Although the Office of Federal Contract Compliance Programs (OFCCP) is charged with pursuing cases of discrimination against any individual—whether male or female and no matter the race—the agency has traditionally focused on discrimination involving females, minorities, veterans, and those with disabilities.
However, affirmative action experts are noticing that OFCCP is paying more attention to cases of discrimination involving men and nonminorities.
There has been no directive from the OFCCP to that effect, says Carol A. Dawson, president of EEO GUIDANCE, Inc., in Jeffersonville, Indiana (www.eeoguidance.com). “You’re not going to see a directive, because technically, by law, they’re supposed to already be ensuring nondiscrimination based upon any race and sex.”
A shift in focus
Regional offices and individual compliance officers have much latitude in deciding which issues to pursue, says Dawson, a former OFCCP area director and compliance officer herself. When she worked for the OFCCP, regional offices focused on females, minorities, veterans, and disabled individuals. “That was our focus, and it was made very clear to us.” Cases concerning white males typically involved veterans or individuals with disabilities, she says.
Now, however, “we are seeing a trend to include nonminorities and males in pursuing discrimination issues, although affirmative action requirements continue to be for minorities and females,” Dawson says. While OFCCP’s focus remains on underutilized groups, she says the agency appears to be paying more attention to whether men are underutilized in jobs traditionally held by women and whether nonminorities are underutilized in minority-owned businesses, for example.
In fact, she has seen an increase in OFCCP’s focus regarding discrimination against men and nonminorities over the past 5 to 10 years—particularly in hiring practices. That may be, at least in part, due to technology, she says, because software now runs adverse impact analyses and shortfall results for all groups, rather than just minorities and females, creating potential red flags for compliance officers that would be difficult to overlook.
Early this year, the OFCCP and JacintoPort International, LLC, settled allegations of hiring discrimination on the basis of race in a case involving 48 African-American and 21 Caucasian job applicants who were rejected for positions. The OFCCP alleged that preferential treatment was given to Latino applicants. JacintoPort agreed to pay $219,000 in back wages to the rejected applicants and to make job offers to some of them.
In a much-publicized conciliation agreement between the OFCCP and FedEx Ground Package System, Inc., and FedEx Smartpost, Inc., this spring, the contractors agreed to pay a total of $3 million in back wages and interest to 21,635 applicants, including male and female African-Americans, Caucasians, and Native Americans.
Advice to consider
Dawson recommends that federal contractors and subcontractors take proactive steps to ensure that their personnel actions and pay practices do not discriminate against any group of employees.
It is also crucial to train supervisors and hiring officials on equal employment requirements and make sure they truly understand those requirements, Dawson says. In addition, she says it is important to train all employees on equal employment opportunity (EEO) obligations so that they can report potential problems, which management can address before the company finds itself in court.
She cautions against hiring members of an underutilized group solely to rectify underutilization because that can create new problems. For example, say a hospital deliberately hires less qualified male nurses in an attempt to eliminate underutilization. “In an effort to ensure both men and women are represented, significant adverse impact against female nurses could become statistically evident,” Dawson explains.
Contractors that adopt “solid hiring criteria,” actively recruit a diverse group of applicants, and hire the best qualified individuals will find that underutilization will be corrected over time, she says. “The bottom line is that affirmative action does not require recruiting and hiring unqualified people.” Instead, it is about “getting out and making that good-faith effort to recruit for underutilized groups. Typically, those groups continue to be minorities and females. The hiring effort, however, should not focus on race or sex, but instead on the best person for the job based upon nondiscriminatory factors.”
“Set objective criteria and then document,” Dawson adds, noting that contractors should be able to point to the specific knowledge, skills, and abilities that a successful applicant possesses and the lack thereof in unsuccessful applicants.