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Chapter 3 — On-Site Review
TABLE OF CONTENTS
FIGURES
3-1 I-9 FORM
3-2 ESA FORM 91
3-3 VETS 100
3-4 SAMPLE LINKAGE LETTER
3-5 NOTICE OF REVIEW COMPLETION FORMAT, NO DEFICIENCIES FOUND (SUPPLY AND SERVICE)
3-6 [RESERVED]
3-7 [RESERVED]
3-8 PREDETERMINATION NOTICE FORMAT
3-9 NOTICE OF VIOLATIONS FORMAT
Revised 5-25-90
APPENDICES
3A-1 STANDARD COMPLIANCE REVIEW REPORT (SCRR) — POTENTIAL DISCRIMINATION WORKSHEETS
3A-2 SCRR POTENTIAL DISCRIMINATION WORKSHEET INSTRUCTIONS
3B PREGNANCY DISCRIMINATION ACT
3C CASE FILE FORMAT FOR SUPPLY AND SERVICE COMPLIANCE REVIEWS
INDEX
CHAPTER 3 — ONSITE REVIEW PROCEDURES
3A PURPOSE
3A00 GENERAL
- Contents: This Chapter describes the procedures to be followed when conducting the onsite phase of compliance reviews of supply and service contractors covered by Executive Order 11246, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212), and Section 503 of the Rehabilitation Act of 1973, as amended. It is a guide to how EOSs should conduct onsite compliance investigations as well as how to prepare an investigative report and summary of the findings. The onsite procedures described in this Chapter, as well as the desk audit procedures described in Chapter 2, follow the Standard Compliance Review Report (SCRR). Appendix A to Chapter 2 contains the parts of the SCRR covering desk audit, analysis of affirmative action programs (AAPs), and identification of potential employment discrimination. Appendix A to this Chapter contains the SCRR employment discrimination worksheets and instructions.
- Onsite Review Not Always Required: An onsite is not required in all instances. An onsite review is not required: (1) where the material submitted by the contractor does not demonstrate a reasonable effort to meet the requirements of 41 CFR Part 60-2; or (2) where the affirmative action program is determined to be acceptable at desk audit, an onsite review has been conducted within the preceding 24 months, and the circumstances of the previous onsite review have not substantially changed.
- Multiple AAP Requests: If the review extends beyond the expiration date of the AAP originally submitted, no additional AAPs will be requested. However, the EOS will ensure that the contractor incorporates any corrective actions required as a result of the review in the original AAP, and will obtain the contractor's commitment to update the current and future AAPs in accordance with these corrective actions. The resulting Conciliation Agreement or Letter of Commitment should also contain, in addition to any other reporting requirements, a requirement that the contractor submit those portions of the current AAP which were to be corrected or updated as a result of the compliance review findings.
3A01 ONSITE BACKGROUND
- Purposes of Onsite: The major purposes of the onsite phase of the compliance review are to investigate potential problem areas identified at desk audit, to verify the contractor's implementation of its AAPs, and to begin to resolve violations.
- Problems Identified at Desk Audit: Problems identified at the desk audit which require further investigation onsite will usually fall into three basic categories. These are:
- Good Faith Efforts: Questions of good faith effort resulting from the contractor's failure to meet goals where there were opportunities, and the AAP and support data do not show adequate efforts (SCRR page 11).
- Potential Employment Discrimination: Questions of potential individual or systemic discrimination (SCRR page 17) which are identified through:
- Impact Ratio Analyses (IRAs) of the contractor's personnel activity that are adverse;
- Concentrations/underrepresentations identified through review of the contractor's EEO-1 or EEO-6, workforce analysis, and utilization analysis;
- Questionable policies and practices;
- Reports from the Equal Employment Opportunity Commission (EEOC) on complaints filed against the contractor and anecdotal information from employees and community sources;
- Follow-up on problems identified in previous compliance reviews; and
- Medical standards which could tend to screen out qualified individuals with disabilities.
- AAP and Technical Requirements: Problems with the AAP(s), as well as verification of compliance with technical and other non-AAP requirements. Examples of these include: review of the invitation to self-identify, determinations of contractor compliance with the terms of a prior Conciliation Agreement or Letter of Commitment, inspection of I-9s, and verification that the VETS 100 Report has been filed.
3B NOTICE OF ONSITE REVIEW
3B00 PREPARATION — NOTICE OF ONSITE REVIEW
As noted at the end of Chapter 2 (Desk Audit), near the end of the desk audit or after it is completed, the EOS will have contacted the contractor by telephone to discuss the information which the EOS would like to have at the beginning of the onsite. This provides the contractor with lead time to locate the information. It also allows the EOS to determine whether the information is available and in what form. During the conversation, the contractor was told that its I-9 forms would be inspected. A letter confirming this phone conversation, including formal notice of I-9 inspection and the time and date of the onsite, will have been sent to reach the contractor at least three days prior to the onsite. This letter, as well as all other correspondence with the contractor, is signed by the AOD/FOD or his/her designee. This letter included a list of materials which the contractor should make available at the start of the onsite.
3B01 LIST OF MATERIALS
As also noted at the end of Chapter 2, the list of materials included with the letter confirming the onsite review will have included the following types of information:
- Materials Related to Desk Audit Findings: Items related to specific preliminary findings made during the desk audit will have been requested. This may have included personnel files, applications, resumes, contractor adverse impact determinations, and related material to be made available for inspection. Where the EOS identified specific managers for interviews, these individuals may have been identified.
- Materials Not Included in Original Submission: Items which may not have been included in the original AAP and support data submission will have been requested. This may have included copies of employment advertisements, labor agreements, position descriptions, policy manuals, and the names of employees and applicants identified as individuals with disabilities, special disabled veterans and veterans of the Vietnam Era along with a notation of any accommodations made for the named individuals. Where desk audit salary data were coded, the contractor would have been asked to supply the key to the codes onsite. Also, the list will have specifically referenced the need for inspection of I-9 forms and the VETS 100 Report.
3C PREAWARDS
A preaward review covers only the contractor's compliance with the Executive Order. However, if the preaward review is converted to a postaward review, its scope is the same as that of a regularly scheduled review--i.e. it must cover the contractor's compliance with Section 503 and 38 U.S.C. 4212 as well as with the Executive Order. Further guidance on preaward reviews and revised preaward procedures will be provided at a later date.
3D INFORMATION COLLECTION
3D00 CASE FILE DOCUMENTATION
If the information obtained by the EOS is to be useful, it must be reduced to writing. The EOS' findings and conclusions must be documented in the case file. For each potential problem identified, the case file will contain a clearly labeled packet of back-up material which supports review findings on that problem. This will consist of, as applicable, all EOS notes, worksheets, contractor data and any other material relating to the problem.
3D01 CONTRACTOR FILES
During the onsite, applications and personnel files are among the main sources of written documentation. Labor agreements, policy and compensation manuals, company newsletters, posted job opening announcements, etc., are also important documents to review. Pertinent information to be included in the case file must be either photocopied, transcribed, or summarized. If it is summarized, the EOS must describe the document in detail and describe how it was summarized. Also, the EOS must ensure that his or her writing is legible. Photocopied data are preferred. Under the regulations, contractors are obliged to provide access to their books, records, and accounts for the purpose of determining compliance (41 CFR 60-1.43; 60-250.53; 60-741.53). If a contractor objects to providing photocopying facilities, the EOS should offer to remove the data offsite for photocopying, assuring the contractor that the original will be returned. If the contractor objects on grounds of relevancy to making the requested data available, the EOS shall inform the contractor that the contractor can request a ruling from the Area Office Director, in accordance with the procedures described in 41 CFR 60-60.4 (c). In the meantime, the information under dispute must be available to the EOS offsite.
3D02 VISUAL INFORMATION
While onsite, the EOS should visually confirm the posting of EEO posters, policy statements, invitations for self-identification, and notice of the location and hours of availability of the 4212/
503 AAPs. This is usually done during the facility inspection, which should also include visual observation of areas where minorities, women, and/or individuals with disabilities or special disabled veterans are/are not working at the facility, and the working conditions associated with those areas. As noted in 3C03 below, the facility inspection may also include informal interviews.
3D03 INTERVIEW INFORMATION
Interviews may be conducted either informally (for example, during the facility inspection) or formally (for example, in a scheduled meeting with a structured list of questions). Also, as the onsite proceeds, there will be continuing discussions between the EOS and contractor personnel. The content of these discussions, as it relates to compliance matters, should be documented in writing as soon as possible. It is a good practice for the EOS to review his/her notes with the contractor to ensure they accurately reflect the contractor's statements (see (d) below).
- Reasons for Interviewing: Interviews should be conducted with some identified purpose or goal. Reasons for interviews may include: gaining understanding of contractor policies and procedures, obtaining general information, corroborating information received from other sources and identifying additional areas for investigation. Also, interviews may give interviewees an opportunity to present problems or issues of concern to them.
- Interview Plan: The EOS should plan questions and target interviews to particular compliance issues. Planning is required to ensure that questions are appropriate, and that, when the interviews are complete, the EOS will have enough information to make a decision on whether to pursue an issue.
- Contractor's Presence at Interviews: When the EOS conducts onsite interviews with non-management personnel, the contractor does not have the right to have a representative present. When interviews are conducted with management personnel, the contractor may have an attorney or other representative present except when the manager is not speaking for management, as when the manager is the complainant or a member of a potential affected class speaking about his/her personal experience.
- Formal Interviews: Each person who is formally interviewed should be asked to read, sign and date the interview notes. The EOS should enter the following phrase above the space where the interviewee will sign: "I have read the above and it is true." At the conclusion of the interview, the EOS should review the questions asked and the answers given, and obtain confirmation that a direct quote is accurate, or that a paraphrase conveys the intended meaning. If the interviewee refuses to sign the notes, this should be recorded. The reason(s) for refusal to sign should also be noted.
- Location of Interviews: Interviews are normally conducted onsite during the compliance review. However, there may be situations when a contractor refuses to allow onsite interviews of non-managerial employees. Where possible the EOS should attempt to explore alternatives with the contractor, such as conducting interviews during meal breaks. Other options might include interviewing employees onsite prior to the start of work shifts, or at their conclusion. Interviews also may be conducted offsite.
- Telephone Interviews: Telephone interviews should be conducted only when it is not feasible to conduct the interview in person, because the EOS cannot observe the interviewee's demeanor during a telephone interview, which makes evaluation of the interviewee's credibility more difficult. However, where telephone interviews of employees or applicants are necessary, the resultant notes should be typed and a copy sent to the interviewee(s) for review, revisions as appropriate, and signature.
3E ONSITE ORIENTATION
3E00 PROBLEM IDENTIFICATION
In general, the problems to be investigated will be noted on the SCRR summary sheets (SCRR pages 9, 11, 13, 17, and optional page 18 when used). The degree to which these sheets were completed at desk audit depends on the quality and quantity of the data that the contractor submitted for desk audit. If the quality of those data was too poor to permit completion of the desk audit portion of the SCRR, and the decision is made to go onsite, then the initial task onsite will be to complete the desk audit portions of the SCRR. See Chapter 2 for information on completing the initial portions of the SCRR.
3E01 ENTRANCE CONFERENCE
The onsite review typically begins with an entrance conference with the chief executive officer of the facility or his/her representative(s). The entrance conference is intended to provide information to the chief executive officer and explain the purposes of the compliance review. These include a general summary of the contractor's obligations under the programs administered by OFCCP, a description of the scope of the onsite plan, the length of time that the EOS anticipates being onsite, information needed while onsite, and the need to conduct employee interviews. The entrance conference should also include an explanation of the I-9 inspection procedure and requirements. The conference provides an opportunity for the EOS to evaluate top management's attitude toward equal employment opportunity and affirmative action. During the conference the EOS should either establish the date and time for the exit conference (see Section 3S below), or inform the chief executive officer of the need to meet again at the end of the onsite.
3E02 PRELIMINARY INTERVIEWS
Following the entrance conference, the EOS should meet with key facility personnel who are knowledgeable about the contractor's personnel policies and practices. During these preliminary interviews, the EOS should clarify any questions he or she may have such as ones regarding the organization, structure, corporate culture, and other personnel issues raised during the desk audit. The E0S will use page 8 of the SCRR (Organization of Contractor's Workforce and Review of Personnel Practices), as a guide for this discussion. The EOS will complete any missing items on page 8 at this time. This is the EOS' opportunity to become more familiar with the contractor's informal policies and practices, and to relate these to written materials and practices outlined in the AAP.
3E03 COMPLIANCE WITH PRIOR CONCILIATION AGREEMENTS/LETTERS OF COMMITMENT
The onsite investigation will include review of the contractor's compliance with the terms of prior Conciliation Agreements or Letters of Commitment. Compliance with the commitments will be discussed with contractor personnel during the onsite, and documentation of continued compliance obtained. If the contractor is found to be in noncompliance with some or all of the commitments agreed upon as a result of the prior compliance review, refer to Chapter 8 for the procedures to be followed.
3E04 FACILITY INSPECTION
The facility inspection is an opportunity for the EOS to evaluate the working conditions in departments or other organizational units identified during the desk audit as concentrated or underrepresented, to view the kind of work performed in different job titles, to evaluate the accessibility of the personnel process to applicants with mobility impairments, to conduct brief, informal interviews with employees, and to obtain more information about the history of the facility and the work performed there. Notes should be taken during the inspection. A report summarizing information obtained may be helpful depending on the issues raised or resolved.
3E05 TECHNICAL REQUIREMENTS
The EOS' onsite plan includes a list of technical items for which compliance will be verified onsite. These are verified in the course of performing other steps in the review rather than all at once. For example, the required posting of notices is observed during the tour of the facility. See optional SCRR page entitled "Technical Requirements Worksheet" and its accompanying instructions for a complete list of these requirements.
