A pair of recent OFCCP settlements shed additional light on some important items that should be of concern to all covered Federal contractors:
1) Follow up on all findings of potential adverse impact, especially in the hiring process.
Adverse impact analyses allow employers to see if any selection process adversely affects, or unfairly favors, a class of individuals based on their race or gender. Adverse impact in the hiring process is the most common cause of on-site OFCCP investigations and accounts for well over 90% of OFCCP’s financial remedies.
OFCCP’s recent settlements with Tyson Refrigerated Processed Meats and Coca-Cola Bottling Company Consolidated both resulted from inequities in the hiring process that were found to be discriminatory.
If your AAP reports reveal adverse impact, the first step should be to ensure you are performing the analysis on only those candidates who meet the OFCCP’s definition of Internet applicant. The inclusion of unqualified job candidates can skew the results of the analysis and show adverse impact. If time and resources permit, you may want to perform a “steps analysis” to pinpoint when adverse impact is occurring. This type of analysis looks at each step of the hiring process to see if potential discrimination may be occurring (for example, the resume screen stage, the phone screen stage or the interview stage).
You will want to be particularly vigilant if your organization uses tests as part of the screening process. If tests result in adverse impact to any group, the OFCCP will expect that the test has been previously validated.
2) Look out for discrimination against “non-protected classes”
While OFCCP certainly has a history of pursuing “reverse-discrimination” cases, their focus in this area has been increasing over the last several years. Whites and males are not typically considered members of a “protected class,” yet they are still afforded protection under EEO and Affirmative Action laws that prohibit discrimination on the basis of race and gender – no matter what your race or gender happens to be.
On several recent occasions, OFCCP officials have mentioned that they will be going after discrimination “wherever it occurs.” This claim has been proven in the Tyson settlement which “found that African-American and Caucasian applicants were less likely to be hired than similarly situated Hispanic applicants over a two-year period.”
Examine your adverse impact analyses with this in mind. If it appears that whites or males are statistically disfavored, investigate these findings the same way you would if it was adverse impact against minorities or women. This means reviewing the candidates’ disposition codes, applications and other selection documentation to ensure that no discrimination is occurring.