Questions and Answers
OFCCP Questions for May 10 meeting with NILG
EEO-1 Reporting Guidelines
1) QUESTION: When will OFCCP issue a response to the EEOC's new EEO-1 reporting categories?
RESPONSE: OFCCP is currently working with the Office of the Solicitor on a Notice of Proposed Rulemaking. The NPRM will address EEOC’s revised EEO-1 Report, including the new race and ethnicity classification categories and the new job categories. As soon as we reach consensus on the Notice document and clear it through the Office of Management and Budget, we will publish the NPRM in the Federal Register for public comment. We have no firm date for this publication but we hope to publish the NPRM this summer.
2) QUESTION: The new EEO-1 requirement that race and ethnic information is to be reported for seven race and ethnic classifications begins September 1, 2007. My question is will the OFCCP and EEOC issue a statement that the Department of Education has jurisdiction regarding this requirement for educational institutions? [You may know that State and local governments, school systems, and educational institutions are excluded from this new requirement. The Department of Education (DOE) for example has indicated they will require contractors to report on the seven ethnic classifications in 2009. The DOE requires educational institutions report race and ethnic employment data via the Integrated Postsecondary Education Data System (IPEDS) report.]
RESPONSE: At this time, there are no plans to address the Department of Education's jurisdiction in the matter of race and ethnic reporting for educational institutions. However, such issues can be raised during the comment period following publication of OFCCP's Notice of Proposed Rulemaking (NPRM). The issues would then be discussed in the Final Rule.
3) QUESTION: We still don’t have the clear guidance on how to build Affirmative Actions Programs (AAPs) based on the new race/ethnic groupings. When can we expect guidelines?
RESPONSE: When the NPRM is published, it will seek public comment and include proposed guidance regarding the new race and ethnicity classification categories and the new job categories. OFCCP will carefully examine the public comments and develop a Final Rule that provides clear guidance on how to build the new AAPs. Rest assured, OFCCP will provide contractors a reasonable transition period before any of the changes become effective. In the meantime, contractors should continue to follow current AAP practices.
4) QUESTION: What's the current status of the OFCCP adopting the new ethnicity changes from the EEOC? Would there be any consequences if a contract has already adjusted to those?
RESPONSE: OFCCP may not specifically "adopt" word-for-word the new ethnicity changes from the EEOC. However, OFCCP will make every effort to promote government-wide consistency when it proposes its standards for the maintenance and reporting of aggregate workforce data on race and ethnicity. If a Federal contractor has implemented changes, i.e., resurveyed its workforce in anticipation of submitting the first EEO-1 Report in September 2007 in the new format, OFCCP will review the changes to a contractor's workforce data during a compliance evaluation. In the past, OFCCP has accepted data and viewed each compliance evaluation on a case-by-case basis and could be expected to do the same regarding any future regulatory changes.
5) QUESTION: Would like to know if OFCCP is considering changing the race categories to mirror the new EEO categories. Seem to recall that at our meeting last fall, someone from OFCCP saying that they were not planning to change their race categories. If OFCCP is not planning to change, I would be interested in finding out how other employers are tracking the race of their employees.
RESPONSE: OFCCP may not specifically propose changes to its race categories to precisely "mirror" the new revised EEO-1 categories developed by the EEOC. However, to promote consistency for the reporting and recordkeeping of aggregate workforce racial and ethnic data, OFCCP will consider amending its regulations to correspond with the collection and reporting standards employers use to complete the revised EEO-1 Report.
Compensation Analysis
6) QUESTION: Is OFCCP conducting pooled regressions on the compensation of an entire work force before conducting a regression on individual jobs or SSEGs? If no problems are identified in the pooled regression, is the agency proceeding to a regression on individual job titles or SSEGs?
RESPONSE: In general no, OFFCP has identified a tiered approach to our review that begins at the Desk Audit by looking at differences in pay averages by job group, SSEGs (if provided by the contractor) or other pay divisions as supplied in the submission. If a Desk Audit indicator is detected, OFCCP collects individual 12-item pay data including the job titles and conducts a regression analysis of each job title depending on the number of employees in each. OFCCP will conduct an analysis of each SSEG along with job title reviews if such groupings are provided in the second submission. OFFCP also does some automated aggregated analyses, including pooled regressions to look at whether broader issues might exist, but these analyses are not the mainstay of OFCCP’s tiered screening system. Once individual title and/or SSEG indicators are identified, and in some cases when more aggregate findings are identified, OFCCP then begins to focus on specific jobs, works as needed to identify SSEGs through job descriptions, employee interviews, and on-site observation, collects the pay factors, and proceeds with other investigative activities.