3F I-9 INSPECTION
The EOS' onsite plan includes the visual inspection of the INS Immigration and Naturalization Service) Forms I-9 maintained by the contractor. The results of this inspection are reported on Form ESA-91 (Figure 3-2). The EOS should follow current instructions in this inspection and reporting its results. Further guidance will be provided in this area in the near future.
3G EXECUTIVE ORDER AAP REQUIREMENTS
This section discusses (1) follow-up on problems with the written Executive Order AAP and support data submitted for desk audit; (2) implementation of non-goal AAP requirements; (3) investigation of good faith effort with respect to goals.
3G00 WRITTEN AAP AND SUPPORT DATA SUBMISSIONS
- Written Requirements: During the desk audit, the AAP(s) and support data are examined to determine whether all required elements are included (completeness), whether the Executive Order AAP is reasonable, and whether the AAP(s) and support data are acceptable. Any problems in these areas are reported on page 9 of the SCRR. The EOS also records for each item on page 9 the actions planned to resolve each problem identified. The problems that cannot be resolved at desk audit are checked for onsite resolution. The EOS will review page 9 and identify the AAP and data problems remaining to be resolved onsite.
- Resolution of Deficiencies: Unresolved AAP deficiencies may be briefly mentioned during the entrance conference. However, a detailed explanation of what aspects of the program were found to be unacceptable and why should be discussed with the individual(s) charged with developing and maintaining the program. AAP deficiencies range from those which result in the issuance of a show cause notice (e.g., workforce analysis and utilization analysis) to those which are minor technical deficiencies (e.g., failure to have an official of the contractor sign the program). The EOS should identify appropriate corrective action for those deficiencies confirmed during the onsite investigation by the time of the exit conference (see Section 3S below). Deficiencies/violations that will be included in a Letter of Commitment or a Conciliation Agreement must first be included in a Notice of Violations. This Notice is mailed to the contractor at the conclusion of the review, by certified mail with return receipt requested (see Section 3T below).
3G01 IMPLEMENTATION OF NON-GOAL AAP REQUIREMENTS (41 CFR 60-2.13)
The onsite investigation must include an assessment of the contractor's implementation of its AAP. The regulations at 41 CFR 60-2.15 require that a contractor's compliance be judged on a review of the contents of its program, the extent of its adherence to the program, and its good faith efforts to make the program work. The regulations at 41 CFR 60-2.20 through 60-2.26 provide guidance in evaluating contractor compliance with the specific requirements of 41 CFR 60-2.13. In evaluating contractor compliance with 41 CFR 60-2.13, the EOS must be prepared not only to identify problem areas, but also to specify what corrective action will be necessary to bring the contractor into compliance.
- Policy Statement; 41 CFR 60-2.13(a): This Section requires that the contractor develop or reaffirm its equal employment opportunity policy in all personnel actions. The desk audit of the AAP will indicate whether the contractor's policy is included therein. 41 CFR 60-2.20 provides guidance in evaluating the contents of the policy. The policy should be signed. The date of signature and the name and title of the person signing the policy should be noted. The EOS should compare this to the posted copies of the policy during the facility inspection. In addition to the development or reaffirmation of the EEO policy, implementation of that policy by the contractor in all personnel actions can be evaluated by the EOS' onsite review of personnel activities.
- Dissemination of Policy; 41 CFR 60-2.13(b): The contractor's AAP must include internal and external dissemination of its policy. An AAP typically includes some description or listing of how the contractor's EEO policy is disseminated. The contents of the listing often follow the provisions under 41 CFR 60-2.21. In investigating compliance with this requirement, the EOS should request that written documentation, such as copies of letters to recruitment sources, trade organizations, suppliers, etc., be provided for verification. These letters may either describe the policy or serve as cover letters to copies of the policy. They may also contain other information relevant to assessing the contractor's overall compliance status.
During the facility inspection the EOS should identify the locations where copies of the policy are posted, and determine whether these are dated, what dates are shown, if these are signed, and if so, by whom. An out-of-date policy statement, or one signed by an executive no longer at that facility, suggests a lack of commitment to EEO which may also become evident in other areas. In interviews with supervisors and employees, the EOS should determine whether the EEO policy has been explained and whether supervisors understand their responsibility for carrying out the policy.
- Responsibility for Implementation; 41 CFR 60-2.13(c): This Section requires that the contractor establish responsibility for the implementation of its affirmative action program. A typical AAP will identify an individual or individuals responsible for its implementation, and will often include a list of the types of actions to be taken by responsible individual(s). The person appointed should be an executive of the contractor who has the authority and resources to ensure that the AAP is implemented. The EOS should obtain a copy of the responsible official's position description to ensure that it includes implementation of the AAP. The EOS should also discuss with the responsible official or officials how specific provisions of the AAP are implemented. Compare the responses obtained to the listing in the AAP, where given, or to the provisions of 41 CFR 60-2.22. Look for discrepancies among what officials report, what the AAP outlines, and what the regulations recommend. The EOS should evaluate the adequacy of the contractor's implementation and recommend corrective action as needed. 41 CFR 60-2.22 provides detailed guidance on evaluating compliance with this requirement.
- Problem Areas By Organizational Units; 41 CFR 60-2.13(d): In reviewing and evaluating the contractor's identification of problem areas by organizational unit, the EOS should follow the guidance provided by 41 CFR 60-2.23. This analysis goes beyond the utilization analysis conducted pursuant to 41 CFR 60-2.11. The intent here is to analyze where women and minorities are located within the organization rather than the more limited analyses based on job groups and availability. The organizational unit analysis is based primarily on the workforce analysis. The contractor should have identified concentrations and absences of minorities and women in any department, section, line of progression, or other organizational structure it uses. Low utilization may be traced to a problem in low applicant flow. Concentrations may result from placement problems. These problems must be identified in the AAP. Corrective action includes a requirement to correct the problems and to conduct ongoing internal reviews. The Job Area Acceptance Range (JAAR) may be helpful in analyzing whether the contractor has identified all concentrations and underrepresentations. See the optional SCRR worksheet and instructions in Appendix 3A to this Chapter.
- Goals by Organizational Unit; 41 CFR 60-2.13(e): Having identified problem areas (deficiencies) by organizational unit, the contractor must under 41 CFR 60-2.13(e) establish goals and objectives to eliminate these problems. Organizational goals and objectives, however, are not the same as numerical goals for job groups. Rather, they are such things as changes in policies and procedures that will correct the identified problem. While onsite, the EOS will determine whether the organizational goals and objectives set by the contractor are sufficient to actually correct the identified problems or are merely a reproduction of the contents of 41 CFR 60-2.23.
- Establishment of Action-Oriented Programs Designed to Eliminate Problems and to Attain Established Goals and Objectives; 41 CFR 60-2.13(f): 41 CFR 60-2.24 provides standards which the EOS can use to assess the contractor's compliance with this requirement. As with a number of the other required ingredients of AAPs, documentation of the contractor's compliance with this requirement will often be obtained when investigating other issues during the onsite. For example, in requesting copies of position descriptions for the analysis of adverse IRAs, or the investigation of placement practices, the EOS can determine how recently they have been reviewed, and if they are accurate and/or consistently applied. If problem areas are identified during the desk audit or onsite and the contractor has not taken adequate steps to correct these problems, including the development and implementation of action-oriented programs, then corrective action must be required. The EOS' ability to assess problems and offer possible solutions depends upon his/her knowledge of community resources available, the capabilities of the contractor, and the magnitude of the problem(s). The EOS should assess what progress is being made toward correction of the identified problem areas.
- Internal Audit and Reporting Systems; 41 CFR 60-2.13(g): The contractor is required to design and implement internal audit and reporting systems which measure the effectiveness of the total AAP. Beginning with the desk audit, the EOS is evaluating the contractor's internal audit and reporting systems. If the contractor is unable to provide information when requested, or is unable to provide it in a usable form, this should suggest that its audit and reporting systems may be inadequate. The EOS should question the contractor and request evidence regarding how it reports the results of internal EEO and AA audits. Does the contractor prepare written reports, other than the AAP? If so, how often are they required; who prepares them; who reads them; what else, if anything, is done with them? These are all questions which impact on compliance with the audit and reporting requirement. Documentation, in the form of copies of reports, or copies of minutes of meetings, should be requested.
- Compliance with Sex Discrimination Guidelines; 41 CFR 60-2.13(h): The contractor's compliance with each required item under 41 CFR Part 60-20 must be addressed. For many requirements, compliance can be assessed during desk audit. For example, the AAP may include a copy of an employment advertisement with the EEO tag line which would demonstrate compliance with the requirement that the contractor recruit employees of both sexes for all jobs, except where bona fide occupational qualifications are involved. Where such information is not in the AAP, it must be verified onsite. Other compliance issues must be evaluated during the onsite, even though compliance may be asserted in the AAP. This would include, for example, the requirement that there be no distinction in wages based on sex. This can also be verified as personnel files are reviewed for other reasons, such as while investigating adverse IRAs in personnel activity.
- Maternity Leave/Pregnancy Discrimination Act: In 1978 Congress passed the Pregnancy Discrimination Act (PDA), Pub. L. 95-555 (codified at 42 U.S.C. 2000e(k)), as an amendment to Title VII (See Appendix 3B to this Chapter for the text of the Act.). The PDA provides that,
". . . women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . ."
- OFCCP Maternity Leave Regulations: The PDA is not coextensive with the OFCCP regulations at 41 CFR 60-20.3(g). For instance, the PDA requires that a woman affected by pregnancy be treated the same as other persons similarly affected in their ability or inability to work; by contrast 41 CFR 60-20.3(g) states that a contractor must always provide a reasonable period of leave to a woman affected by childbirth. The passage of the PDA raised questions as to the continued viability of those portions of the OFCCP regulations which go beyond the PDA (i.e. require more of contractors than does the PDA). These questions were complicated by the Supreme Court's recent decision in California Federal Savings and Loan Association v. Guerra, 42 FEP Cases 1073 (1987), and have not been finally resolved. Accordingly, guidance on the application of those portions of the regulations (including the application of 41 CFR 60-20.3(g)(2)) is reserved at this time. However, consistent with the PDA, 41 CFR 60-1.4(a), and the EEOC Guidelines on Discrimination Because of Sex, OFCCP shall implement the following policies:
- If a contractor has a sick leave or disability leave policy (written or unwritten), leave (including but not limited to eligibility for leave, duration of leave, accrual of seniority and reinstatement rights) for conditions associated with childbirth shall be treated the same as leave for disabilities related to other medical conditions; and
- If the contractor's leave policy, or lack thereof, has an adverse impact on employees of one sex and is not justified by business necessity, it violates the Executive Order.
- Fringe Benefits: The Sex Discrimination Guidelines provide that an employer will not be considered to have violated the Guidelines if his contributions for fringe benefits are the same for men and women or if the resulting benefits are equal. Subsequently, the Supreme Court has held that under Title VII an employer must provide both equal contributions and equal benefits to men and women. Arizona Governing Committee v. Norris, 463 U.S. 1073, 32 EPD Para. 32,696 (1983); City of Los Angeles v. Manhart, 435 U.S. 702, 16 EPD Para. 8250 (1978). OFCCP's policy is to interpret the nondiscrimination provisions of the Executive Order consistent with Title VII principles. Consequently, if the EOS becomes aware of a situation where a contractor is either not paying equal fringe benefits and/or not making equal contributions to fringe benefits for men and women, the matter should be brought to the attention of RSOL.
- Sexual Harassment: Although not specifically mentioned in the Guidelines, sexual harassment (as well as harassment on the basis of race, national origin or religion) is a violation of the nondiscrimination provisions of the Executive Order. During the onsite, the EOS should be alert for any indications of such harassment. OFCCP follows Title VII principles when determining whether sexual harassment has occurred. Further guidance in this area will be issued.
- Support of Local Groups; 41 CFR 60-2.13(i):
- General: This Section requires that the AAP contain evidence of the contractor's active support of local and national community action and community service programs designed to improve the employment opportunities of minorities and women. Suggested criteria which may be used to evaluate the contractor's compliance with this requirement are found at 41 CFR 60-2.26. In some instances compliance can be determined at the desk audit. Often, however, contractor support of community action programs, like the development and execution of action-oriented programs, is either absent from the AAP in any specific detail, or has not been updated. The EOS should ensure that the contractor's support is current.
- Documentation: The EOS should obtain documentation of the contractor's support of community action and service programs. If copies of checks, advertisements in brochures, or letters confirming the donation of equipment, the participation of company employees, etc., are not included in the AAP, they should be requested during the onsite. Where the contractor can provide little or no evidence of support of such programs, the EOS should identify suitable programs and appropriate means of support as corrective actions. Evaluation of compliance with this requirement, and a decision to cite the contractor, requires professional judgment by the EOS. Assessing the contractor's compliance in this area is similar to assessing compliance with the requirement to develop and execute action-oriented programs.
- Consideration of Women and Minorities Not Currently in the Workforce; 41 CFR 60-2.13(j): The AAP must include consideration of minorities and women not currently in the workforce having requisite skills who can be recruited through affirmative action measures. This means that, among other things, the contractor should utilize, as recruitment sources, agencies such as those which train and place in employment displaced homemakers, individuals in rehabilitation programs, and other individuals who, for one reason or another, have been out of the workforce. The EOS should ask for documentation that the contractor participates in or requests employment referrals from such agencies. In addition, the contractor may also have taken action, such as establishing part-time, job-sharing, or flex-time programs, establishing onsite day care programs, etc., to attract and retain in employment skilled individuals who would otherwise be excluded from gainful employment.
