The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has announced a proposed modification to a final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.” The final rule has been in effect since December 10, 2020.
OFCCP has proposed rulemaking that aims to create a streamlined, efficient, and flexible process allowing the agency to use its resources strategically to remove barriers to equal employment opportunity. The 2020 rule codified two formal notices, the Predetermination Notice and the Notice of Violation, that the agency provides to federal contractors when it finds potential violations. These notices explain the concerns the agency has identified regarding noncompliance to federal contractors and give the contractor an opportunity to respond.
The 2020 rule also imposed inflexible evidentiary requirements early in the compliance evaluation process and attempted to codify complex evidentiary definitions for “qualitative” and “quantitative” evidence and other standards. In some instances, these heightened requirements for the pre-enforcement process go beyond what courts require for proof at trial.
The rigid evidentiary standards and definitions imposed by the 2020 rule impede OFCCP’s ability to provide contractors with early notification of indicators of discrimination. They also unnecessarily divert agency and contractor resources away from addressing discrimination. The 2020 rule’s standards did not assist workers and delayed the resolution of discrimination findings. The standards also create different evidentiary requirements for Executive Order 11246 matters than apply to Title VII matters, which is contrary to the approach generally followed by OFCCP and recognized in relevant case law.
OFCCP’s proposal would:
- rescind these rigid evidentiary standards, while OFCCP would continue to issue a Predetermination Notice describing the preliminary indicators of discrimination and other potential violations.
- clarify the use of the Predetermination Notice and the Notice of Violation as part of OFCCP’s pre-enforcement notice and conciliation procedures.
- return the Predetermination Notice response period to the 15-calendar day period in effect prior to the 2020 rule (which OFCCP may extend for good cause).
- retain the regulatory language regarding early resolution, which provides that contractors may waive notice procedures to enter directly into a conciliation agreement.
Together, these proposed modifications would restore flexibility to OFCCP’s pre-enforcement notice and conciliation procedures, promote efficiency in resolving cases, strengthen enforcement, and promote alignment of the standards governing OFCCP’s procedures with Title VII.
All public comments must be submitted by April 21, 2022.