7) QUESTION: Compliance officers sometimes insist on grouping compensation data based on Job Grouping; however, job groups are done to match the workforce to the census data, not to define how companies' pay structures are based in. Why are they insisting this?
RESPONSE: OFCCP is not the full driving force behind this issue; contractors submit their Desk Audit submissions typically by salary grade or by AAP job group to require that we begin the investigation at the Desk Audit in this manner. In general, once we are able to obtain more detailed data we use it. With that said, contractors must realize that the Desk Audit review is a large scale expedited process that is designed reduce contractor burden and provide for an efficient use of OFCCP resources given the large number of federal contractors we are required to review. As such, while ideally some contractors might benefit from a fully customized review of the data they submit at the desk audit when they provide something other than AAP job group or grade, a more thoughtful review is not always possible under our operational constraints and the CO may ask for data that better fits with the process in place. Likewise, one must realize the desk audit is a screen. Yes, having an indicator has implications on the contractors affected, but we both have to realize it is not a completely accurate evaluation and OFCCP’s subsequent investigational methods are designed to study the data in greater detail to reach an accurate resolution. It is inevitable that with any screening based on limited data, some contractors that have completely fair practices; will receive indicators likewise, others that require OFCCP intervention will get a pass.
8) QUESTION: Have many contractors been submitting multiple regression analysis on pay in lieu of Item #11 in response to an audit request and if so, have they been prepared properly in the OFCCP’s opinion?
RESPONSE: No. Contractors are not taking advantage of the voluntary compliance coordination program.
9) QUESTION: Is there any truth to the rumor that several regions (at least half) are now trying to dismantle the statistics division and move away from a focus on compensation?
RESPONSE: We just hired a statistician for DSA in the Mid-Atlantic Region and we are posting openings for other regions.
10) QUESTION: In compliance evaluations, why are some district/regions requesting the comprehensive “12 item compensation related” data without sending a notice to the contractor that there are any indicators of pay difference?
RESPONSE: This gets into the pros and cons of including the desk audit findings in the letter, which we are not doing. Under our current protocols, field officers are not required to indicate the specifics of the desk audit findings in requesting the 12 item data. However, contractors will only receive such a request if the Desk Audit shows an indicator.
11) QUESTION: Why are some regions using the Affirmative Action Job Groups to determine pay differences when it is clear that there are differences ( even when looking at job titles) in the skill, effort responsibility and working conditions of jobs in an affirmative action job group?
RESPONSE: Same question as above, same answer. (#7)
12) QUESTION: If a contractor did a voluntary compensation analysis submittal in response to a compliance evaluation with an explanation of the compensation system and analysis why are compliance officers continuing to do an inappropriate analysis of the compensation data?
RESPONSE: To my knowledge contractors are not requesting voluntary compliance, so we do not understand the question. Field staff are following the protocols directed by the agency and our division of statistical analyses is conducting the 12-item data review using the methods I provided previously.
13) QUESTION: Why do compliance officers keep on using the 80% test to determine problem areas, especially in incumbency v. availability and in Adverse Impact analyses? The 80% test was probably adequate before the advent of software applications, which can provide more adequate statistical methods (i.e., Two-Standard Deviation or the Exact Binomial) for more meaningful results.
RESPONSE: While our impact ratio analysis includes the 80 percent test, whether a case is investigated further requires that we have other forms of evidence of discrimination and/or a formal statistical test that shows a gender or race/ethnicity group specific significance level of 2.5 percent or less (corresponding to the 2 standard deviation rule depending on what test is used) that has been the standard in the legal arena since Hazelwood (Supreme Court 1977) and Connecticut vs. Teal (Supreme Court 1982).
Veterans
14) QUESTON: I would appreciate it if Charles James could provide guidance on the following information on AJB. Basically, eQuest is a company that businesses use to handle job postings, but it looks like Navisite (the company that runs AJB) has come up with an alternative for posting. At first glance this looks like an alternative, but we need to investigate to see if DOL is in agreement with this approach.
eQuest Announces No Interruption in Job Delivery Services To America's Job Bank San Ramon, CA - February 27, 2007 - eQuest, the global leader in job posting and Internet media management services, announced today that it will continue its delivery services to America's Job Bank when the funding for the AJB program ends in July, 2007.
