potential problem areas. With this knowledge, many contractors took advantage of the ability to “get ahead of the game” by being proactive and conducting analyses to identify “problems” before or in anticipation of an OFCCP compliance evaluation. In addition, it gave the agency’s compliance officers a set of objective standards that function as a roadmap for enforcement; these standards assured that both contractors and the agency were using the same playbook.

Now that the agency has publicly announced the rescinding of its compensation standards, the federal contractor community is once again left with an informational void on how its compensation systems and data will be evaluated. The agency has not announced what its proposed replacement to the standards will be, and it will most likely be months, if not years, before the agency publishes a set of new standards. In the interim, what are federal contractors to do?

It is important to understand the legal framework in which the agency operates before a contractor can make a decision on how to conduct its proactive analyses going forward. OFCCP evaluates compensation discrimination for gender and race/ethnicity under Executive Oder 11246. Under this order, OFCCP follows a Title VII standard for evaluating and enforcing discrimination. Under Title VII, there are two theories of discrimination, disparate treatment and disparate impact. Historically, and as explained in the 2006 compensation standards, the OFCCP evaluates compensation discrimination under a disparate treatment theory. One can think about disparate treatment as having two manifestations: individual treatment and pattern or practice against a class. Both require evidence of intent. Under a pattern or practice theory, the plaintiff/government would have to show that “discrimination was the company’s standard operating procedure, the regular rather than the unusual” (Teamsters v. United States, 1977). That is, merely showing that an employee is currently making less than another employee is not enough evidence to prove discrimination. In order for the OFCCP to prove a case of pay discrimination under this theory, the government would either have to prove that there was a discriminatory pay decision (see Ledbetter) or that there are statistically significant differences (two or more standard deviations) between protected classes in similarly situated employee groupings (SSEG) coupled with anecdotal evidence of discrimination. The anecdotal evidence does not necessarily have to be a “smoking gun”, but should show that either the company intentionally discriminated or that its compensation practices were not consistently applied from one group to another.

OFCCP’s compensation standards are written under a disparate treatment pattern or practice theory of discrimination and not a disparate impact theory. In the preamble to the standards, the OFCCP cites over 30 years of case law and ‘strong statistical principles’ to support its established requirements for demonstrating initial evidence of discrimination. These requirements include:

• Job titles grouped into similarly situated employee groupings (SSEG);



• Statistically significant differences in pay between protected classes after controlling for legitimate and non-discriminatory variables (multiple regression analysis), and;



• Anecdotal evidence of discrimination to bring those statistics to life.

Once the OFCCP establishes the trifecta of evidence, they can move towards enforcement under a disparate treatment pattern or practice case of discrimination. Without those three criteria, OFCCP can move forward with its case only if they find strong evidence of intentional discrimination against a protected class member. This, however, would most likely be an individual treatment case versus a pattern or practice. Without statistical significance and/or evidence of intentional discrimination the OFCCP does not have a case. Why?

Unbeknownst to some in the EEO community, the OFCCP does not enforce the Equal Pay Act (EPA) of 1963. Unlike disparate treatment, the EPA does not require a showing of intentional discrimination. The EPA requires that men and women (race/ethnicity is not covered) in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be ‘substantially equal’. In addition, unlike a pattern or practice case where statistical significance is required, any difference in salary between two people is potentially actionable. This type of analysis may be familiar to many federal contractors who have gone through an OFCCP compliance evaluation in recent years. This type of analysis is commonly referred to by OFCCP as a “cohort analysis”. Simply, the OFCCP looks within a job title and requires justification for situations where a female and/or minority employee is making less than a male or white employee (or vice-versa). Once identified, the OFCCP requires the contractor to articulate a rationale for why this individual has a lower salary than the comparator. However, because the OFCCP does not enforce the EPA, it cannot enforce an EPA violation unless it identifies and proves a discriminatory pay decision. Therefore, without evidence of intentional discrimination the OFCCP cannot move a case to enforcement.