3G02 INVESTIGATION OF GOOD FAITH EFFORTS
- SCRR: During the desk audit the EOS completes page 10 of the SCRR (Analysis of Affirmative Action Progress), and records any goal areas requiring further information on good faith efforts on page 11 (Evaluation of Good Faith Effort). If there was insufficient information at desk audit to complete page 10, the EOS should complete it onsite.
- Onsite Investigation: The purpose of the onsite investigation of good faith efforts is to evaluate whether the contractor has developed and implemented plans and objectives that are likely to be effective in correcting underutilization. Good faith efforts consist of more than merely following the same procedures which are not producing results. During the desk audit the EOS evaluated the contractor's past goal attainment and progress on meeting current goals, and identified any goal areas requiring further evaluation of good faith efforts on SCRR page 11. Part of the onsite investigation is for the EOS to follow up on the areas identified on page 11.
- Verification of Good Faith Efforts: Depending on the quality of the AAP submitted for desk audit, the contractor may have provided information about its good faith efforts. Evaluation of the contractor's good faith efforts requires verification of that information onsite. The EOS must also obtain information about additional good faith efforts the contractor may have made. To make informed judgments about the quality of the contractor's good faith efforts, the EOS must be familiar with local community resources which can assist contractors in resolving employment problems.
- Good Faith Efforts - Internal Placements: For internal placements, good faith may include the contractor's efforts to:
- Disseminate information about internal opportunities (Are job openings posted? If so where, when, how long, and for which jobs or classes of jobs?);
- Provide training opportunities (including apprenticeship programs, on-the-job training, tuition reimbursement);
- Provide counseling and encouragement to minority/female employees to apply for internal openings;
- Recruit externally into feeder job groups; and/or
- Review selection criteria and selection procedures with responsible officials and managers to ensure that they are familiar with the contractor's EEO policies, that the selection criteria are applied in a nondiscriminatory manner, and that the selection criteria do not have a discriminatory impact.
- Good Faith Efforts - External Placements: For external placement opportunities, investigation of the contractor's good faith efforts may include:
- Whether, when, and how the contractor uses the recruitment sources for minorities and women listed in its AAP;
- Whether the contractor uses other recruitment sources for minorities and women not listed in its AAP;
- The contractor's use of publications (or other media) which target minorities and women, where these are available, and how employment openings are advertised; and
- Whether the contractor recruits at high schools, colleges, and universities which enroll large numbers of minorities and women.
- Applicant Flow Records: These may provide useful documentation about the effectiveness of the contractor's good faith efforts, as can internal bid lists or sign up sheets for posted job openings.
- Audit of Employment Activity: An essential part of the contractor's demonstration of good faith is that it audits its employment activity to ensure progress toward meeting its goals. If the contractor has no auditing procedures, this is a definite indication of lack of good faith efforts.
- Verification/Documentation: The EOS should document his/her evaluation of a contractor's good faith efforts by including in the case file copies of correspondence, job orders, bid lists for posted job openings, contractor recruiting manuals, relevant pages from labor agreements, employee manuals, summaries of conversations and interviews with contractor representatives, recruitment source contacts, minorities and women, and other employees. The EOS must verify compliance by contacting at least some of the organizations listed in the AAP to confirm contractor contact.
- Linkage: Linkage is the process of connecting contractors with appropriate recruitment and/or training sources. When the contractor is underutilized and there are recruitment/training resources that are able to assist the contractor, the EOS will attempt to execute a linkage agreement with the contractor. See Section 3J of this Chapter for a complete explanation of linkages.
3H COMPLIANCE WITH GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION OR NATIONAL ORIGIN - 41 CFR PART 60-50
3H00 GENERAL
Although the AAP need not include a reference to compliance with 41 CFR Part 60-50, contractor compliance with this Part is required and must be investigated during the onsite phase of the review. The contractor's policy statement should be read to see if it includes reference to nondiscrimination and affirmative action based on religion and national origin, as well as on other covered group status. See Section 3H03 below for a discussion of implementation of nondiscrimination on the basis of religion and national origin.
3H01 EMPLOYMENT PRACTICES — AFFIRMATIVE ACTION
The regulations at 41 CFR 60-50.2(b) provide that the contractor must review its employment practices to determine whether members of the various religions and/or ethnic groups are receiving fair consideration for job opportunities. If the contractor concludes as a result of its review that a problem exists with respect to any religious or ethnic group, then the contractor is required to undertake appropriate outreach and positive recruitment activities. The EOS will ask the contractor whether a review of its employment practices has been conducted for this purpose, and if so, when, how, and if the review was documented. In making this assessment, the EOS should keep in mind that the scope of the contractor's efforts depends on a review of all circumstances, including the nature and extent of identified deficiencies, as well as the size and resources of the contractor. If the contractor has not undertaken such a review, the contractor will be cited for the violation. If the review was undertaken, verify its results and the sufficiency of any corrective actions implemented by the contractor. Summarize the results of the investigation on page 12 of the SCRR.
3H02 REASONABLE ACCOMMODATION
Section 41 CFR 60-50.3 requires the contractor to accommodate the religious observances and practices of its employees and prospective employees unless it can demonstrate that it is unable to reasonably accommodate a particular practice or observance with out undue hardship on the conduct of its business. In interpreting the extent of the contractor's obligation to make reasonable accommodation on religious grounds,* OFCCP will follow Title VII principles. Further guidance on religious accommodation will be issued. The EOS should ask the contractor whether and how it has made accommodation to the religious observances and practices of its employees. If the contractor professes not to know of any specific accommodations made, the EOS should review procedures available for evaluating such requests. Also, in reviewing employee files, the EOS should be alert for any pattern of terminations based on refusal to work on the Sabbath or to work overtime on certain days based on religious observances.
3H03 POTENTIAL RELIGIOUS/ETHNIC EMPLOYMENT DISCRIMINATION
When conducting interviews, reviewing employee listings, applicant flow logs, applications, or personnel files, the EOS should make an attempt to identify individuals as covered group persons based on religion or national origin. If the EOS suspects a problem (e.g., there appear to be a significant number of applicants of Middle Eastern descent, but few or none are hired; or there appear to be a significant number of employees of a particular religious or ethnic group, but few or none in management), the potential problem should be investigated. In investigating such potential discrimination, the EOS should apply the guidance given in Sections 3K through 3Q of this Chapter. Where the investigation identifies issues peculiar to religious or national origin discrimination that are not covered in 41 CFR Part 60-50 or in Sections 3K through 3Q, OFCCP will follow Title VII principles. Also see Chapter 7, Section 7E10, for a discussion of discrimination based on manner of speaking or accent related to national origin.
3H04 COMMUNITY CONTACTS
As part of the onsite, or during the desk audit, the EOS may wish to identify organizations representing the interests of various nationalities or religious groups located in the labor area serving the contractor's facility. The EOS may find it useful to contact such groups for information about possible employment problems experienced by their members who have applied for employment with the contractor.
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*It should be noted that Title VII standards on religious accommodation are not the same as those for accommodation under Section 503 of the Rehabilitation Act.
3I 503/4212 COMPLIANCE
3I00 INVITATION TO SELF-IDENTIFICATION
- General Requirements: Sections 41 CFR 60-250.5(d) and 41 CFR 60-741.5(c)(1) require that covered contractors invite all applicants for employment and all employees to identify themselves as individuals with disabilities, special disabled veterans, or veterans of the Vietnam era. The invitation must state that the information is provided voluntarily, that it will be kept confidential, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with the Act(s) and the regulations at 41 CFR Part 60-250 or 41 CFR Part 60-741. The contractor should also seek advice from persons so identifying themselves regarding proper placement and appropriate accommodation. Has the contractor invited employees and applicants to self-identify? Has the contractor sought advice on appropriate placement and accommodation? How? When? What were the results? A copy of the invitation should be obtained if it was not provided in the AAP(s).
- Results of the Invitation: Is the contractor able to identify individuals with disabilities, special disabled veterans, and/or veterans of the Vietnam era in its workforce or members of these groups who terminated since the start of the prior AAP year? What was the source of the information for the contractor?
- Identified Individuals: For each of the foregoing persons, or a sample thereof, identified as having a disability (special disabled veteran or Vietnam era veteran) the EOS should ask the contractor to describe the individual's disability and any accommodations made to that disability.
- Review of Applications: EOSs should review application forms for compliance with the regulations. For example, a request on an employment application for information on disabilities, or for status as a Vietnam era veteran, constitutes an invitation to self-identification and must comply with the requirements of 41 CFR 60-250.5(d) and 41 CFR 60-741.5(c)(1) (i.e., it must state that the information is provided voluntarily, etc.). If the request does not comply with these requirements, it is not acceptable and must be changed.
- Evaluation of Accessibility: The EOS' report (see SCRR, page 13b) should include an evaluation of the accessibility of the personnel process to individuals with disabilities (particularly those with mobility impairments) as well as specific examples of individual accommodations made by the contractor. Where the personnel process is found to be inaccessible to individuals with disabilities or special disabled veterans, corrective action may include having a site survey done to determine what steps can be taken to improve accessibility.
- Compliance with the Listing Requirement: Contractors covered by the regulations at 41 CFR Part 60-250 are required to list all "suitable employment openings" (as defined at 41 CFR 60-250.4(h)) with the appropriate local office of the State Employment Service (SES). The EOS will have contacted the local SES office prior to the onsite and requested confirmation that the contractor has listed its employment openings with that office. Wherever possible, the EOS should obtain from SES a listing of the job orders placed by the contractor, by job title and date. The EOS should then compare the SES list with a list of jobs the contractor has filled through new hire, identify any such jobs not listed, and determine whether they should have been listed given the regulatory definition of "suitable employment openings (above)."
3I01 AAP COMPLIANCE (SECTIONS 503/4212)
Covered contractors are required to prepare, maintain, and update on an annual basis, AAP(s) covering individuals with disabilities, special disabled veterans, and veterans of the Vietnam era. The regulations at 41 CFR 60-250.6 and 41 CFR 60-741.6 describe the required contents of such programs. The EOS, having reviewed the contractor's 38 U.S.C. 4212 and Section 503 AAP(s) for acceptability during the desk audit, must investigate the contractor's implementation of those requirements. Problems found with various elements of the AAP(s) should have been reported on page 4 of the SCRR and explained on page 9. Problems listed on these pages which were not resolved by the conclusion of desk audit need to be resolved onsite. In addition, page 13 of the SCRR on implementation of the 503/4212 requirements must be completed.
- Proper Consideration of Qualifications: 41 CFR 60-250.6(b) and 41 CFR 60-741.6(b) require that contractors review their personnel processes to determine whether present procedures assure careful, thorough, and systematic consideration of the job qualifications of known individuals with disabilities, special disabled veterans, and veterans of the Vietnam era for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available.
- Personnel Processes Reviewed: Does the contractor's AAP state that personnel processes are reviewed to ensure that the job qualifications of individuals with disabilities and covered veterans are considered? How is this done? What documentation can be provided?
- Use of Procedures in Appendices: Does the AAP state that the procedures in Appendices B (41 CFR Part 60-250) and/or C (41 CFR Part 60-741) are utilized (e.g., personnel files annotated regarding consideration for opportunities)? Review applications and personnel files of individuals with disabilities and covered veterans for implementation.
- Use of Relevant Portions of Military Service Record: Under the requirements of 41 CFR 60-250.6(b), a contractor must consider only that portion of a covered veteran's military record which is relevant to the job for which the veteran is being considered. In addition to being addressed in the AAP, the EOS must determine how the military records of applicants (including discharge information) are used by the contractor. Is military service or discharge information requested on applications? If so, does the information requested conform to this requirement? How is the information used?
- Adequacy of Present Procedures: Does the contractor assert that present procedures are adequate? If so, can the contractor demonstrate that individuals with disabilities and covered veterans are afforded hire and promotional opportunities?
- Physical and Mental Qualifications: Contractors are required by 41 CFR 60-250.6(c)(1) and 41 CFR 60-741.6(c)(1) to provide in their AAP(s) (and to adhere to) a schedule for the review of all physical and mental job qualification requirements to insure that, to the extent qualifications tend to screen out qualified individuals with disabilities or covered veterans, they are job related and are consistent with business necessity and the safe performance of the job.
- Purpose of Review: The purpose of such a review is to eliminate those physical and mental job qualification requirements which tend to screen out qualified individuals with disabilities or special disabled veterans and which are neither job related nor consistent with business necessity and safe performance of the job.
- No Review Conducted: Where no review has been conducted, the schedule must provide for a review of all physical and mental job qualification requirements.
- Past Review: Where a review has been conducted in the past, the schedule in the AAP should indicate this. It should also state that subsequent reviews of physical and mental job qualification requirements will occur as working conditions change. Increased automation in the work place, for example, can trigger a need to review job qualification requirements. Some contractors do conduct a review of all job qualification requirements on a regularly scheduled basis. This may be true, for example, for jobs in the blue collar sector, which may be reviewed in accordance with labor agreement negotiations.
- Continuing Review: Job qualification requirements may be reviewed on a continuing basis (e.g., as jobs come open), often as part of the process of confirming and/or updating their duties, skills and experience required, and compensation.
- Confirming Results of Review: Where a contractor states that a review has been conducted, the EOS should ask for copies of position descriptions from both the blue and white collar sectors (including, for the latter, positions covered by the overtime provisions of the Fair Labor Standards Act and those which are not, usually referred to as "non-exempt" and "exempt" positions, respectively).
- The EOS should determine when the descriptions were written or last updated.
- Are there qualification requirements which would tend to screen out qualified individuals with disabilities or special disabled veterans?
- Are they required by business necessity or safety?
- Positions Without Written Descriptions: The EOS should obtain the contractor's explanation for how job qualification requirements are reviewed for positions which do not have written descriptions.