RESPONSE: Although OFCCP cannot specify information contained in a draft rule, the OFCCP pending Final Rule implementing the requirements of the Jobs for Veterans Act (JVA) will address your concerns about complying with the job listing requirements after the closing of America’s Job Bank (AJB).
15) QUESTION: When does the OFCCP plan to put something out updating the Vets AAP requirements?
RESPONSE: The Department of Labor Spring 2007 Regulatory Agenda states that the Final Rule implementing the requirements of the Jobs for Veterans Act is expected to be published in June 2007. OFCCP hopes to have the Final Rule published by that date.
16) QUESTION: It seems like some vendors are advertising themselves as substitutes for AJB, yet on further review, to become a “member” of the vendor’s association, contractors are charged $10,000 - $12,000. The other end of the spectrum is sending job announcements to some 3,000 agencies. Both of these alternatives seem EXTREMELY burdensome for contractors. Is there an alternative that the OFCCP can offer?
RESPONSE: Although OFCCP cannot specify information contained in a draft rule, rest assured that the Final Rule implementing the requirements of the Jobs for Veterans Act will address your concerns about complying with the job listing requirements after AJB.
17) QUESTION: I have heard from other contractors that the OFCCP is placing added scrutiny to reviewing the AAP for Veterans and Disabled. Is this in anticipation of AJB going away?
RESPONSE: OFCCP has a long history of constantly reviewing programs and procedures to be more effective and provide to best compliance assistance to contractors and other stakeholders. From time to time, OFCCP will focus on certain programs in light of limited resources. It would be a customary business practice for OFCCP to review the AAPs for 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; programs.
18) QUESTION: What recommendations would you have in the area of additional outreach for Veterans?
RESPONSE: OFCCP recommends that contractors follow the regulations in 41 CFR 60-240.44(f), concerning outreach and positive recruitment:
•Create partnership arrangements with local recruiting sources for referral of qualified covered veteran applicants.
•Establish a liaison with the Local Veterans' Employment Representative or his or her designee in the local employment service office nearest the contractor's establishment to facilitate mandatory job listing requirements.
•Recruit covered student veterans at educational institutions.
•Create partnership arrangements with veterans' service organizations to employ qualified covered veterans.
•Advertise job openings in the local community and recruit qualified covered veterans during company career days and/or related activities in contractor communities.
•Encourage subcontractors to seek qualified covered veterans for employment opportunities.
19) QUESTION: Any plans to Combine VET100 and VET100A?
RESPONSE: The Veterans’ Employment and Training Service (VETS) controls the format of the VETS-100 and VETS-100A Reports. We cannot comment on any of their proposals.
Internet Applicant
20) QUESTION: Has the OFCCP found many issues with contractor's implementations of record keeping for internet applicants?
RESPONSE: No, OFCCP has not found many issues with these requirements to date. There are a number of reasons for this, including when the contractor was scheduled, and whether the initial desk audit analysis indicates potential hiring problems. I would also like to note that OFCCP has provided extensive compliance assistance to contractors on the internet applicant regulation.
21) QUESTION: How are the internet applicant recordkeeping requirements going? What are the most common violations that you are seeing contractors make?
RESPONSE: As indicated in my answer to the previous question, it may be some time before OFCCP is fully aware of contractor compliance with these regulations, since we have not embarked on investigations solely to look at this issue. Rather it would arise during the course of a compliance evaluation indicating potential discrimination in hiring. That said, we have seen some problems that involve internet applicants, but these are not necessarily unique to just internet applicants. They include (1) reporting the same number of applicants as hires, (2) a high number of applicants where race and gender are unknown, (3) failure to invite internet applicants to self-identify during the application process, and (4) failure to maintain employment records, such as applications, resumes, and job requisitions.
Miscellaneous
22) QUESTION: Compliance officers site lack of outreach efforts or lack of sufficient minority/women applicants, and typically provide outreach sources that are good only for documentation, not real sources that produce good outcome. Is there any plan to connect the efforts with other agencies such as Women's Bureau?
