What’s happening at EEOC and OFCCP? Increased resources for compliance and new areas of focus, says Leslie Silverman, former Vice Chair of the Equal Employment Opportunity Commission (EEOC).
Silverman, a partner at Proskauer, LLP, in Washington, D.C., offered her take on the Obama administration’s compliance tactics at the Society for Human Resource Management’s Employment Law and Legislative Conference held recently in Washington, D.C.
What’s Doing at EEOC?
At EEOC, there are a lot more investigators on the ground and more support given to them, Silverman says.
There has also been an increase in charge filings, Silverman notes. Retaliation has edged out race as the number one basis for filings. It’s not that there is more retaliation, she believes, but that the standards to bring a claim are less onerous—it’s a lot easier to meet that threshold.
EEOC’s top priority is its systemic discrimination cases (those that involve a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry).
EEOC’s commissioner charges and directed investigations (actions initiated by the commission, not responding to a specific charge from outside) are mostly directed to systemic cases, Silverman says. EEOC is hiring experts to help with these cases. Five new experts in systemic discrimination have been added recently, with 10 more to be hired.
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They often zero in on:
- Preemployment screening and employee selection procedures. There is particular attention to hiring since people often don’t know they’ve been discriminated against because they don’t get a chance to see the pool from which candidates are selected.
- ADA. In particular, EEOC expects companies to be flexible in dealing with leave and return-from-leave policies.
- ADEA. The focus is on hiring and retirement incentives.
- Pay equity and promotion. This is always an area of interest.
- Older workers. EEOC has found that they have fewer suits as compared to charges than they have in other areas, so they have identified this as an area to target.
Are You Targeted for a Systemic Investigation?
How would you know if you are targeted for a systemic investigation? Silverman gives some indicators:
- You get multiple charges with the same investigator.
- It is a commissioner charge or directed investigation.
- EEOC’s first request is a highly detailed request for data that’s technical enough that you have to go to IT to understand it.
What’s Up at OFCCP?
OFCCP (the Office of Federal Contract Compliance) has new leadership in the person of Director Patricia Shiu. She is an experienced litigator who favors strong enforcement and who is "proactive and aggressive." But she’s also interested in cooperation, says Silverman.
Like EEOC, OFCCP has more money for enforcement. Five statisticians have been hired along with several industrial psychologists.
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OFCCP priorities include:
- Evaluation of recruitment and placement results for individuals with disabilities. OFCCP would like to require federal contractors to do more substantive analysis, with numerical targets and revised recordkeeping requirements.
- Greater scrutiny of veterans’ issues. Again, OFCCP would like to see more substantive analysis and numerical targets.
- Greater emphasis on self-audit. They want to see you doing this, Silverman says.
- Continued focus on positive outreach, recruitment, and hiring.
- Good-faith compliance efforts. OFCCP will be reviewing affirmative action plans for substance and looking for actual proactive steps that contractors have taken. "I placed an ad" isn’t good enough. What did you do to follow through?
Also, if you are a recipient of ARRA Funds (American Recovery and Reinvestment Act), be careful, Silverman says. OFCCP is aggressively auditing recipients of these funds.
In tomorrow’s Advisor, Silverman’s tips on new ADA (Americans with Disabilities Act) compliance challenges, and an introduction to a unique training program that will ensure that your managers do the right thing time after time.