- Failure to Review: If, after review of position descriptions and discussion with the contractor, the EOS determines that the contractor has not reviewed all physical and mental job qualification requirements, the extent of the contractor's noncompliance should be identified (e.g., has no review been conducted, or have only certain positions undergone review), and corrective action steps developed.
- Qualification Which Would Tend to Screen Out Qualified Individuals With Disabilities or Special Disabled Veterans and Which Are Not Required by Business Necessity or Safety: If the EOS identifies any qualifications which would tend to screen out qualified individuals with disabilities or special disabled veterans and which are not required by business necessity or safety, corrective action steps should be developed and the EOS should identify any individuals with disabilities or special disabled veterans who were improperly screened out and seek appropriate make whole relief for such individuals.
- Pre-Employment Medical Examinations: Contractors are permitted by 41 CFR 60-250.6(c)(3) and 41 CFR 60-741.6(c)(3) to conduct comprehensive medical examinations prior to employment. The results of such examinations, however, may be used only in accordance with the requirements of the regulations.
- Are Examinations Conducted: The EOS must determine whether or not the contractor conducts such examinations (or otherwise inquires into an applicant's physical or mental condition prior to employment).
- Use of Information: If pre-employment physical examinations or inquiries are conducted, the EOS must determine what use is made of the information obtained.
- Persons who make placement decisions based on medical information should be interviewed.
- The EOS should ask the contractor for the names of persons, if any, who, as the result of a medical examination, were placed in different positions from those for which they originally applied. These individuals should be interviewed if appropriate.
- The EOS should ask the contractor when in the hiring process the medical examination is conducted. Is it given to all applicants or only to those referred? If the latter, anyone disqualified by the examination was presumably disqualified because of the examination.
- In reviewing the applications of unsuccessful applicants, the EOS should determine whether the contractor has refused employment to persons who have undergone medical examinations. The EOS should request the medical information as well as the application form, since the basis for rejection might not be apparent from review of the applications alone.
- The EOS should make special note of any applications showing possible disabilities or medical conditions likely to have affected employment (e.g., back injuries, epilepsy). The EOS should request, review, and evaluate the reasons given for failure to hire.
- Confidentiality Requirement: Whenever a contractor inquires into an applicant's or employee's physical or mental condition or conducts a medical examination prior to employment, or change in employment status, information obtained as a result should be kept confidential, except it may be made available to supervisors and managers, first aid and safety personnel, and Government officials investigating compliance with the Act(s). The EOS should make an assessment of acceptability of the contractor's system for maintaining confidentiality of medical information.
- Drug and/or Alcohol Screening: Discussion of drug and/or alcohol screening is reserved for future guidance.
- Accommodations to Physical and Mental Limitations of Employees: Contractors are required by 41 CFR 60-250.6(d) and 41 CFR 60-741.6(d) to make reasonable accommodation to the physical and mental limitations of individuals with disabilities and special disabled veterans, unless the contractor can demonstrate that such accommodation would impose an undue hardship on the conduct of its business. This obligation exists regardless of whether the applicant or employee has responded to an invitation to self-identify, if the contractor knew of the individual's disability. In determining the extent to which a contractor is obligated to make accommodations (i.e., whether an undue hardship would be created), such factors as business necessity and financial costs and expenses may be considered. In addition to work place modifications, actions such as the provision of part-time work, flexible hours, changes in job duties or transfer/return to light-duty jobs, as well as the construction of ramps, lowered work tables, etc., when take on behalf of specific individuals with disabilities or special disabled veterans, constitute accommodations.
- Interview Individuals with Disabilities and Special Disabled Veterans: The EOS should interview individuals identified as disabled, including not only those identified by the contractor, but also individuals whom the EOS may observe during the facility inspection, to determine what, if any, efforts have been made by the contractor to provide reasonable accommodations. The EOS should obtain a description of any accommodations made (or needed).
- Additional Accommodations: Where additional accommodations are determined to be necessary, they should be discussed with the contractor. Where the EOS is aware of financial incentives available which may offset some or all of the costs of accommodations, the contractor should be provided with this information. Accommodations are not required in those situations where an individual with a disability is qualified without the need for accommodations.
- Post-Hire Disabilities: The EOS may find that accommodations involve employees who have become disabled or acquired a disability after employment. The degree of severity of a disability or disability may also change over time. Guidance on job reassignment as an accommodation is presently reserved but will be provided in the future.
- Report of Results: The EOS' onsite report should recap the results of the investigation of the contractor's compliance with the accommodation requirements (See SCRR, page 13b).
- Compensation: The AAP must affirm that, in offering employment or promotion to individuals with disabilities, special disabled veterans, or veterans of the Vietnam era, the amount of compensation offered is not reduced due to their receipt of any disability income, pension or other benefit received from another source. To verify compliance with this requirement, the EOS can request the files of identified individuals with disabilities and/or special disabled veterans, along with those of persons without disabilities in the same job titles, and compare their compensation.
- Outreach, Positive Recruitment, and External Dissemination of Policy: The AAP(s) must affirm that the contractor reviews its employment practices, and must describe the appropriate outreach and recruitment activities undertaken as a result of such reviews. The EOS must verify during the onsite: (1) that the contractor has reviewed its employment practices; and (2) that it has, as a result of such review, actually engaged in outreach and positive recruitment activities.
- Implementation of Affirmative Action Obligations: The regulations at 41 CFR 60-250.6(f) and 41 CFR 60-741.6(f) provide guidance for the EOS in evaluating the contractor's outreach and positive recruitment activities. The EOS should be prepared to draw conclusions as to the adequacy of those efforts, and to document the conclusions with specific examples.
- Relationship to Linkage: Outreach and positive recruitment may also include linkage. Linkage for individuals covered by the provisions of 38 U.S.C. 4212 or by Section 503 of the Rehabilitation Act of 1973, as amended, should be considered when review of applications and/or applicant flow logs indicates there are few or no applicants who are individuals with disabilities, Vietnam era and/or special disabled veterans, and the contractor has failed to identify and/or monitor applications from such persons, or the contractor has no effective outreach and recruitment program. The EOS should be prepared to refer the contractor to groups which serve individuals with disabilities, Vietnam era and/or special disabled veterans (see Section 3J01).
- Internal Dissemination of Policy: The AAP must address the contractor's procedures for internal dissemination of its affirmative action policy. Sections 41 CFR 60-250.6(g) and 60-741.6(g) describe ways in which contractors may accomplish this objective. The methods used by the contractor to disseminate its policy must be set out in its AAP(s). The EOS must verify that these measures are actually implemented while onsite. The EOS should obtain documentation and verify through interviews that the meetings have taken place and the policies discussed thoroughly. An evaluation, of the adequacy of the contractor's efforts to disseminate its policy internally should be made in the onsite report, reported on page 13a of the SCRR, and supported by documentation reviewed. The effectiveness of the contractor's methods of internal dissemination can also be evaluated, in part, from the participation of individuals with disabilities, special disabled veterans, and veterans of the Vietnam era in promotions and in training programs.
- Responsibility for Implementation: The EOS should obtain documentation of the contractor's compliance with the requirements regarding the establishment of responsibility for implementation of its program. The regulations at 41 CFR 60-250.6(h) and 41 CFR 60-741.6(h) should be used in evaluating the contractor's efforts to comply. The contractor must appoint an executive to serve as director or manager of the company affirmative action activities. That individual should be interviewed. The interview should identify the specific responsibilities and authority assigned to that individual, determine how those responsibilities are carried out, and how performance is assessed. Documentation, such as a copy of the individual's position description, or copies of reports prepared, should be obtained.
- Development and Execution of Action Programs: The contractor is required to develop and execute action-oriented programs. The extent of a contractor's efforts in this regard will depend on the results of its review of its employment practices. If the written AAP is detailed, the EOS should review the specific actions described in the AAP with contractor personnel. Documentation for those actions where a written record is said to be maintained should be obtained. The EOS should schedule interviews with employees, particularly those identified as individuals with disabilities, special disabled veterans, or veterans of the Vietnam era, to determine if such programs have affected their employment with the contractor.
- Evaluation and Documentation: In assessing the adequacy of the contractor's specific action-oriented programs, the EOS should be guided by the regulations at 41 CFR 60-250.6(i) and 41 CFR 60-741.6(i). While all of the elements in these regulations are not required, they do provide a means by which the contractor's efforts to comply with its affirmative action and equal employment opportunity obligations can be evaluated. The EOS should determine what the contractor has done and document the case file accordingly.
- Work Place Modifications: Work place modifications, such as ramps, specially-marked parking spaces, lowered work tables, etc., may be considered action steps which a contractor can take in meeting its obligations under the regulations to take affirmative action, conduct positive outreach and recruitment, and implement action-oriented programs. In addition, such modifications made on behalf of specific individuals may be considered accommodations.
- Sheltered Workshops: Contractors may not substitute con-tracts with sheltered workshops for their own affirmative action efforts. Where the sheltered workshop trains employees for the contractor and the contractor is obligated to hire the trainees, such relationships may be included in the contractor's AAP(s).
3I02 AVAILABILITY OF THE AAP(s) FOR INSPECTION
41 CFR 60-250.5(c) and 41 CFR 60-741.5(d) require that the contractor post in a conspicuous place, available to both employees and applicants for employment, a notice which states that the 38 U.S.C. 4212 and Section 503 AAP(s) is available for inspection to any employee or applicant for employment, upon request. The notice must include the location and hours during which the program may be obtained (e.g., "the AAP is available in the personnel office during regular business hours"). The EOS must determine whether such a notice is posted and if it meets the requirements of the regulations. The EOS should address this in the onsite report.
3I03 COMPLIANCE WITH THE VETS 100 REPORT
Each contractor covered by the requirements of 41 CFR Part 60-250 must report, at least annually, the number of special disabled veterans and the number of veterans of the Vietnam era in its workforce, by job category and hiring location. The contractor must also report the total number of new employees, special disabled veterans and veterans of the Vietnam era, hired during the period covered by the report. The report is to be submitted to the Office of the Assistant Secretary for Veterans' Employment and Training no later than March 31 of each year, on the form titled "Federal Contractor Veterans' Employment Report (VETS 100)." See Figure 3-3. The EOS will determine whether the required report was submitted in a timely manner. Compliance with this requirement will be recorded as part of the onsite report. Non-compliance will be cited as a deficiency in compliance review closure documents.
3J LINKAGE
3J00 LINKAGE UNDER EXECUTIVE ORDER AAPs
- Linkage Requirement: As a routine part of a compliance review, EOSs are required to make community contacts to determine whether contractors have made good faith efforts towards achieving their affirmative action objectives. In order to make this good faith determination, the EOS must have knowledge of the resources available in the community that can provide assistance to contractors in resolving employment deficiencies. Linkage involves OFCCP efforts to facilitate and encourage working relationships between contractors and community recruitment resources.
- Linkage Goals:
- To increase employment opportunities available to minorities, women, individuals with disabilities, and Vietnam era and special disabled veterans;
- To enhance the effectiveness of OFCCP's compliance activities by providing EOSs with additional recruitment sources which may be recommended to contractors;
- To assist Federal contractors in meeting their affirmative action hiring and promotion goals; and
- To increase cooperation between private sector employers and community recruitment resources.
- Where Linkage Is Required: Linkage is the successful outcome of a process wherein Federal contractors agree to contact recruitment/referral sources which are likely prospects for helping the employer acquire applicants from the covered groups. Such efforts will be made with contractors who are undergoing compliance reviews, the findings of which reveal that the contractor has made insufficient good faith efforts at generating appropriate applicants to meet affirmative action needs. Before contractors are urged to use such resources, those organizations will be contacted to affirm that they may be of assistance.
- Implementation of Linkage: Where linkage is required, the following actions will be taken by all EOSs to establish linkage during the normal course of a compliance review:
- The EOS will identify those job groups in the contractor's workforce where goals were established and there was employment activity, but the goals were not met.
- The EOS will evaluate the contractor's good faith efforts to identify possible sources for minorities and women for those underutilized job groups where there was activity and the goals were not met.
- The EOS will contact all appropriate linkage resources to obtain specific information on availability of applicants and potential trainees for positions in the areas of underutilization. If possible, the EOS will arrange a meeting between the recruitment/referral resources and the contractor.
- Where a resource indicates that it can provide applicants or trainees, the EOS will include the contractor's commitment to utilize the linkage source along with other actions in the Letter of Commitment or in the Conciliation Agreement.
- Semiannual progress reports will be required under Conciliation Agreements and/or Letters of Commitments. These reports will contain:
- Total hire activity by job group, broken out by sex, race, and other covered group status; and
- Total hire activity and number of persons referred for each linkage source agreed to in the Conciliation Agreement or Letter of Commitment, broken out by sex, race, and other covered group status.
- Where Linkage Is Not Required: Regardless of recruitment sources being used, if a contractor's utilization approximates availability for a given job group, then availability of minorities/women would not appear to be a problem and the EOS is not required to propose any linkage activity. Linkage is also not required if, after community resource files are reviewed and appropriate contacts are made with potential recruitment/referral sources, those sources indicate that they are unable to provide assistance.
3J01 LINKAGE FOR INDIVIDUALS WITH DISABILITIES AND COVERED VETERANS
- When Linkage Is Required: Linkage involving recruitment/referral sources for individuals with disabilities, Vietnam era veterans, and special disabled veterans is necessary when (1) review of employee records, applications and/or applicant flow logs shows that there are few or no employees or applicants who are members of these covered groups (this is usually coupled with failure to identify and/or monitor applicants from these groups) or (2) there are few such applicants and there is no effective outreach and recruitment for persons from these groups.