RESPONSE: Compliance officers do attempt to identify appropriate outreach resources and compliance assistance sessions are planned and conducted for agencies and programs that can serve as referral sources. While we have no plans to connect formally at the national level with other agencies, such as the Women’s Bureau, we know that many times these connections are made at the local level where they can provide a meaningful resource for contractors. Additionally, effective outreach efforts and linkages are recognized by OFCCP through the EPIC (Exceptional Public Interest Contribution) awards made annually.
23) QUESTION: Are there any planned changes for the requirements concerning FAAPs?
RESPONSE: Updating of the FAAP Directive is underway. However, was there a particular requirement in question?
24) QUESTION: In what areas has the OFCCP seen most violations across the last 6 months?
RESPONSE: Violations resulting in hiring discrimination and recordkeeping continue to be the most prevalent violations.
For the first half of FY 2007, our records indicate that the most frequently cited technical violations are written AAP, recordkeeping and support data, and recruitment. Violations in these three areas accounted for slightly more than 60 percent of all violations cited.
25) QUESTION: Will there be any more office closures around the country. Cleveland office has been closed in the Midwest; Little Rock has been closed in SWARM; Albuquerque is rumored to be closing; and the Midwest region has very few managers to manage the work. Is there some kind of reorganization plan underway for the OFCCP?
RESPONSE: There is no formal plan for reorganization underway. Offices have closed as staff diminishes and as contractor density has shifted. However, we are constantly examining strategies to improve operating efficiencies and will communicate to our publics any changes that affect our organizational structures.
26) QUESTION: Some regions are getting extremely aggressive with contractors and threatening rather than working as professionals. How are contractors supposed to react to such tactics?
RESPONSE: If there is a specific instance generating a complaint about the conduct of a review, it should be brought to the attention of the regional or national office as appropriate. As we implement reviews, we expect mutual cooperation and professionalism in our staff and in our contractor community.
27) QUESTION: Why are some districts/regions asking for the electronic submission of names of incumbent employees when the contractor supplied id numbers to the agency?
RESPONSE: We are asking contractors to provide electronic submission of personnel data if the data are in an electronic format. If there are concerns resulting from a specific review, they should be addressed through the regional or national office.
28) QUESTION: Why do compliance officers keep on using the 80% test to determine problem areas, especially in incumbency v. availability and in Adverse Impact analyses? The 80% test was probably adequate before the advent of software applications, which can provide more adequate statistical methods (i.e., Two-Standard Deviation or the Exact Binomial) for more meaningful results.
RESPONSE: Compliance officers use a variety of analyses including the statistical tests mentioned to determine problem areas. In most cases more than one approach is used and certainly when more specific data is requested, than that presented in an AAP, a more sophisticated analytical approach is employed.
29) QUESTION: The OFCCP recently announced that it would be performing on-site reviews of every 20th contractor selected for an audit. Please describe how those reviews will be conducted. For example, will the Compliance Officer have a specific list of questions or ask to see specific types of documents (like the old Compliance Check) or will it be completely open-ended with discretion on how to conduct it left to the Compliance Officer?
RESPONSE: There are no new or unique requirements for these onsite reviews. Onsite reviews have always been conducted for a certain number of cases. These reviews will investigate potential problems identified during the desk audit, verify the contractor’s implementation of its AAPS and begin to resolve violations, if any. They will follow the procedures outlined in Chapter 3 of the Federal Contract Compliance Manual (FCCM). Particular emphasis will be placed on assuring compliance with the provisions of Sections 41 CFR 60-250 and 41 CFR 60-741 – a contractor’s obligation for special disabled and other protected veterans and persons with disabilities. You will recall that prior to the promulgation of our revised regulations in 2000; all compliance evaluations had an onsite component.
30) QUESTION: Does the agency balance the publicizing of negative as well as positive conclusions of their litigation efforts?
RESPONSE: In the past few years we have had no negative litigation decisions on the merits of cases. And, I am unaware of any negative litigation decisions going as far back as FY 2000 or even further. Most of our cases settle during the course of litigation. Having said that, would someone care to characterize negative v positive conclusions of litigation efforts?
31) QUESTION: How does litigation affect the Agency’s future interactions with Respondents?
RESPONSE: Litigation represents a necessary component of the OFCCP enforcement arm. Litigation provides closure on contested issues that could not be settled by conciliation. It is used when necessary, but far less often than case conciliation methods. Because litigation is only used when necessary, there is little negative impact on future interactions with contractors who are willing to work cooperatively with OFCCP in compliance with the laws we enforce.
