Category Archives: Adverse Impact

The Future of the OFCCP, the Executive Order and Affirmative Action

It is with some trepidation that I even bring up this topic. However, as a practitioner of close to 40 years in the areas of affirmative action and EEO, I find myself more uncertain than ever before about the future of the Office of Federal Contract Compliance Programs (OFCCP), Executive Order (EO) 11246, and the legal principles behind affirmative action.

Ever since the election of Donald Trump, the future of affirmative action and the OFCCP has been a topic of discussion and conjecture in the legal, HR, and various stakeholder communities.  To the extent that commentators have been willing to weigh-in on the topic, most predictions have come down on the side that both the OFCCP and affirmative action as a legal principle are for the most part, “safe.”  However, just how “safe” things really are is far from certain.

On March 13, 2017, President Trump signed a new Executive Order directing the head of the Office of Management and Budget (OMB) to review every executive branch agency to identify “where money can be saved and services improved.”  OMB is to consider “… (ii) whether some or all of the functions of an agency, a component, or a program are redundant, including with those of another agency, component, or program…” and “… (iii) whether certain administrative capabilities necessary for operating an agency, a component, or a program are redundant with those of another agency, component, or program…”

Then, on March 16, 2017, President Trump’s 2017 budget was released.   The budget proposes a 21% reduction in funds for the Department of Labor (DOL).  There is nothing that indicates that the reductions will be spread evenly throughout the Department.  Some agencies and programs could experience larger reductions than others.

Six days later on March 22, 2017, Alexander Acosta, the nominee for Secretary of Labor, had his Senate confirmation hearing.  During the hearing, there was no discussion regarding his take on the future of the OFCCP.  However, in response to questioning, Acosta responded that he would follow the March 13, 2017 executive order.  Continue reading The Future of the OFCCP, the Executive Order and Affirmative Action

“Being Big is Worse Than Being Bad”

“Being Big Is Worse Than Being Bad!”1

The question is what happens to the size of the contractor’s applicant pool if the TSF’s recruiting efforts are included? If a contractor is taking on 100-200 temps during the year, how many individuals does the TSF have to recruit to find a sufficient number who meet the basic qualifications for the position?  400?  800?  1,200?  Is there a downside of having large applicant pools?  Isn’t having more choices a good thing?  Does the contractor want to include an additional 1,200 individuals recruited by the TSF in the contractor’s own applicant pool?  In reality, there are real and potentially costly implications for agreeing to consider the TSF’s recruiting efforts as part of the contractor’s applicant flow.   Continue reading “Being Big is Worse Than Being Bad”

Applicant Pools, Adverse Impact and $1 Million

On June 12th, the OFCCP announced a $1 million settlement of a claim of systemic race discrimination in hiring against the Lincoln Electric Company in Cleveland, OH. The Agency alleged that the Company had discriminated against 5,557 African-American applicants for entry-level manufacturing production jobs by using an unvalidated selection process involving the use of various assessment instruments.  The settlement also calls for the Company to hire 48 members of the affected class. 

The Agency found that the Company’s selection process involved a “Turnover Risk Index” that had the effect of screening out African-American applicants at a disparate rate as opposed to non-African-Americans. The selection process involved asking candidates about their willingness to work rotating shifts as well as questions about drug use and criminal convictions.  This was the second time in 11 years that the Company settled a $1 million claim of unlawful discrimination in entry-level hiring.  Continue reading Applicant Pools, Adverse Impact and $1 Million