- Resolution Documents: Linkage effected for individuals with disabilities and covered veterans will be included in a Conciliation Agreement or Letter of Commitment, as appropriate.
3J02 CONFIRMATION LETTER
At the conclusion of the review, the EOS will send a letter to the linkage sources notifying them of the agreement with the contractor. A copy will be sent to the contractor. Also, a copy of the letter will be maintained in the case file. See Figure 3-4 for a sample letter.
3J03 VOLUNTARY (INFORMAL) LINKAGE
EOSs should discuss with the contractor any appropriate recruitment/referral sources that the contractor is not utilizing even though a linkage is not required.
3K EMPLOYMENT DISCRIMINATION — GENERAL
3K00 INTRODUCTION
- Material Covered: This Section concerns investigative techniques for employment discrimination. It concentrates on the processes used onsite to gather relevant facts and how to analyze those facts to determine whether they prove discrimination. The theoretical bases for the discrimination proofs are covered in Chapter 7. The SCRR Potential Discrimination Worksheets and their instructions, which are designed to illustrate the investigative process discussed in this Chapter, are provided in Appendix 3A. Remedies are described in Chapter 7.
- Applicability: The remainder of this Chapter is primarily applicable to identifying employment discrimination in selections under Executive Order 11246. The techniques discussed apply to discrimination based on minority status (as defined in (d) below), sex, and, where data are available and discrimination suspected, can be applied to discrimination in selections based on religion or national origin (see Section 3H03). While some of the techniques can be used in cases based on disability or covered veterans status, these cases generally do not involve quantitative analysis and often do involve unique issues--such as whether a person meets the statutory definition of "disability," or the contractor's obligation to make reasonable accommodation--that are beyond the scope of this Chapter (see Chapter 6). Also note that use of the phrase "members of a minority group and women" is used as a shorthand term and is not meant to imply that other groups such as nonminority/males are not protected from employment discrimination.
- Title VII Principles: It is OFCCP policy, in conducting analyses of potential discrimination under the Executive Order, to follow Title VII principles.
- Use of Term Minorities: Minorities are those minority groups for whom EEO-1 reporting is required--i.e. Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/ Alaskan Natives. As used in onsite analysis of potential discrimination issues, minorities means the particular minority group or groups for whom a problem has been identified (see Sections 3K03(a)(2) and 3K03(b)(2) below).
- Use of Term Statistical Significance: The term statistical significance relates to the likelihood a result occurred by chance. Normally, if that likelihood is 5% (.05) or less, the result is considered statistically significant. In an employment discrimination case, what is often being compared is a disparity in selection rates, wages, etc. for members of a minority group/women vs. others. Where that disparity is statistically significant at the .05 level (e.g., would occur by chance only 5% of the time or less), there is a good probability that some other factor--potentially discrimination--caused the disparity.
- Normal Measurement: In most instances, the formula provided in Appendix A (SCRR Worksheet 17-12a) may be used. This formula yields the number of standard deviations in the difference between the selection rates, etc., for the groups being examined. The 5% level noted above is approximately equal to 2 standard deviations.
- Measurement with Small Numbers: Where the numbers being examined are small, the standard deviation measurement described above may not be meaningful. More specifically, if the number of total persons (minority group members/women plus others) in the pool (of applicants, of candidates) is less than 30 and the number of expected minority/female selections is less than 5, a small numbers test (preferably Fisher's exact) should be used. The number of expected minority/female selections may be found by multiplying the overall selection rate by the number of minority/female candidates (see IRA instructions in Appendix 2A for examples). Where the analysis being conducted meets these two conditions, the EOS should contact appropriate AO/RO personnel, and ask that a Fisher's exact test (which has been supplied in a computer program) be run on the data. Rather than yielding the number of standard deviations, Fisher's exact directly measures the probability that a difference in selection rates, etc. would occur by chance. Therefore, a Fisher's result of 5% (.05) or less is normally considered statistically significant.
- Cautionary Note on Very Large Numbers: With very large numbers, there may be statistical significance but no adverse impact (see Chapter 7, Section 7E06(b)).
Therefore, if there are very large numbers in a re-fined IRA, go on to compute statistical significance even if there is no adverse impact.
- Statistics Do Not Stand Alone: In the last analysis, all discrimination cases are evaluated on the totality of the evidence. Although statistical significance at the 5% level (2 standard deviations or .05, as appropriate) is usually needed to establish a prima facie pattern or practice case of discrimination, where there is additional evidence of discrimination statistical significance may not be necessary. In such a case, statistical test results should still be included since the degree of difference in selection rates, etc. would be weighted along with the other evidence of discrimination.
- Potential Discrimination Worksheets: Use of the SCRR Potential Discrimination Worksheets included in Appendix 3A is strongly encouraged but optional. However, the "Key Factors" given at the beginning of the instructions for each Worksheet must be addressed in the investigation if the Worksheet itself applies to the problem involved (for example, Worksheet 17-3 applies to individual cases, while Worksheet 17-4 (and some others) apply to pattern or practice cases). The organization of the remainder of this Chapter generally parallels that of the Worksheets. The "Key Factors," therefore, provide a summary of the major points discussed from here on in this Chapter.
3K01 ANALYSIS OF PROBLEM AREAS
At the conclusion of the desk audit, all areas of potential employment discrimination are listed on page 17 of the SCRR. The precision with which such problem areas could be identified at desk audit depended upon the quality of the data submitted for desk audit. Once onsite, it is usually necessary for the EOS to refine the data used at desk audit to verify that the potential problem areas identified represent real issues as opposed to those growing out of confusion about the meaning of the data.
3K02 INTERVIEWING
- Interview before Examining Records: It is preferable to interview contractor officials concerning their employment processes and procedures before reviewing the company records. As a general rule, the EOS does not know enough about the selection processes and criteria before going onsite to make intelligent decisions about which records to examine and what to look for in the records. The EOS should inform the contractor officials, however, that it may be necessary to interview them further after examining the records.
- Initial Onsite Interviews: Initial onsite interviews about potential problem areas identified at desk audit should concentrate on the employment process involved with the problem area being examined. The information gained will permit the EOS to make some decisions about data refinement (discussed below) and whether to proceed on the basis of an individual case or a class case. Each discussion with contractor officials should be documented and, where possible, signed statements should be obtained (see Section 3D03(d) above).
3K03 DATA REFINEMENT
The file should explain the rationale for the EOS' decisions about data refinement.
- Refined Impact Ratio Analysis: At desk audit, the EOS will have conducted Impact Ratio Analyses (IRAs - see Chapter 2, Section 2O and the instructions for SCRR page 15) to identify areas where employment activity should be investigated further onsite. However, data provided for desk audit are rarely more detailed than by job group. Job group data, while sufficient for an initial analysis, must be refined.
- True Candidate Pools: Job group data may have reflected decisions for jobs with different candidate pools. For example, hires into a Scientist II job group may include Chemists and Physicists, and would need refinement to compare Chemist applicants with Chemist hires and Physicists applicants with Physicist hires. (Please note, however, that refinement may also increase the pool--for example, it may be found that several entry level job groups draw from the same applicant pool.) Also, job group data may contain per-sons who applied/became eligible for selection after the date of the last selection. It is, therefore, usually necessary to refine data so that they reflect selection for jobs with similar qualification requirements from among persons who were in the pool when the selections occurred. See SCRR Worksheet 17-1 and the accompanying instructions for further examples.
- Particular Minority Group: If the adverse IRA under investigation is for minorities in the aggregate (i.e. the EOS has not already narrowed the focus to particular minority groups--see Chapter 2, Section 2O02), it should now be refined to determine for which minority group(s) selection is adverse, and subsequent analyses focused on that group(s). See the instructions for SCRR Worksheet 17-1 for further guidance.
- Lack of Data: If the contractor has not maintained records sufficient to permit refining the IRA to identify the job title(s) for which selection was adverse, the EOS should cite the contractor for a violation of 41 CFR Part 60-3. See Chapter 2, Sections 2G14(d), 2H01(a) for a discussion of 41 CFR Part 60-3 data requirements. If the job group is underutilized for the group for whom the IRA is adverse (and/or titles within the group are underutilized), the EOS should also specifically cite 41 CFR 60-3.4D which permits OFCCP to draw an inference of adverse impact where such underutilization is present and the contractor has failed to maintain the required data.
- Refined Concentrations/Underrepresentations: On SCRR page 14, the EOS recorded results of his/her review of the workforce analysis for concentrations and underrepresentations. Such employment patterns may have developed at any time in the past. The purpose of SCRR Worksheet 17-2 is to determine whether factors contributing to those patterns continued into the normal liability period (i.e. for a compliance review, the two year period preceding the contractor's receipt of the Scheduling Letter).
- Openings and/or Potentially Discriminatory Policy: During the normal liability period: (1) were there openings in underrepresented job area(s) that have similar qualification requirements to areas where members of a minority group or women are concentrated? or (2) was there an employment policy or system in effect that served to create or maintain the concentration? (An analysis for similar factors may also be done for areas where there is underrepresentation but no associated concentration.) If there was no such activity or policy in effect into the normal liability period, the area need not be pursued further for potential discrimination. See the instructions for SCRR Worksheet 17-2, and the discussion of continuing violations in Chapter 7, Section 7B01.
- Particular Minority Group: If the workforce pattern under investigation is reachable during the normal liability period (per (1) immediately above) and is for minorities in the aggregate (i.e. the EOS has not already narrowed the focus to particular minority groups--see Chapter 2, Section 2N00), it should now be refined to identify the particular minority group(s) that are concentrated/underrepresented in the area. Subsequent analyses will then be focused on that group(s).
3K04 EMPLOYMENT DISCRIMINATION THEORIES
While the following discussion frequently mentions the two major theories of employment discrimination (disparate treatment and disparate impact), it is important to note that there are no rigid guidelines on when the particular theories are used. In order to provide structure to the investigation and for ease of analysis, this Chapter recommends that objective criteria be analyzed first and that subjective criteria be addressed only where the objective criteria do not account for the bottom line effect (see Sections 3M02, 3M03 and 3O00). Also, this Manual generally discusses the disparate impact theory in relationship to objective criteria rather than to subjective criteria although both impact and treatment theories may be applied to subjective criteria. The U.S. Supreme Court in Watson v. Fort Worth Bank & Trust, __ U.S. __ (June 29, 1988), stated that "...subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases." EOSs should concentrate on developing sufficient facts to show that the problem being investigated was caused by discrimination and not become overly concerned about the theory of discrimination involved. See Chapter 7 for a complete discussion of the different proofs.
3K05 INDIVIDUAL VS. PATTERN OR PRACTICE
The first step in analyzing a problem area is to determine whether it involves an "individual" or "pattern or practice" problem. The investigative processes and, to some extent, the methods of proof, differ for individual and pattern or practice cases.
- Identifying Individual Cases: Individual cases are those which are based upon what happened to an identified individual. The most common way to develop an individual case is to reconstruct the selection decision and make one-on-one comparisons of candidates (cohort analysis). The decision about whether a case is individual or pattern or practice is based primarily upon whether a properly refined IRA or other analysis shows a statistically significant difference in selection rates, wages, etc. using a statistical test appropriate to the numbers involved (see Section 3K00(e) above).*
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*Some cases, however, are inherently pattern or practice regardless of any statistics or the number of persons affected--such as a case based on a specific policy (for example, a discriminatory maternity leave policy).
However, where the essence of the case is suspected discrimination against a few identified individuals, an individual analysis is more appropriate. Contractors are given initial notice of individual discrimination in a Notice of Violations (see Section 3T below).
- Identifying Pattern or Practice Cases: Pattern or practice cases are based upon the contractor's regular or normal way of making employment decisions. Pattern or practice cases look at how members of a minority group or women, as a group (as opposed to individual members of a group), are affected by the contractor's policies and practices. A few individual, isolated cases of discrimination do not make a pattern or practice. The usual way to establish a pattern or practice case is through the use of statistics to show the "impact" of the contractor's employment policies or practices and/or a statistical analysis of the "treatment" of members of a minority group or women by the contractor. For example, in a statistical disparate treatment pattern or practice case, the difference between the selection rate of members of a minority group/women and others is extreme enough to, in itself, suggest discrimination. "Extreme enough" in this context means statistically significant. See discussion of statistical significance in 3K00(e) and in Chapter 7. Contractors are given notice of a pattern or practice case in a Predetermination Notice (see Section 3P).
- Series of Cohorts: A series of cohorts (see Section 3K05(a) above) alone does not usually establish a pattern or practice case. A series of such cohorts is a perfectly legitimate basis for seeking relief for the specific individuals involved. It does not, however, automatically create a presumption that any other members of the minority group or any other women were also potential victims.
- Discrimination Victims in Pattern or Practice Cases: Once a pattern or practice is established, the EOS does not need to show that each minority/female was a victim. The presumption is that each was, unless the contractor can show otherwise, by demonstrating, for example, that there was no job opening at the time the individual applied, that a better qualified person was selected, or any other legitimate nondiscriminatory reason. A pattern or practice case, therefore, always has the potential of securing more relief than a series of individual cases, and is the preferred approach where a potential class of members of a minority group or women is involved. Normally, if a properly refined IRA is adverse and the numbers are sufficiently large, a pattern or practice approach should be attempted (see further discussion of this matter in Chapter 7).
- Efficiency in Choice of Case: Whether to proceed on an individual or a pattern or practice basis is also a matter of practical judgment. Where the number of selections/persons in the pool is relatively small, the most efficient use of review time may be an individual analysis. Where, however, the number of selections/persons in the pool is large, a pattern or practice analysis is normally more efficient than going through the files/other data to reconstruct each selection decision on a case-by-case basis.