32) QUESTION: What triggers a Corporate Management Review? And what are they typically requesting from the Contractor?
RESPONSE: OFCCP’s scheduling procedures include the identification of corporate headquarters for Corporate Management Compliance Evaluations (CMCE) reviews. Supply and service contractors with 4,000 or more employees in the organization and more than one reporting subordinate establishment are included on the CMCE List. Those corporate headquarters that had been reviewed at any time more than 24 months before the list was developed are placed on the list, ranked from earliest date of prior evaluation completion to most recent date of evaluation completion.
For more information about Corporate Management Reviews, I suggest that you may want to consult the Frequently Asked Questions Section and Chapter 5 of the Federal Contract Compliance Manual (FCCM) on our web site.
33) QUESTION: Can you provide an update on the possible outsourcing of the OFCCP work; i.e., third party vendors performing desk audits, etc.?
RESPONSE: There is nothing in our current plan for outsourcing these functions, and Final plans about future outsourcing are still pending. However, as a part of the DOL’s competitive sourcing plan, OFCCP is examining our processes to assure that we leverage our expertise, given reduced staffing levels, in the most efficient manner possible.
34) QUESTION: Can you explain Contractor’s requirements to comply with the new Veterans regulations?
RESPONSE: The new Contractors requirements under the JVA are as follows:
· Increase the coverage threshold from a contract of $25,000 or more to a contract of $100,000 or more;
o The JVA increased the coverage threshold from a single contract of $25,000 or more to a single contract of $100,000 or more;
o This increase in coverage threshold applies only to Government contracts entered into or modified on or after December 1, 2003.
· Change the categories of veterans protected under the law;
o Eliminated the category of Vietnam era veterans from coverage under VEVRAA.
o Added a new category of covered veterans -- “veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.”
o Expanded coverage to include all veterans with service-connected disabilities.
o Expanded the coverage of “recently separated veterans” from one to three years after discharge or release from active duty
· Require that the Secretary of Labor promulgate regulations that obligate each covered contractor to list all of its employment openings with “the appropriate employment service delivery system.”
o Contractors may no longer list employment openings solely with America’s Job Bank as an option for complying with the mandatory job listing requirement.
o The OFCCP Final Rule will explain in detail how contractors may comply with the new job listing requirements.
35) QUESTION: What options do you recommend employers use to comply with VEVRAA job posting since the AJB is being eliminated in June?
RESPONSE: At this time, we cannot provide you with information on specific procedures that will satisfy the job listing requirement. OFCCP will address this issue in the pending JVA Final Rule. The Final Rule is currently in Department clearance. Until the Final Rule is published, contractors may continue to use America’s Job Bank, or use the appropriate local employment service office of the state employment security agency wherein the opening occurs to list job openings. After AJB closes and prior to the publication of the Final Rule, contractors must use the appropriate local employment service office of the state employment security agency wherein the opening occurs to list their job openings.
36) QUESTION: Any anticipated Agency staff changes you can share?
RESPONSE: I am sure that you are all aware that William Smitherman has been selected for the position of Regional Director in the Pacific Region and Brian Lalli has been appointed as my new Special Assistant. Those are the senior leadership recently changed.
37) QUESTION: How can ILG’s encourage greater OFCCP participation at meetings?
RESPONSE: ILGs were originally envisioned as an important way for improving communications and strengthening relationships between OFCCP and federal contractors. OFCCP introduced the ILG initiative to help remove recurring barriers to program effectiveness and to promote greater voluntary compliance. These are still important goals for us today and OFCCP wishes to continue to support this valued forum for discussion. We urge all ILGs to have a standing representation of OFCCP district and regional managers at your meetings. You can call on us to provide training and other compliance assistance supports.
NILG BOARD QUESTIONS TO THE EEOC, SUBMITTED FOR THE 5/10/07 MEETING
1. QUESTION: Please explain how EEOC determines when to litigate a complaint or dismiss, and issue a Right-to-Sue Letter. I believe that a large number of legitimate complaints are dismissed by EEOC and returned to the complainant. Many of those complaints are dropped due to a lack of funds to hire an attorney. I see the financial benefits for law firms but limited benefits for the complainants.
