Claiming it is now “a more effective and efficient civil rights enforcement agency,” the Office of Federal Contract Compliance Programs (OFCCP) recently announced that it had recovered $67.5 million for rejected applicants and employees during fiscal year 2008. Ninety-nine percent of the funds collected were in cases of “systemic discrimination” involving substantial numbers of applicants or employees subjected to allegedly discriminatory practices or policies.
FY 2008 also saw an increase in the number of OFCCP compliance reviews triggered by the agency’s Active Case Management (ACM) system. This system utilizes statistical tools to prioritize contractor establishments for review based on the probability that discrimination will be uncovered. Using this system, OFCCP can monitor a large portion of the federal contractor community in addition to efficiently identifying and resolving cases of systemic discrimination.
Contractors and subcontractors who are subject to OFCCP’s enforcement should recognize that the agency now focuses almost exclusively on discrimination instead of affirmative action. The reform agenda which will be prevalent in the Obama Administration will almost certainly result in more aggressive enforcement efforts by OFCCP and related federal agencies. Thus, employers should expect to see an even larger number of OFCCP compliance reviews, a continuing focus on systemic issues involving rejected applicants, and a renewed commitment by the agency to eliminating compensation discrimination. Careful preparation and consistent policies will ensure that contractors and subcontractors successfully navigate a compliance review conducted by a focused and empowered OFCCP.
Note: This article was published in the January/February 2009 issue of The Employment Law Authority.