3L INDIVIDUAL-TYPE DISCRIMINATION
3L00 MATERIAL COVERED
The detailed steps to follow in investigating individual-type discrimination cases are set out on SCRR Worksheets 17-3a and
17-3b. Also, see the instructions that accompany those SCRR pages. The material contained in the following sections is more general in nature.
3L01 IDENTIFYING THE EMPLOYMENT PROCESS
In most selection decisions there are several candidates competing for a particular job opening, and their relative qualifications are compared to determine who is the best qualified. Therefore, the EOS should obtain from the EEO Coordinator and/or main selecting official both: (1) the minimum objective criteria a person must meet to be considered; and (2) what factors are most important in choosing among those who meet minimum standards. Some selection decisions, however, are not dependent on an opening. Rather than competing with others, a person is supposed to be selected as soon as he/she individually meets a given standard. This is most common in career ladder promotions. In these cases, the EOS need only obtain the minimum objective criteria.
3L02 EVALUATION FOR INDIVIDUAL DISPARATE IMPACT
Before beginning the analysis, examine the stated selection criteria. In an individual-type analysis, a criterion may have been applied only to one or a few persons and, thus, the contractor's data may show no significant adverse impact. The criterion, however, may have a foreseeable adverse impact on a minority group(s) or women based on wider societal data. For example, given national statistics on height, a minimum height requirement of 6 feet would have a foreseeable adverse impact on women, Hispanics and Asians. If a minority/woman is rejected because of a criterion with such foreseeable impact, it is an individual disparate impact case. The minority/woman is due relief unless the contractor can show evidence of job relatedness or business necessity (see Chapter 7, Section 7E). If no minority or woman was rejected because of the criterion with foreseeable adverse impact, the contractor should be informed that it must be prepared to justify use of the criterion as job related or required by business necessity if the criterion does eliminate members of a minority group or women in the future.
3L03 EVALUATION FOR INDIVIDUAL DISPARATE TREATMENT
- Records: Obtain the records necessary for the analysis (usually the applications of the minority group members or women rejected and of others selected). The minimum information needed from these records is:
- The date each minority or woman applied (if application is not a part of the process, enter the date he/she entered the source group for selection for hire, promotion, etc.);
- The date each nonminority/male was selected; and
- The level of each person's qualifications on the contractor's objective criteria. (It is not necessary to consider the contractor's subjective criteria at this stage. The concern is to establish that the minority group member or woman not selected was at least as well qualified as the person selected on the basis of objective qualifications. It is up to the contractor to raise any subjective elements as a response to the case. The differences between objective and subjective criteria are discussed below.)
- Analysis: Compare each minority's/woman's level of qualifications on the contractor's objective criteria with those of nonminorities/males selected when he/she was in the candidate pool. If the minority or woman was equally or better qualified than one or more of those selected when he/she was in the pool, ask the contractor the reason why the nonminority/male was selected (SCRR Worksheet 17-3a).
- Contractor's Response: SCRR Worksheet 17-3b is used to record and evaluate the contractor's explanation of why the nonminority/male was selected. The usual response in this type of case is that the person selected was better qualified or there was some impediment to the selection of the minority or woman. These responses are referred to as the contractor's articulated nondiscriminatory reasons. If the contractor offers a response, then the EOS must determine whether the response is a pretext.
- Pretext: Pretext means that the reason offered by the contractor for selecting the nonminority/male is not true. Further investigation and analysis is usually necessary in order to determine whether the contractor's articulated reason for selecting the nonminority/male was a pretext. The investigation should determine whether the contractor's stated reason is true, evenly applied, and without disparate impact. For example, where the contractor asserts that a White male was selected for a job because he had an MA, at least three types of inquiries could be made. First, it should be determined whether, in fact, the White applicant had an MA. If not, the contractor's assertion does not explain the selection and has been shown to be a pretext. If the White does have an MA, it should be determined whether the MA requirement was evenly applied (e.g., Did the Black also have an MA? Has the contractor consistently preferred applicants with an MA in similar employment contexts?). This is a disparate treatment inquiry and should be conducted in the same manner as other comparative disparate treatment analyses. If the MA requirement is true and is evenly applied, then the EOS should consider whether it has an unjustified adverse impact (e.g., Does the MA requirement have an adverse impact against Blacks and, if so, is it justified?). See the instructions for SCRR Worksheet 17-3b and Chapter 7, Section 7D05(g) for further discussion of pretext.
3M PATTERN OR PRACTICE — GENERAL
3M00 INTRODUCTION
- Causation: Since pattern or practice cases can involve extremely complex fact situations, it is very important to proceed with the investigation in an organized manner. It is important to never lose sight of the purpose of the investigation, namely to determine whether the problem being investigated was caused by legitimate factors or by discrimination. The EOS' objective in the investigation is to find out what caused the problem.
- SCRR: SCRR Worksheet 17-4 may be used to record the contractor's process, the individual steps in that process, who makes the employment decisions, the selection criteria, how the criteria are used, and the steps in the process where members of a minority group or women are disproportionately screened out. In addition, provision is made for determining whether the selection criteria are uniformly administered.
3M01 ANALYZING THE EMPLOYMENT PROCESS
- Identifying and Mapping the Employment Process: The first step in the investigation is to determine how the employer's process works (Column "b" of SCRR Worksheet 17-4). This involves identification of all the steps and decision points involved in getting to the job or opportunity being investigated. The process usually will consist of things the employee/applicant must do, such as apply for the opportunity, and decision points resulting in selection, such as an interview. Once the employer's process has been identified, it is helpful to actually draw a map of it, and identify those steps at which persons may be screened out.
- Identifying Pass/Fail Points: If a person must successfully pass through a certain step in the process before proceeding on to the next, that step is a pass/fail point. If data are available, each pass/fail point can be examined to see if members of a minority group or women are being disproportionately screened out. However, if people are not eliminated at separate steps but their performance at each step is weighted for a final decision, then the process as a whole is evaluated. In evaluating the process as a whole, the EOS should ask the contractor to describe the importance of each step in the selection decision. Where the contractor can do so and data are available on performance at each step, the EOS should accordingly weight his/her analysis to attempt to determine the particular factor(s) that disproportionately eliminated members of a minority group or women.
- Identifying Problem Steps: As an example, a process may consist of (1) filing an application; (2) screening for possession of a high school diploma; (3) taking a written test, and (4) undergoing an interview during which the applicant is selected or rejected. Applicants must demonstrate they have a high school diploma before being tested, and must pass the test before being interviewed. Assuming data are available on the total number of applicants by race/sex, the number with a high school diploma, the test results, and the results of the interview, one could determine the proportion of members of a minority group or women eliminated at each step of the process.
- Lack of Data: If it is impossible to determine at which step and/or by which criterion members of a minority group or women were disproportionately screened out because the contractor failed to maintain adequate data as required by 41 CFR Part 60-3, cite the contractor for violating that Part and do the analysis based upon the bottom line effect as provided for in 41 CFR Part 60-3. However, under such circumstances the EOS should obtain as much information as possible about the process and make every effort to identify the step/criterion causing the problem.
- Relevant Pools: The relevant pools for each step will be the persons who made it to that step compared with those who made it through that step. In the example in (c) above, if the EOS were analyzing a bottom line disparity in hiring rates, the EOS would first consider the pool of all applicants to determine whether the high school diploma requirement has an adverse impact. If the high school diploma requirement does not fully explain the disparity in hiring, the EOS would next determine whether the test disproportionately eliminated members of the minority group/women. Finally, the proper pool for evaluating the effect of the interview would be all applicants who have a high school diploma and passed the test. All such persons meet the "minimum objective qualifications" for the job. From the perspective of minimum objective qualifications, they are all similarly situated. Therefore, any difference in their selection rates would be attributable to the interview.
3M02 ANALYSIS OF SELECTION CRITERIA — SEQUENCE
Where practical, objective criteria should be analyzed before subjective criteria. Objective criteria are generally easier to analyze than subjective ones. This is because objective criteria tend to result in "hard" data; e.g., whether or not a person has a high school diploma is a straightforward determination. In addition, it is relatively simple to determine if the contractor uniformly applied an objective criterion and to assess its impact upon members of a minority group or women. Subjective decisions tend to consist of judgment calls by the contractor and can be very hard to assess. Further, if data about the application of subjective criteria are lacking, it may be possible to evaluate their effect by analyzing objective factors first. Once objective factors are analyzed, any residual disparities may be attributed to subjective criteria. Also, objective factors are usually the ones first encountered in the contractor's employment process. Where there are both objective and subjective factors, the contractor will frequently assess the subjective through an interview. However, the contractor will generally interview only persons who meet the minimum objective qualifications.
3M03 DISTINGUISHING OBJECTIVE VS. SUBJECTIVE SELECTION CRITERIA
- Objective Criteria: The central characteristic of an objective criterion is that it can be independently verified--i.e. different people measuring objective criteria will normally reach the same results. For example, if the criterion is possession of a high school diploma, there is normally no doubt whether a person meets the criterion.
- Subjective Criteria: Subjective criteria require judgment in their application. Therefore, people can differ on whether a particular candidate possesses such a criterion. For example, two selecting officials can easily differ on whether a candidate "speaks with authority."
3N PATTERN OR PRACTICE — ANALYSIS OF OBJECTIVE CRITERIA/PROCESSES
3N00 TYPICAL USES OF OBJECTIVE CRITERIA
- Selections From a Pool: In a typical selection problem, the EOS will be examining what caused a significant disparity in the selection rates of members of a minority group/women and others from a pool of similarly situated persons. Minimum objective criteria are generally used to determine who will get into the pool of candidates. A subjective process, such as an interview, is generally used to make selections from the pool of minimally qualified candidates.
- Exclusive Use of Minimum Objective Qualifications: There could be an employment process where everyone who meets an objective criterion is selected, such as a promotion process where persons are supposed to be promoted when they have a certain amount of time in grade, or a salary review process where persons are supposed to get a raise when they receive a college degree. In this type of situation the analysis is obviously confined to the relative effect of the objective criterion.
- Multiple Objective Criteria: There may be several objective criteria that are critical to a selection decision. Where there is more than one criterion, the EOS must determine if the selectee must meet each criterion individually or whether the contractor balances the criteria in reaching a decision. If each criterion must be met, perform the analysis for each one. If they are balanced, analyze them in the way they are used by the contractor. The EOS should remember, however, that he/she has the ultimate burden of establishing that it was discrimination that caused the problem.
3N01 CRITERIA VERIFICATION (OBJECTIVE)
The first step in analyzing the objective criteria is to determine that they were, in fact, used to make selections and were required of both members of a minority group/women and others. This issue is addressed on SCRR Worksheet 17-5.
- Single Criterion: In some situations, this determination is rather straightforward, such as where there is a test and the contractor maintains a list of those tested and whether they passed. Assuming the test results are annotated for race/sex, a copy will readily show whether a stated pass score was uniformly required of all. However, where there are several criteria, a more detailed analysis is required.
- Multiple Criteria: Where there are multiple criteria, or there is no summary record available to determine whether the selectees met the criteria, the EOS will need to create a summary record. This can be done by creating a "matrix" with the criteria listed across the top of a page and the names and race/sex of all persons selected during the relevant period down the left side. The EOS will then go through the personnel files for the persons selected and note on the sheet whether they satisfied the criteria.
- Interpreting the Results of Criteria Verification:
- When the review of persons selected has been completed, review the matrix to see if everyone met the criteria. It may be concluded that the contractor did actually use the criteria if either everyone met the criteria or there were very few exceptions. If the criteria were used, analyze the criteria and their use for discrimination as discussed below.
- If a substantial number of selectees (of any race/sex) do not meet a particular criterion, the EOS may discount the employer's statement that the criterion forms a basis for his/her decision.
- If the contractor used the criteria in a nonuniform manner, that is, it applied different standards to members of a minority group/women and others, this probably indicates employment discrimination based on disparate treatment, and a disparate treatment analysis should be conducted. See SCRR Worksheet 17-5 and accompanying instructions.
3N02 DISPARATE IMPACT ANALYSIS
A disparate impact* analysis consists of two steps: (1) calculating the adverse impact of the criterion and the statistical significance of that impact; and (2) determining whether the contractor can justify use of the criterion based on job relatedness or business necessity (see Chapter 7, Section 7E08). This Section deals with step 1. Step 2 is normally completed following issuance of a Predetermination Notice and, therefore, is addressed in Section 3Q00 below.
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*In Title VII case law the terms disparate impact and adverse impact are used interchangeably.
- Pool of Persons Used for Statistical Calculation: In an adverse impact calculation, the number of persons from each group who were assessed on the criterion is compared to the number from each group who met the criterion. This yields a pass rate for each group, and the difference in pass rates is then tested for adverse impact and statistical significance.
- Identify the Nature of the Criteria: First, determine whether each objective criterion is a pass/fail requirement (that is, it eliminates a person from further consideration if it is not met) or whether it is considered along with others to make a final decision.
- Pass/Fail Criteria: For each pass/fail criterion, determine whether the difference in pass rates for members of a minority group/women and others shows adverse impact and is statistically significant. Where the pool is not sufficiently large for the usual test of statistical significance to be meaningful, see Section 3K00(e).
- Cumulative Evaluation of Criteria: Where the criteria are not considered singly but balanced together in reaching a decision, determine from the contractor how it balances the criteria in making a selection. If possible, use a weighted calculation to determine which criteria are causing the adverse impact. If it is impossible to isolate the contributions of the individual criterion to the bottom line effect, calculate the cumulative effect of all the criteria. This calculation can be justified on the basis of the contractor's failure to keep records as required by 41 CFR Part 60-3.