RESPONSE: EEOC’s enforcement and legal staff work together closely to identify cases that may be appropriate for litigation. These consultations occur as appropriate at various stages of the charge process. Under the EEOC’s Priority Charge Handling Procedures, the charges that we receive are classified based on likely merit. After a charge is investigated, if the EEOC finds reasonable cause to believe that discrimination has occurred, the respondent is given an opportunity to conciliate the case and resolve it without litigation. If conciliation efforts are not successful, a case is then considered for litigation.
Our litigation program is very selective. In the last fiscal year, the EEOC filed 371 lawsuits on the merits. The guiding principle of the Commission’s enforcement and litigation strategy is to use its limited litigation resources to advance broad public interests - - addressing legal issues important to the enforcement of our statutes; litigating when it is better positioned than private plaintiffs to obtain broad-based relief; and litigating when it is better positioned to obtain relief otherwise unavailable to private plaintiffs. Litigation decisions must, therefore, consider these factors when determining which cases to litigate. When the EEOC does not bring suit, we can assist charging parties in obtaining referrals to private counsel who may bring suit on their behalf.
2. QUESTION: Will the EEOC require resurveying employees for the 2008 EEO-1 submissions?
RESPONSE: Although the EEOC encourages employers to resurvey current employees as soon as possible, the EEOC will not require resurveying for the September 30, 2008 EEO-1 report. Opportunities to resurvey should be used as soon as possible. For example, an employer that periodically asks its employees to update their personal information may use these periodic requests to ask employees to confidentially self-identify using the new EEO-1 race and ethnic categories. Alternatively, an employer could provide a page on its internal (private) website, where employees could voluntarily and confidentially self-identify. Other methods that achieve the same result would be acceptable.
3. QUESTION: Are they any upcoming changes [to the EEO-1 report] from the EEOC? And, if so, will they be in conjunction with the OFCCP if applicable?
RESPONSE: The new version of the EEO-1 report has been authorized under the Paperwork Reduction Act (PRA) for three years, through January 2009. PRA authorization routinely extends for three years. OFCCP was a part of the discussions leading up to these EEO-1 revisions. They were aware of the changes contemplated.
I understand that OFCCP stated in its current Regulatory Agenda that it now contemplates a June 2007 publication of its NPRM about affirmative action requirements and the EEO-1.
4. QUESTION: Is there an EEOC initiative for the issuance of Commissioner’s charges based on EEO-1 Report information? If so, please describe.
RESPONSE: This question may be referring to the Commission’s new Systemic Initiative, which was adopted in April 2006. This initiative involves use of EEO-1 report data, but it is a broader endeavor. It is the product of an exhaustive and comprehensive study by an internal task force led by Commissioner Leslie Silverman, now the Vice Chair. Its adoption is a reaffirmation of the Commission’s commitment to combating systemic discrimination. It ensures that every district will be vigorously pursuing systemic cases and that the EEOC will have a coordinated, strategic, and effective approach to these cases. A systemic case is defined as a pattern or practice, policy, and/or class case where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.
Under its reinvigorated systemic program, the EEOC is not simply waiting for the big cases to walk in the door. We have put plans and procedures in place to identify and develop systemic cases and have deployed resources to support these efforts. This includes more strategic use of EEO-1 report data. As part of its expanded use of technology and information systems to identify systemic discrimination, the EEOC is integrating EEO-1 reports with charge data to more readily identify potential systemic issues. EEO-1 report data, however, is just one source of information that EEOC uses in identifying systemic discrimination.
Another key feature of the systemic program is that the district offices are expanding their efforts to partner with the plaintiff’s bar, advocacy groups, and other state and federal agencies. They are also reaching out to employer groups to encourage employers to identify and address any discriminatory practices. The EEOC will staff systemic lawsuits based on the needs of the case, rather than based on the office where the case arose. We call this the “national law firm” model. This will result in the district offices improving how they work with each other, allowing the EEOC to make better use of existing expertise and cultivate staff to develop additional expertise nationwide.
5. QUESTION: Can you update us on the status of the EEOC’s Initiative to raise public awareness about the persistence of race discrimination in employment?