It is worth noting one other presentation from the NILG conference. Shortly after Pat Shiu announced the rescinding of the compensation standards, OFCCP director of statistical analyses, Dr. Javaid Kaiser, presented a workshop entitled “You Conducted your Comp Analysis: Now What?”. During this informative session, Dr. Kaiser talked about conducting a proactive compensation analysis as well as responding to the OFCCP’s secondary compensation data request (a.k.a. the 12 Factor Letter). Dr. Kaiser laid out his best practices strategy for dealing with OFCCP during a compliance evaluation as well as what contractors should do to be proactive. This included the development of similarly situated employee groupings (SSEGs) and multiple regression analysis to control for a majority of the legitimate non-discriminatory variables that drive pay. If statistical indicators are identified and the contractor cannot explain those differences, the contractor should look to take remedial action.

This sound advice is exactly what is called for in the 2006 compensation standards and guidelines. The only thing missing from his presentation was the identification of anecdotal evidence. With the continued recommendation from OFCCP to develop SSEGs and conduct multiple regression analysis, contractors must wonder what it is that OFCCP is actually rescinding. Is it the requirement to obtain and demonstrate anecdotal evidence? Although not necessarily required under Title VII, case law suggests that judges are very skeptical of statistical evidence absent the anecdotal evidence that brings the statistics to life in a pattern or practice case. It is difficult to understand how OFCCP could ignore this requirement and still move to enforcement.

With the impending rescission of the compensation standards, what should contractors do? It is important to note that, regardless of the status of the standards, OFCCP is still bound by the requirements of Title VII and relevant case law. Therefore, if OFCCP chooses to litigate and refers the matter for enforcement to the Solicitor of Labor’s Office (SOL, i.e., OFCCP’s attorneys) the SOL will have to rely on case law (most of which endorses SSEG development and multiple regression analysis) in order to litigate. With that in mind, it is likely a best practice strategy for contractors to “stay the course” and continue to conduct their proactive compensation analyses (under attorney-client privilege) using SSEGs and multiple regression analysis. This is the most effective way to identify and eliminate systemic discrimination in an organization, and is based on sound scientific and legal theory. In the meantime, it will be anybody’s guess on how OFCCP will evaluate and determine meaningful disparities in compliance reviews until new guidance and standards are published.

I close this post with one final parting thought in light of recent EEO trends. Consider the following scenario. An OFCCP compliance officer conducts a compliance evaluation of a contractor’s compensation data and uses an arbitrary 2% (or $2,000) difference threshold to identify a “significant difference”, or uses a cohort analysis to identify individuals who are making less than a single comparator. OFCCP then requires the contractor to explain the identified difference. The contractor attempts to explain the difference but the OFCCP does not accept the stated reason. OFCCP moves to a Notice of Violation and recommends salary adjustments for the identified individuals. The contractor signs the conciliation agreement and makes the requested adjustment.

The settlement is picked up by the press and both male and white employees read about the adjustments in the local paper. Feeling left out, both male and white employees who feel underpaid question the settlement and file a ‘reverse’ discrimination claim against the contractor that they were intentionally discriminated against in pay based on their race or sex because their salaries were not adjusted. Consider the fact that the salary adjustments may have been made:

• Solely on the basis of race and sex (see 14th Amendment – Equal Protection Clause);



• In spite of the fact that there was no established manifest imbalance (see Johnson v. Transportation Agency), and;



• In spite of the fact that there was no strong basis in evidence of discrimination (i.e., no compelling evidence of actual disparities) (see Ricci v. Destafano and Rudebusch v. Hughes).

How would the judge rule? Making the requested adjustments under no real standard of enforcement could be a clear case of discrimination against group members that did not benefit from the pay adjustments.