- Preliminary Findings: If the criterion(ia) shows adverse impact (as discussed in Chapter 7, Section 7E06), issue a Predetermination Notice (3P)* and ask the contractor for evidence that the criterion(ia) is job related or required by business necessity.
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*While still onsite, however, it is desirable to ask the contractor at least whether it has a formal validation study (and, if so, to obtain a copy and any related materials — see instructions in Appendix 3A for Worksheet 17-6b). If there is such a study, the Predetermination Notice should cite the adverse impact and indicate that OFCCP will evaluate the study.
- Disparate Impact Finding and Alternatives with Less Adverse Impact: A disparate impact finding should await receipt and analysis of the contractor's response to the Predetermination Notice (3P, 3Q00(a) and (b)), and a consideration of alternative selection procedures with less adverse impact (Section 3Q00(c) below).
3N03 DISPARATE TREATMENT ANALYSIS
- Pool of Persons Used for Statistical Calculation: In a disparate treatment calculation, the pool of persons who met the criterion(ia) is compared with the number who were selected. This yields a selection rate (of persons deemed "qualified" based on the contractor's legitimate objective criteria) for each group, and the difference in rates is then tested for statistical significance.
- Defining the Pool: The relevant pool of similarly situated (qualified) persons used to calculate the disparity in selection rates should be the same pool from which the contractor made its selections. The relevant pool depends upon the contractor's employment process and selection criteria. For example, if the criteria were an MBA plus three years of sales experience, and the EOS was comparing women to men, he/she would divide the number women selected by the number who had an MBA and three years sales experience, then do the same for men and test the resulting selection rates for adverse impact and statistical significance.
- Use of Minimum Objective Criteria: In forming the pool of "qualified" persons for this analysis, the EOS need only consider the contractor's stated legitimate minimum objective criteria.
- Relationship to Criteria Verification: If, as a result of criteria verification (see Section 3N01(c) above), the EOS determined that a stated criterion was not used by the contractor. For example, if the contractor stated that the minimum objective criterion for a job was an MBA, but actually hired both men and women with a Bachelor's Degree in Business Administration (BSBA), the EOS could either disregard the educational "requirement," or form the pool based on all persons with a BSBA.
- Basis for Allegation of Statistical Disparate Treatment: In a pool of similarly qualified persons, each person has approximately the same chance of being selected. For example, if the pool of similarly qualified persons was 20 percent minority, it is reasonable to expect that, absent discrimination, approximately 20 percent of the selections from the pool would be minority. If the difference in selection rates among similarly situated members of a minority group/women and others is greater than would be expected by chance, then there is a presumption that the difference is due to discrimination.
- Measurement of Statistical Significance: Measurement of the statistical significance of a difference in selection rates (whether by standard deviations or another method) indicates the probability that a particular disparity in those rates could have occurred by chance. The greater the disparity between the percentage selected and the percentage expected, the more likely the variation did not happen by chance but was a result intended by the contractor. When there is a significant chance that the disparity in selection rates for members of a minority group/women and others could not have happened by chance, this is strong evidence of discrimination. The precise significance level required varies with the facts of the case. While a 5% significance level (approximately two standard deviations or .05 on Fisher's--see Section 3K00(e) above) is usually sufficient to establish a prima facie case of employment discrimination, statistical significance may not be necessary to support a finding of a pattern or practice of discrimination where there is a significant amount of other evidence. However, the greater the number of standard deviations (or the lower the Fisher's result), the greater the probability that the disparity is due to the use of a prohibited factor in the decision.
- Supporting Evidence: While courts have held that statistics alone may be sufficient to prove disparate treatment discrimination where disparities are gross, statistical cases are strengthened by supporting evidence, including anecdotal evidence. Anecdotal evidence consists of producing members of a minority group/women who can show that they met all of the contractor's requirements but still did not receive the benefits at issue, and any first-hand accounts of discriminatory acts on the part of the contractor that support the statistical inference. In addition, direct evidence (e.g., biased statements by the contractor's officials involved in the employment transaction at issue) are relevant to intent. In addition to anecdotal evidence, statistical disparate treatment cases could be supported by evidence that the statistical disparity is "longstanding," that it has existed for some time and is not just a statistical fluke based on the particular time period being examined. EOSs should collect as much supporting evidence as is practical in all cases regardless of the number of standard deviations or Fisher's result. SCRR Worksheet 17-8 provides a guide for collecting and recording supporting evidence.
- Preliminary Findings: If the result of the disparate treatment calculation based on minimum objective qualifications is statistically significant (but see cautions in Section 3K00(e)), the EOS then must determine whether there are any remaining subjective criteria or processes (such as an interview).
- Remaining Subjective Criterion(ia): If there are remaining subjective criteria or processes, the EOS should analyze them as discussed in 3O below. Please note that where there are such remaining subjective criteria/processes, the comparison here between those who met objective criteria and those selected, will also directly reflect the result of the subjective criteria/processes. For example, if the selection process consisted of a screening for an MBA followed by an interview of all those who had an MBA, a comparison of those who had an MBA with those selected would be mathematically identical with the result of the interview.
- No Remaining Subjective Criterion(ia): If there are no remaining subjective criteria or processes, the EOS should develop any supporting evidence (see Section 3N03(e)), and issue a Predetermination Notice (see 3P) asking for the contractor's explanation of the difference in selection rates. Section 3Q01 below discusses typical contractor responses in Statistical Disparate Treatment cases.
3O PATTERN OR PRACTICE — ANALYSIS OF SUBJECTIVE CRITERIA/PROCESSES
3O00 ANALYZE SUBJECTIVE CRITERIA/PROCESSES AFTER OBJECTIVE
An analysis of subjective criteria/processes will generally be undertaken only after first determining the effects of any objective qualifications used by the contractor. Once the effect of the objective criteria/processes has been determined, any remaining effect is due to the subjective criteria/processes. The effect of the remaining subjective criteria/processes is determined by comparing the selection rates of members of a minority group/women and others from the pool of persons who met the objective requirements. If the disparity in these selection rates is not significant (but see cautions in Section 3K00(e)), then it is highly unlikely that a statistical case can be made based upon the subjective criteria or processes. If the disparity is significant, proceed as described below.
3O01 ANALYTICAL PROCESS
Subjective criteria/processes are analyzed in essentially the same way as objective criteria/processes, namely, a determination is first made whether the stated subjective criteria are actually being used (verification) and then whether they are being applied in a uniform manner to both members of a minority group/women and others. If the subjective criteria/processes are being applied in a uniform manner, then a statistical case may be established based on their impact.
3O02 CRITERIA VERIFICATION (SUBJECTIVE)
The same method is used to determine whether stated subjective criteria/processes are actually used as that used with objective criteria/processes. Examine the persons selected and determine whether they were rated on the subjective factor(s). If they were, then it is safe to assume that the subjective factor was used. If some were rated and some were not, look for any pattern in application to members of a minority group/women vs. others. If there is no pattern, then the criteria may be disregarded. If there is a pattern, i.e., they are not uniformly applied to members of a minority group/women and others, then this is disparate treatment. For example, if in an interview women are asked personal, sex related questions not relevant to the job, this is direct disparate treatment.
3O03 UNIFORM APPLICATION/SAFEGUARDS
Safeguards consist of efforts made by the contractor to limit the possibility of differential application of the selection criteria/processes. In other words, treating members of a minority group or women differently than others in the application/evaluation of the criteria/processes. An example of a uniformly applied subjective process with safeguards could be an interview where all persons who pass the required test are interviewed regardless of minority or sex status; all interviewers are professionally trained in interviewing; all persons interviewed are asked the same questions; responses are documented; and answers are all evaluated in the same manner. Under these circumstances it would be appropriate for the EOS to calculate the statistical effect of the subjective criteria/processes and allege that adverse impact exists where the criterion eliminates a statistically significant (see Section 3K00(e) above) proportion of members of a minority group or women. However, if only nonminority persons who passed the test were interviewed, this would be an example of nonuniform application of the interview process and would indicate disparate treatment on its face.
3O04 SPECIFIC SAFEGUARDS
SCRR Worksheet 17-7 lists and explains specific safeguards to be evaluated. These are: consistency, guidelines, documentation and review, and knowledge of the job and the candidates. If the contractor has instituted others, they may be discussed in the evaluation of the safeguards. Record the results of this analysis on SCRR Worksheet 17-7.
3O05 EVALUATION
- Few Safeguards: Where the subjective criterion/process has relatively few safeguards and is poorly documented, there is considerable room for differential assessment of members of a minority group/women vs. others. Under such circumstances, the EOS may be able to establish discrimination based upon a showing of different treatment. If members of a minority group/women are selected at a statistically significant lower rate than others, discrimination based upon statistical disparate treatment may be alleged. Under these circumstances, supporting evidence of intent should be collected.
- Many Safeguards: If there are many safeguards and the system is well documented, this suggests members of a minority group/women may be treated similarly to others. If members of a minority group/women are selected at a statistically significant (see Section 3K00(e) above for cautions) lower rate, the subjective criterion/process nonetheless is having an adverse impact in the same way that a neutral, uniformly applied objective criterion may have an adverse impact. Under these circumstances disparate impact may be alleged.
- Safeguards Not Definitive: In many cases it will not be possible to definitely determine whether subjective criteria have been uniformly applied through an analysis of safe-guards. In these cases, both disparate impact and treatment should be alleged in the alternative and evidence to support both theories should be sought.
3P PATTERN OR PRACTICE — PREDETERMINATION NOTICES
3P00 BACKGROUND
A Predetermination Notice (Figure 3-8) is used in pattern or practice discrimination cases. In litigation, such cases often proceed in two phases. The first is liability and the second is remedy.
- Liability Phase: In the liability phase, the inquiry centers around whether discrimination has occurred. In litigation, the obligation is on the plaintiff to prove discrimination. Analogously, in a compliance review, this obligation is OFCCP's. In a compliance review, if OFCCP does not make at least a prima facie showing of discrimination, the case can be dismissed summarily without the contractor producing any evidence. However, if OFCCP makes a prima facie showing, the contractor is given an opportunity to respond. If discrimination is found, (i.e., the contractor's response is insufficient to rebut OFCCP's prima facie case or is shown by OFCCP to be pretextual), the discriminatory practice must be terminated, and the case should move to the second or remedial phase.
- Remedial Phase: Once liability is established, it is presumed that all class members are victims of the discrimination. In the remedy phase, therefore, the contractor cannot challenge the general finding of discrimination made in the first or liability phase, but may challenge whether a particular class member suffered from that discrimination. Although the burden was on OFCCP at stage one to show that it was more likely than not that discrimination had occurred, at the remedy stage the burden shifts to the contractor to overcome the presumption that a given class member is entitled to a remedy--i.e. a given class member is presumed to be entitled to a remedy unless the contractor proves that he/she is not. In short, the second stage is designed to identify specific class members entitled to relief and the exact remedy to which they are entitled. See Chapter 7, Section 7F, for a complete discussion of remedies in class cases.
3P01 USE OF PREDETERMINATION NOTICE
- Pattern or Practice Cases Found During a Compliance Review: A Predetermination Notice (Figure 3-8) will be used in pattern or practice cases found during compliance reviews under Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and 38 U.S.C. 4212, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. It does not apply to affirmative action deficiencies or to individual discrimination deficiencies.
- When Issued: Pattern or practice discrimination investigations generally will be conducted in accordance with the bifurcated (two stage) process described in Section 3P00 above. After the EOS has identified a potentially discriminatory employment pattern or practice, the matter will be investigated until the file contains sufficient information to establish discrimination absent adequate explanation by the contractor. At that point, the contractor will be notified via the Predetermination Notice of the alleged discrimination and of its opportunity to respond to this allegation. The contractor's response will be evaluated. Further action by OFCCP, including additional investigation, will depend on the adequacy of the contractor's response.
3P02 CONTENTS OF THE PREDETERMINATION NOTICE
A Predetermination Notice will:
- Describe the Discrimination: Describe the discrimination which has been revealed by the review. Identify the class, the employment action giving rise to the allegation and the basis for the liability determination -- e.g., disparate treatment in the selection of minority technicians.
- Offer the Contractor the Opportunity to Respond: Offer the contractor an opportunity to respond in writing by a given date. In determining how much time to allow, consider the complexity of the issues, the length of the review, and the amount of information on the problem already provided during the review and at the exit interview (see Section 3S). The time allowed, however, will not normally exceed one month.
- Other Issues: If the review also involved other affirmative action and/or individual discrimination deficiencies, state that the Notice is not intended to be all inclusive and addresses only an identified pattern or practice of discrimination, and that the contractor will be notified of these other deficiencies at a later date.
3P03 PROCEDURE WHEN CONTRACTOR DOES NOT RESPOND
If the contractor does not respond by the date indicated or extensions thereof, issue a Notice of Violations (Section 3T below). This Notice will cite the contractor's failure to rebut the pattern or practice issue and give a proposed remedy. It will also address affirmative action or individual discrimination deficiencies involved in the review, and will describe proposed corrective actions.
3P04 PROCEDURE WHEN CONTRACTOR RESPONDS
If the contractor does respond, review the information presented. If issues are raised that require further investigation, request and analyze the additional information needed either onsite or offsite. Consider not only whether the contractor's response is a nondiscriminatory explanation for the results you have observed, but also whether the response is pretextual (i.e., even though it is a logical explanation, it is not an accurate reflection of why the contractor behaved as it did).
- Contractor Adequately Rebuts: If the contractor's response adequately rebuts all the issues raised in the Predetermination Notice, and there are not other remaining review issues, acknowledge OFCCP's acceptance of the response and issue a Notice of Review Completion (Figure 3-5).