RESPONSE: EEOC Chair Naomi Earp launched the national initiative called E-RACE - Eradicating Racism and Colorism from Employment - at a public meeting on February 28, 2007. EEOC’s new E-RACE initiative seeks to raise public awareness of race discrimination by implementing new strategies to strengthen enforcement of Title VII and advance the statutory right to a workplace free of race and color discrimination. At the meeting, invited experts addressed race and color discrimination in the 21st century workplace. Additionally, EEOC regional attorneys from Chicago, Dallas, Los Angeles and San Francisco made presentations along with charging parties from recent cases. EEOC has also launched a new web page regarding the E-RACE Initiative on its public website and has produced a new 12 ½ minute video “Advancing Justice and Opportunity in the Workplace”, which includes the very compelling testimony of the charging parties who testified at the February 28th Commission meeting. The video has been sent to every EEOC field office and will be used in ongoing outreach and education efforts. In addition, a workgroup of EEOC outreach and technical assistance staff is developing outreach and educational materials to raise public awareness about the persistence of race and color discrimination in employment.
E-RACE Objectives: The E-RACE Initiative is designed to improve EEOC’s efforts to ensure that workplaces are free of race and color discrimination. Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.
Additionally, the Commission will combine the objectives of E-RACE with existing EEOC initiatives. For example, the Commission will integrate the goals of the Systemic Initiative by addressing race and color issues with class and systemic implications. It will incorporate the principles of the Youth@Work Initiative by combating disparate treatment of youth based on race and color. And, the Commission will complement the outreach and enforcement efforts of the LEAD Initiative by challenging exclusionary employment policies that adversely impact people of color who also have disabilities (in both the private and public sectors). Finally, the Commission will strengthen partnerships with employee advocates and state and local human rights commissions and increase its outreach to human resource professionals and employer groups to address race and color discrimination in the workplace.
With respect to EEOC’s litigation program, the Commission is continuing to publicize significant resolutions of race and color discrimination cases so that the public will be better informed about how these forms of discrimination manifest themselves today, and so that employers can take action to prevent the recurrence of race and color discrimination.
6. QUESTION: Does the agency balance the publicizing of negative as well as positive conclusions of their litigation efforts?
RESPONSE: The EEOC pursues litigation only as a last resort, after exhausting all efforts to reach voluntary settlement through conciliation. It should be noted that under our statute, conciliation is a confidential process and conciliation agreements are not public. At the point the agency files a lawsuit, a conflict has become public, and the EEOC generally issues a news release announcing its action and describing the claims in the suit and the cause for concern. The news release serves not only to publicize a particular case, but to inform and educate employers and the public on often key discrimination issues. Ninety percent of EEOC litigation results in a favorable outcome for the agency through either settlements or verdicts. We have a high rate of successful appeals in those cases that are initially dismissed in the trial court on summary judgment.
We believe it is important to publicize successful resolutions and decisions in cases so that public awareness of the law is increased and employers and employees understand the kinds of practices and policies that may violate the law. This also helps promote the voluntary resolution of cases in the Commission’s conciliation process. The publicity of positive resolutions can be a significant deterrent to unlawful discrimination. When cases are resolved cooperatively with the defendant employer, the Commission can include in its press release, if appropriate, a discussion of the positive steps being taken by the employer to institute new policies and procedures to ensure its commitment to equal employment opportunity.
We generally do not issue news releases announcing what we consider adverse litigation results, but the agency responds fully to any inquiries regarding such results. We include negative outcomes in the OGC annual reports.
7. QUESTION: How does litigation affect the Agency’s future interactions with Respondents?
RESPONSE: Through its enforcement efforts, the Commission does more than seek remedial relief on behalf of victims of discrimination. We also endeavor to secure prospective changes in employment policies and practices to ensure that discrimination does not recur. Thus, in EEOC’s view, litigation should act as a catalyst to achieve long-lasting improvements in employment practices and to prevent future instances of employment discrimination. Other ways in which respondents have moved forward from litigation to more amicable interactions with the agency have included situations in which litigation has been the spur to increasing the employer participation in EEOC’s mediation program, which resolves charges at an early stage without adversarial proceedings, and in EEOC’s training programs, which include customer-specific training provided on-site for the employer.
When a charge of discrimination is received against an employer, the EEOC would consider whether any past litigation against the employer has relevance to the issues raised in the charge. This may be the case, for example, if the new charge alleges retaliation for the individual’s participation in some way in the prior litigation, or if the charge alleges a recurring pattern of unlawful conduct. Each situation would be evaluated on a case-by-case basis.
8. QUESTION: What is the Commission’s view about using EEO-1 data to pursue systemic discrimination cases and testers for hiring cases?