SOURCES FOR RECRUITING INDIVIDUALS WITH A DISABILITY

by Keli Wilson, Senior Consultant, DCI Consulting Group

OFCCP oversees Federal contractors compliance with Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). With the new administration and new director of OFCCP, Patricia Shiu, comes renewed focus on the recruitment of individuals with a disability and covered veterans. The pressure is on for federal contractors to show more proof of good faith efforts made towards the outreach and recruitment of individuals with a disability and covered veterans.

To address this increased interest to requirements that have been around for some time, DCI Consulting wanted to provide some useful information and websites on recruiting practices. For those companies trying to increase outreach for individuals with a disability, the following free service may be beneficial: http://www.earnworks.com/employers/tools/index.asp. This website provides several resources that will help companies improve the selection and retention process for individuals with a disability.

Additionally, there is a referral service provided by the Office of Disability Employment Policy (ODEP) called the Employer Assistance and Resource Network (EARN) that assists employers in outreach efforts to locate qualified individuals with a disability. More information on this service can be found at the following website: http://www.dol.gov/odep/programs/earn.htm.

IS A CREDIT CHECK A ‘TEST’? SOME EMPLOYMENT TESTING LESSONS LEARNED FROM NILG

by Eric Dunleavy, Ph.D., Senior Consultant, DCI Consulting Group

Earlier this month, OFCCP staff presented on a variety of EEO topics of interest to federal contractors at the National Industry Liaison Group (NILG) Conference. DCI staff attended an informative session from Dr. Richard Fischer, OFCCP Director of Testing Operations. The presentation was entitled ‘Enforcing Test Discrimination: Lessons Learned’, and there were a number of useful suggestions for navigating the landscape of employee selection in legally defensible ways.

One topic that caused some confusion concerned what types of employment processes fall into the category of ‘a test’ that can be challenged under an adverse impact theory of discrimination. Dr. Fischer’s handout defined a test as ‘any practice, method, procedure, process, device, etc. in any format (online, written, performance, etc.), used to assess candidates for a high stakes decision.’ This definition is generally consistent with the Uniform Guidelines on Employee Selection Procures (UGESP), which are the federal regulations on adverse impact measurement and methods for demonstrating that a selection procedure is job-related and legally defensible.

However, another handout noted that ‘Selection steps such as an employer reference check, medical or drug screening, criminal background check, credit check, verifying work history or investigation for a security clearance are not tests and need not be assessed for adverse impact.’

This language caused some confusion about what steps in a selection process could be challenged by the agency under an adverse impact theory. Although in many situations the processes listed above are implemented post job offer, they could still produce substantial adverse impact against protected groups and affect overall applicant-to-hire adverse impact results. Some companies may implement similar steps pre-offer.

Regardless, the status of credit checks and similar tools has important implications for federal contractor compliance. Obviously, if the selection steps above are not of interest to OFCCP, there would be no need to conduct step analyses on the consequences of these tools. Further, if the selection steps above are not of interest to OFCCP, it would be reasonable to remove applicants that are eliminated at those steps from the overall applicant-to-hire adverse impact analysis, as opposed to considering those applicants as rejected. Interestingly, the status of applicants who failed credit checks was an issue of contention in the recent Administrative Law Judge ruling in favor of OFCCP against Bank of America. That ALJ ruled that those applicants who failed a credit check should be included in the adverse impact analyses.

This decision to not assess the adverse impact or job-relatedness of credit checks and similar tools was a surprise to DCI staff, because it was our understanding that courts and enforcement agencies have treated these types of tools as selection procedures that can be challenged under the UGESP. In fact, EEOC released an informal letter on credit checks in March 2010, reiterating that credit checks can be challenged under adverse impact theory, often have adverse impact against minority applicants, and may not be job-related for many jobs. The adverse impact and job-relatedness of credit checks and other screening tools were also an agenda topic at a commission meeting in 2007.