- Some Issues Rebutted: If the contractor's response adequately rebuts some of, but not all of, the issues raised in the Predetermination Notice and/or there are other remaining review issues, issue a Notice of Violations indicating OFCCP's acceptance of the response in those areas where it was sufficient, proposing remedy in those areas where it was not sufficient, and including any remaining issues and proposed corrective action.
- No Issues Rebutted: If the contractor's response does not rebut any of the issues raised in the Predetermination Notice, incorporate both those issues and any remaining issues into a Notice of Violations.
3Q PATTERN OR PRACTICE — ANALYZING THE CONTRACTOR'S RESPONSE TO PREDETERMINATION NOTICE
3Q00 DISPARATE IMPACT CASES
- Common Contractor Responses: The following are some of the most common contractor responses in a disparate impact case:
- Wrong Data: The contractor may simply allege that the criterion does not have adverse impact based on revised data--e.g. they found that more members of a minority group or women passed a test than was originally known.
- Wrong Statistical Test: The contractor may allege that the statistical test the EOS used was not appropriate, because of sample size and/or other factors.
- Misunderstanding of the Employment Process: The contractor may allege that the criterion was not used as a "pass/fail" factor, but rather as one of several factors weighed in reaching the selection decision.
- Use of Criterion Based on Job Relatedness: The contractor may simply allege that the criterion is job related, or may provide a validation study in support of its contention of job relatedness.
- Use of Criterion Based on Business Necessity: The contractor may allege that use of the criterion is essential to the safe and efficient operation of its business.
- Evaluation of Contractor Responses: Contractor responses alleging erroneous data or a misunderstanding of the employment process are normally questions of fact that may be resolved through reexamination of the data and/or further investigation into how the selection process was actually administered. If, upon investigation, the contractor is found to be correct, the EOS should redo the analysis to take account of the changes. Contractor responses concerning correct statistical tests or presenting formal validation studies normally require expert evaluation. If EOSs encounter arguments about statistical methodology, or receive formal validation studies, they may contact the Division of Policy, Planning and Review in the National Office for assistance. See Chapter 7 and the instructions in Appendix 3A, Worksheet 17-6b for further discussion in this area, particularly on the type of fact gathering that may assist expert evaluation of a validation study. Where the contractor simply asserts job relatedness (no formal validation study) or business necessity, the EOS should also see Chapter 7, Section 7E08, and the Worksheet 17-6b instructions.* If the contractor cannot show that the criterion is job related or required by business necessity, then the EOS will conclude that the criterion is having a disparate (discriminatory) impact on members of a minority group/women. See Chapter 7 for instructions on designing a remedy.
- Alternative with Less Adverse Impact: Even if the contractor is able to show that the criterion having an adverse impact is job related or required by business necessity, OFCCP can show pretext if it can identify another method that has substantially equal validity for the contractor's purpose but has less adverse impact. Such another method may be, for example, an alternative criterion, a different combination of tests in a test battery, the use of a different cut-off score or pass/fail rather than ranking on a test, etc., (41 CFR 60-3.3B). The search for such alternatives often requires expert assistance, and the EOS may contact the Division of Policy, Planning and Review in the National Office if necessary.
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* With business necessity claims it is important to remember that showing a business purpose for a criterion with adverse impact is not sufficient. That purpose must be legitimate, the criterion must be essential to carrying it out and to the safe and efficient operation of the business, and there must be no reasonably available alternative system (see 3Q00(c) immediately above) with less discriminatory effects.
3Q01 DISPARATE TREATMENT CASES
- Common Contractor Responses: The following are some of the most common contractor responses to statistical disparate treatment cases:
- Overlooked Selection Criterion: This is one of the most common contractor responses. The contractor argues that some criterion (qualification) was overlooked in constructing the pool of minimally objectively qualified persons. As a result, the pool contained a number of persons who were not really qualified or considered for the selection. Therefore, statistics based on the pool are invalid. In this argument, the contractor is required to show that it in fact used the criterion and, had the proper criterion been used in forming the pool, the statistical analysis would have produced a different result. If the contractor does show that a facially neutral evenly applied criterion explains the difference in selection rates, the contractor effectively demonstrates that the criterion has an adverse impact, and a disparate impact investigation should be conducted.
- Incorrect Employment Process: This argument states that the EOS has based the analysis on the wrong feeder groups. In essence, it states that the EOS misunderstood the employment process and therefore was unable to identify the pool of persons from which the contractor made its selections. For example, the EOS may have based the analysis on an internal group of engineers when the contractor makes selections from both internal and external sources. The contractor must document this allegation and, if it is true, the EOS should conduct a new analysis based on the proper pools.
- Wrong Statistical Method: The contractor may state that the EOS used the wrong statistical test based on sample size and/or on other factors.
- Evaluation of Contractor Response in Statistical Disparate Treatment Cases: Evaluation of these types of contractor responses are largely issues of fact or correct statistical method. There is one particular situation that the EOS must be aware of when the contractor argues that some important selection criterion was not considered. The relevant criteria are those that were actually used at the time the selections were made, not what the persons may have acquired after being placed on the job. Thus, when the contractor asserts that the EOS failed to account for a particular criterion, the EOS should determine whether all the individuals actually selected (hired, promoted, etc.) possessed the asserted qualification at the time of their selection. Issues of statistical methodology may have to be settled by an expert. If EOSs encounter arguments about statistical methodology, they may contact the Division of Policy, Planning and Review in the National Office for assistance. See Chapter 7, Section 7D05(g) and the SCRR instructions for further discussion in this area.
3R COMPENSATION ANALYSIS
The term "compensation discrimination" encompasses at least four distinct concepts: (1) disparate treatment in pay in relationship to the established range for a job, whether at entry or later (e.g., Blacks with backgrounds similar to Whites on the legitimate factors considered for initial salary are hired at less money, etc.); (2) discrimination in the opportunity to earn money (e.g., discrimination in placement, job assignments, promotions, the opportunity to work overtime, etc.); (3) Equal Pay Act-type discrimination (i.e. sex-based differentials in wages paid for "substantially equal" work); and (4) comparable worth discrimination (paying different wages for jobs of equal value). The Executive Order reaches at least as far as the first three type of compensation discrimination. However, courts have generally been hostile to Title VII cases based on the comparable worth theory. Further guidance on compensation analysis will be provided.
3S EXIT CONFERENCE
As the EOS evaluates information obtained onsite, tentative findings are clarified. These findings will be discussed during the exit conference. The exit conference is generally held on the last day of the onsite, although it may be delayed for a few days. It should be held with the chief executive officer at the facility, or a representative designated by that official. At the exit conference, the EOS should be prepared to discuss the review findings in general terms and to elucidate both the positive and negative aspects of these. The EOS should inform the top official that the written results of the compliance review will be forthcoming as soon as possible, and should provide the contractor with an estimate of the time within which it can expect to receive such written results. Where it is anticipated that a Notice of Violation (see Section 3T below) will be issued (for unresolved pattern or practice findings and/or for other issues such as affirmative action deficiencies and/or individual instances of discrimination), the EOS should inform the contractor that such a Notice will describe the identified deficiencies and include recommended corrective actions.
3T NOTICE OF VIOLATIONS
No violation of any of OFCCP's three programs identified as a result of a compliance review should be resolved without first issuing a Notice of Violation. This includes situations where:
- Pattern or Practice Violation: The contractor either does not respond to a Predetermination Notice (see Section 3P) or its response does not substantially alter OFCCP's preliminary determination of pattern or practice employment discrimination. In this instance, the Notice of Violation incorporates both the remaining pattern or practice violation and any other violations.
- Other Violations Only: No pattern or practice issue is identified during the review, but other violations (such as affirmative action and/or individual discrimination ones) are identified.
3T00 USE FOR PATTERN OR PRACTICE ISSUES
When there are issues of pattern or practice discrimination remaining after the issuance of a Predetermination Notice, the Notice of Violations will:
- Restate the Problem: Restate the problem, with any modifications that may have been caused by the contractor's response.
- Analyze the Response: Analyze the contractor's response, giving the reasons why it does not substantially alter OFCCP's preliminary determination.
- Defenses on Relief: State that the contractor may present any legitimate defenses available regarding relief and those entitled to relief.
- Describe Remedy: Describe the proposed remedy in class terms. Include scope of relief (e.g., all minorities rejected for Technician positions since (date) will be made whole by providing), the type of relief (job offers, back pay, etc.) and, where relevant, the time period involved (e.g., back pay from date of application to date of settlement, etc.).
- Cessation of Discrimination: Specifically require termination of the identified discriminatory practice(s) if the practice has not already been terminated.
Revised 5-25-90
- Conciliation Agreement Required: Indicate that resolution of the pattern or practice violation (and any other violations included in the Notice) must be incorporated in a Conciliation Agreement.
3T01 USE FOR OTHER ISSUES
For each non-pattern or practice issue addressed in a Notice of Violation, the Notice will include a complete description of the violation/deficiency and a statement of the corrective action or remedy required (see Figure 3-9). As noted in 3T00(f) above, where the Notice includes a pattern or practice finding along with other issues, a Conciliation Agreement will be required. Where the Notice solely concerns non-pattern or practice issues, it will indicate whether resolution must be in a Conciliation Agreement or a Letter of Commitment (see Sections 8E and 8F).
3T02 NOTICE TO LABOR UNION
Where remedy for a violation cited in a Notice of Violation would require a change in or otherwise affect a provision of a Collective Bargaining Agreement (CBA) between a contractor and a union, or require the award of retroactive seniority where seniority is governed by a CBA, the union will be notified of the particular violation and proposed remedy, and will be invited to participate in its conciliation (see Sections 8C and 7F06).
3U REPORT WRITING
- The Standard Compliance Review Report (SCRR; CC-50 as revised 12/88) is used to report the results of all supply and service compliance reviews. The SCRR is both a desk audit and onsite report. Appendix A to Chapter 2 provides a copy of the SCRR form and its instructions.
- In addition to the SCRR, there are a number of optional Potential Discrimination Worksheets which, along with their instructions, are provided in Appendix A to Chapter 3. See particularly the "Key Factors" portions of those instructions for items that must be addressed in particular types of potential discrimination analyses.
3V NOTICE OF REVIEW COMPLETION
- When the contractor's AAP is found to be acceptable and all other apparent deficiencies are resolved, the contractor should be so notified. A review of a supply and service contractor is complete when a Notice of Review Completion is issued to the contractor.
Revised 5-25-90
- Figure 3-5 provides a sample Notice of Review Completion where no violations were found. Where a violation(s) was found, sample Notices of Review Completion are provided in Chapter 8. Specifically:
- Figure 8-15 is used where minor deficiencies were resolved in a Letter of Commitment.
- Figure 8-13 or 8-14 is used where major deficiencies were voluntarily resolved in a Conciliation Agreement. If a Show Cause Notice was issued, use Figure 8-13, which includes rescission of the Show Cause Notice. If no Show Cause Notice was issued, use Figure 8-14.
- Refer to Chapter 8 for enforcement procedures when deficiencies cannot be resolved voluntarily.
Revised 5-25-90
Figure 3-1 — Employment Eligilibility Verification Form (Form I-9) Not on disk. See hard copy.
Figure 3-2 — Employment Eligibility Verification Recordkeeping Requirements (E.S.A. Form 91) Not on disk. See hard copy.
Figure 3-3 — Federal Contractor Veterans Employment Report (VETS-100) Not on disk. See hard copy.
Figure 3-4: SAMPLE LINKAGE LETTER
(Name of CEO)
(Title of CEO)
(Company Name)
(Street Address)
(City, State, Zip Code)
Dear (Mr. or Ms. ):
As has been discussed with you....
or
During a recent compliance review,
we recommended and (name and location of the establishment reviewed) has agreed to use your services to secure applicants to meet their affirmative action goals (or "needs" for 503/4212). The specific job titles and applicants needed are listed below:
Projected Number
Job Title of Vacancies
Clerk typist 7
Laborers 3
Although the company is particularly interested in (describe) candidates, all qualified applicants will be considered.
We request that you contact (name) at (phone number) to discuss filling their employment needs.
Sincerely,
(AOD)
cc: OFCCP Regional Linkage Coordinator
Contractor
3-65
Figure 3-5: NOTICE OF REVIEW COMPLETION FORMAT, NO DEFICIENCIES FOUND (SUPPLY AND SERVICE)
(Name of CEO)
(Title of CEO)
(Company Name)
(Street Address)
(City, State, Zip Code)
Dear (Mr. or Ms. ):
Our recent compliance review of your equal employment opportunity policies and practices at (name and location of the establishment reviewed) was completed on (date).
We found no apparent deficiencies or violations of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, or the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 USC 4212). This determination may be modified by the Assistant Regional Administrator, or by the Director, OFCCP, within 45 days of the issuance of this letter.
[Optional]
The Office of Federal Contract Compliance Programs sincerely appreciated the cooperation and courtesies extended by you and your staff during the conduct of the compliance review.
Sincerely,
(AOD/FOD)
3-66
3-67
3-68
Figure 3-8 PREDETERMINATION NOTICE FORMAT
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
(Name of CEO)
(Title of CEO)
(Company Name)
(Street Address)
(City, State, Zip Code)
Dear (Mr. or Ms.__________________________):
The current compliance review reveals a finding that (company name) has failed to afford equal employment opportunity to (name of covered group) in (type of employment activity and jobs) because of their (race, sex, etc.).
(Present the evidence of discrimination.)
Please be advised that this is a preliminary finding based on available information. You now have the opportunity to explain or rebut our preliminary finding. This Notice is intended to address only an identified pattern or practice of discrimination. You will be notified of any other deficiencies at a later date.
Please respond to this Notice not later than (date). If you do not respond, the preliminary findings made in this Notice will be incorporated into a Notice of Violations which will be sent to you certified mail, return receipt requested. In addition, any
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