RESPONSE: The Commission often uses EEO-1 data as a source of basic information about a particular establishment or company and comparably situated companies. In addition to providing basic snapshots of an establishment's or company's race and ethnic profile within broad occupational categories, the EEO-1 data is also used to make comparisons among similar establishments or companies. EEO-1 data is thus very useful in systemic cases in conjunction with other information and, in particular, as an indicator to focus further investigative efforts.
To date the Commission has not itself used testers as a way to identify discriminatory practices in hiring; however, since the 1990s the Commission’s policy guidance provides that testers have standing to bring charges of discrimination to the Commission. Thus, the Commission would accept and investigate charges filed by a third-party or organization engaged in “testing” for hiring discrimination. In addition, we have also brought cases on behalf of “inadvertent” testers - individuals who applied for a job, were denied the job and inadvertently discover that someone else with similar qualifications was hired, and therefore file a charge with EEOC.
9. QUESTION: Has the Commission received any allegations of misuse of diversity in hiring and promotion as suggested by the Center for Equal Opportunity?
RESPONSE: The Commission secures information about charges through our Information Management System (IMS), a computerized tracking system on charges filed with our 53 field offices. Generally, the IMS tracks charges based on the most common or frequently alleged claim of discrimination, disability, race, national origin, age or religious discrimination.
Over the years, EEOC has received relatively few charges that alleged misuse of diversity programs in hiring and promotion. However, the agency’s IMS does not track these so called “reverse discrimination charges.” To secure a specific count on the number of misuse of diversity in hiring and promotion charges, agency staff has to manually examine charges in various subsets of the agency’s charge inventory.
Although the IMS database has no systematic method for tracking reverse discrimination or charges related to affirmative action, the notes created at intake or during investigation do provide indications of charges related to Charging Parties’ perceptions of reverse discrimination or of employment actions related to affirmative action concerns. The array below shows the number of charges where such concerns were raised and annotated. It should be noted that this is a very small number of the overall charges received by EEOC.
FY2003 FY2004 FY2005 FY2006 FY2007 Total
2 5 6 7 5 25
During the same period, 78 inquiries were received concerning this subject, but only 25 resulted in charges filed.
10. QUESTION: How can the NILG assist the EEOC in recruitment of candidates for the Freedom to Compete Award?
RESPONSE: Directors of EEOC field offices, particularly the larger offices, meet regularly with local ILGs and other employer groups. At these conferences, EEOC Directors and their managers describe the Freedom to Compete Award and explain how employers and other organizations may apply. The Commission would appreciate the National ILG promoting the award to its membership and forwarding material on the Freedom to Compete Award program to each local chapter and each organization that is a member of the National ILG. Also, at quarterly meetings of the individual ILG chapters and during regularly scheduled conference calls within the ILG network, it would be helpful if information on the FTC Awards program were provided to the members and if the ILG board could encourage the ILG members to apply for the FTC award. In this way, the NILG would be reinforcing EEOC’s message on the Freedom to Compete Award.
11. QUESTION: How can local ILGs encourage greater EEOC participation in meetings?
RESPONSE: We believe that by educating employers as to their responsibilities under the fair employment laws, we can prevent unlawful employment discrimination from occurring in the first place. Therefore, outreach and technical assistance to the employer community is one of the agency's highest priorities. EEOC currently has 15 District Offices and the Washington Field Office overseeing approximately 35 smaller offices. Each of the District Offices and many of the satellite offices reporting to them conduct extensive outreach to employers, and in many cases, work with the local ILGs. For example, a Senior Headquarters Official and the Philadelphia District Director for the last 20 years have met twice a year with the Mid-Atlantic ILG. A wide array of policy and operational issues are discussed at these meetings; the Directors of the Baltimore Field Office and Pittsburgh Area Office (which report to Philadelphia) have frequently attended these sessions. In addition, the Detroit Field Office and the Southeastern Michigan ILG have met quarterly for several years; the Newark Area Office meets regularly with the New Jersey ILG; the Houston District Office meets regularly with the Greater Houston ILG; and the Louisville Area Office meets regularly with the Kentucky ILG. Local ILGs wishing to meet with EEOC representatives should contact the District Director for that jurisdiction to request a meeting. Alternatively, an ILG representative can contact Karin Pedrick, Deputy Director of the Office of Communications and Legislative Affairs, to express its interest in EEOC’s participation in a local ILG meeting, and she will be glad to coordinate with the appropriate offices to assist you.