To clarify the status of credit checks and similar tools in EEO analyses, DCI staff communicated with senior officials at DOL. DOL officials stated that this was a typo on the handout and confirmed that credit checks, drug screens, background investigations, and the other tools listed above may be considered selection procedures under UGESP, and may be challenged by OFCCP if they produce adverse impact against a protected group. Thus, it may be reasonable to include applicants who failed a credit check in the adverse impact analyses, and a step analysis is in the realm of possibility.

There were a number of useful takeaways from Dr. Fischer’s presentation, including the following:

- In the last 2 fiscal years, 44% of the tests reviewed by OFCCP experts were deemed discriminatory by the agency, either because there was no validity research, inadequate validity research, or because reasonable alternatives were available.

- The percentage of discriminatory tests has dropped since 2005

- In Fiscal Year 2009, 8% of OFCCP’s financial remedies collected in systemic discrimination cases came from testing cases.

- If an OFCCP audit focuses on a test that produces adverse impact, the agency does not need a copy of the test. Dr. Fischer was clear that the actual test is not useful for evaluating the validity of a test, and that the research showing the job-relatedness of the test is of primary interest to the agency.

- Interestingly, Dr. Fischer noted that there is no formal need for a bottom line adverse impact analysis to be statistically significant for the agency to focus on steps. Compliance officers may ask about steps in the selection process, and for selection step data, regardless of whether applicant-to-hire analyses show a statistically significant disparity. If any of those steps have impact, the contractor would be burdened with demonstrating job-relatedness.

- OFCCP experts have seen too much emphasis on face validity (i.e., that the test content looks like it is job related without any actual research) and not enough emphasis on actual validity research (evidence supporting that employers can make good inferences and decisions from tests).

- The Supreme Court ruling in Ricci v. Destefano has no direct implications for OFCCP enforcement, adverse impact analyses, the UGESP, or employment testing.

UNITED STATES V. CITY OF NEW YORK: A REPLAY WITH A QUESTIONABLE OUTCOME

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

In US v. City of New York (2009) [F. Supp. 2d 419], Judge Nicholas G. Garufis of the District Court for the Eastern District of New York evaluated an entry-level firefighter test based on five criteria for content validity established by the 2nd Circuit in Guardians v. Civil Service (1980) [630 F.2d 79] and found the test invalid based on all five criteria. These criteria are:

(1) suitable job analysis
(2) reasonable competence in test construction
(3) test content related to job content
(4) test content representative of job content
(5) scoring systems selecting applicants that are better job performers.

This ruling captured the attention of a wide audience because it was decided shortly after the Supreme Court’s ruling in Ricci v. DeStefano (2009), which Judge Garaufis found not applicable to the case. Indeed, Judge Garaufis wrote:

I reference Ricci not because the Supreme Court’s ruling controls the outcome in this case; to the contrary, I mention Ricci precisely to point out that it does not. In Ricci, the City of New Haven had set aside the results of a promotional examination, and the Supreme Court confronted the narrow issue of whether New Haven could defend a violation of Title VII’s disparate treatment provision by asserting that its challenged employment action was an attempt to comply with Title VII’s disparate impact provision.… In contrast, this case presents the entirely separate question of whether Plaintiffs have shown that the City’s use of Exams 7029 and 2043 has actually had a disparate impact upon black and Hispanic applicants for positions as entry-level firefighters. Ricci did not confront that issue

Based on the judge’s ruling, the fire department went back to the drawing board and developed a new test. On August 4, 2010, Judge Garufis ruled that the first criterion (suitable job analysis) was satisfied, but the other four criteria were not [see 2010 U.S. Dist. LEXIS 78641]. Two experts, one internal and one external, conducted an extensive job analysis, and based on the results, created a new exam written by incumbent firefighter subject matter experts (SMEs) under the direction of the internal expert. The main problems, as cited by the judge, were that the SMEs were not experts at test construction, and the final test, was deemed lacking by independent firefighter SMEs who examined the final product.

There are two other issues worth noting. First, the alpha coefficient for internal consistency for the entire test exceeded .90, but as depicted in this table, 12 of the 18 components had coefficients of less than .50. However, one could argue it is difficult to obtain high alphas when the number of items is low, and that the one component with a substantial number of items (perceptual speed) had an alpha coefficient of .95.

Second, and perhaps more importantly, Judge Garaufis invoked Section 1607.14C(1) of the Uniform Guidelines, which states:

A selection procedure based upon inferences about mental processes cannot be supported solely or primarily on the basis of content validity. Thus, a content strategy is not appropriate for demonstrating the validity of selection procedures which purport to measure traits or constructs, such as intelligence, aptitude, personality, commonsense, judgment, leadership, and spatial ability.

Based on this Guideline, the Judge concluded:

Here, it is clear that Exam 6019 seeks to measure abstract, unobservable mental constructs such as Flexibility of Closure, Speed of Closure, and Problem Sensitivity, as well as personality characteristics like Integrity, Adaptability, Tenacity, Work Standards, and Resilience. These are precisely the sort of "traits or constructs" that render an exam unfit for content-based validation. The City's exclusive reliance on a content validation approach necessarily means that it has failed to demonstrate that the content of Exam 6019 is related to the content of the job of entry-level firefighter.

This part of the ruling is strange (at least to me). The guidance in Section 1607.14C(1) was actually struck down in Guardians v. CSC (1980) itself, and in virtually all subsequent cases employing a content valid strategy for defending a test.

Don’t get me wrong --- I think the judge hit on two critical issues: failure to use expert test writers and failure to find agreement by independent SMEs. However, I think the manner in which he assessed reliability and incorporated ancient guidelines that have been struck down in many courts is questionable.

DOL CONTRACTS WITH FIRM TO ASSESS EXISTING AFFIRMATIVE ACTION POLICIES FOR PEOPLE WITH DISABILITIES AND DISABLED VETERANS

by David Morgan, Consultant, DCI Consulting Group

The US Department of Labor’s Office of Disability Employment Policy (ODEP) has made available two reports on affirmative action, applicable to individuals with disabilities and disabled veterans, in the federal contractor sector.

The agency states on its website that “as part of its mission, ODEP contracted with Economic Systems Inc. to assess existing affirmative action policies applicable to people with disabilities and disabled veterans. Specifically, the policies set out in the regulations implementing Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) were evaluated to determine whether and how Federal contractor affirmative action programs might be modernized as part of a comprehensive strategy to reduce barriers to employment and eliminate earnings gaps.”

The reports are categorized into two volumes. Volume I discusses data sources and models in terms of extending quantitative analyses and placement goal methodologies, to cover individuals with disabilities. Volume II discusses and provides recommendations for modernizing affirmative action provisions. Some general conclusions and recommendations within the reports, geared toward strengthening and modernizing the affirmative action provisions of Section 503 regulations, include:

• Developing a specific affirmative action policy to provide qualified individuals with disabilities meaningful employment opportunity, at all levels of employment


• Developing a specific policy prescribing the purpose of affirmative action programs— management tools designed to ensure equal employment opportunity programs, which include quantitative analyses and placement goals; a system of specific, immediate, realizable, and action-oriented steps; and accountability mechanisms that allow for continuous improvement


• Modifying the invitation to self-identify at the pre-offer of employment stage to increase employment opportunities for people with disabilities


• Implementing regulations that include a separate component for outreach and recruitment (i.e., distinguishing external dissemination, from outreach and recruitment)


• Adding a new component for accessible and usable electronic and information technology

Report Volumes I and II, as well as an Executive Summary of the research firm’s findings and conclusions, can be found on the firm’s website, under Areas of Expertise/Affirmative Action. Those who plan on submitting comments regarding OFCCP’s Advanced Notice of Proposed Rulemaking (ANPRM) on Updating AAP Requirements for People with Disabilities (published in the Federal Register on July 23, 2010), are encouraged to read the ODEP-funded reports. As mentioned in a previous entry, all public comments must be received by September 21, 2010.