Friday, September 30, 2022: The air goes out of the OFCCP’s tires in fiscal year 2022 as allegations of unlawful discrimination fall to new lows
It has been a steady march for OFCCP since OFCCP Trump: in the just-ended fiscal year 2022 (OFCCP Biden’s first full year – President Biden took office January 20, 2021 , with the 2nd quarter of fiscal 2021 in full swing), the OFCCP reported that it had signed only 16 conciliation agreements (“AC”) in the past twelve months (between October 1, 2021 and September 30, 2022), with covered federal government contractors alleging unlawful discrimination. That’s down 75% from the Trump administration’s last full year in fiscal year 2020 in which the OFCCP signed 65 settlement agreements alleging unlawful discrimination, and down more than 80 % from the 88 settlement agreements alleging unlawful discrimination OFCCP Trump signed in fiscal year 2019.
A new trend has also continued to change the historical aspect of reported data. This shift has started to show in earnest in recent years as more individual complaint settlements have begun to show up in discrimination settlement data. This happened because the OFCCP Trump fundamentally changed the OFCCP’s Memorandum of Understanding with the EEOC to allow the OFCCP, for the first time, to retain in its investigative inventory all complaints individuals (the EEOC calls them charges) arising from the Title VII and the Americans with Disabilities Act. We wrote about this change here. As a result, the OFCCP is now inundated with individual complaints and resolving more than ever. These individual regulations now appear in dribs and drabs in the OFCCP’s enforcement statistics. Indeed, while still relatively small in number at the OFCCP compared to the more than 60,000 such complaints the EEOC receives each year, these individual complaints increasingly represent the number of settlement transactions of OFCCP, while representing relatively insignificant dollar settlements compared to typical OFCCP class claims settlements.
This year’s 16 discrimination settlements: Of the sixteen CAs the OFCCP reported signing in the just-ended 2022 fiscal year (2022 fiscal year ended Friday, September 30, 2022), “failure to hire” claims again leads the number of settled discrimination claims (as it has for over four decades) with 10 of 16 (~62%) reporting discrimination in various forms of hiring claims, but no test claims . This is also a new low percentage of “failure to hire” claims compared to other OFCCP discrimination claim settlements. Historically, OFCCP FTH claims have averaged over 90% of OFCCP alleged discrimination settlements.
“Compensation” discrimination claims came in second in terms of the number of claims alleged by the OFCCP at 4 of 16 (25%), but two of those settlements were not “compensation” claim violations. , actually. The first of those four was actually not a compensation claim at all, but rather a sex discrimination complaint that the contractor was assigning women to lower-paying jobs. The remedy was to have the contractor reimburse the women the amount of the value of the better paid job. Thus, compensation was the remedy, not the allegation of unlawful discrimination.
The second of these four OFCCP CAs categorized as “compensation” claims is actually a claim involving the termination of an employee for allegedly disclosing and discussing the compensation of others. The $6,250 in back pay paid was makeshift money to offset the employee’s time before finding another job. The error of the OFCCP in characterizing this claim and the prior claim as “compensatory” discrimination was to confuse the payment of back wages with a claim for compensatory discrimination. If every retroactive payment resolution were a “compensation claim,” all OFCCP discrimination settlements would be “compensation” resolutions. The type of claim is not dictated by the payment of arrears by the employer, but rather by the type of employment transaction identified as having caused the alleged unlawful discrimination (failure to hire, demotion, involuntary dismissal, etc.) .).
The other two true cases of “compensation” were statistical cases claiming that the contractor paid women less than men for work in supposedly similar jobs (a class-based equal pay claim). NOTE: The OFCCP has no authority over equal pay. Further, the OFCCP has not identified any policy or practice that may be the source of the pay differentials at issue (as opposed to a mere statistical imbalance). It is therefore highly doubtful that any of these claims were even proper discrimination claims made illegal by Title VII.
To note: The dollar value of all non-employment claims settled was $5,154,997.79. This is a much lower dollar value than the OFCCP typically collects for fail-to-hire claims and reflects another emerging trend at Biden’s OFCCP: the dropping of fail-to-hire claims. hiring and the dogged pursuit of compensation discrimination claims. The OFCCP believes that pay discrimination is widespread, even though OFCCP surveys have shown, like this year, for more than 40 years (across seven different OFCCP policy administrations) that there is no There is no widespread unlawful discrimination in compensation in the United States based on legally protected status.
To note: After the two CAs that were not in fact “compensation” claims are removed from the OFCCP compensation registry, the number of OFCCP resolutions regarding “compensation” discrimination claims decreases to two (2) for fiscal year 2022 and the value of OFCCP compensation recoveries decreases appropriately. at $4,100,000.
One of the two remaining CAs resolved both a claim that the contractor terminated an employee because of his sexual orientation rather than simply sanctioning him for misconduct (as the OFCCP claimed should have happened ), and in another situation, he had discriminated against an employee because of his disability.
The last of the 16 CAs is odd in that it alleged that the contractor discriminated against an employee by allegedly wrongfully denying her a promotion because of her protected status as a woman and as a protected veteran. Since this was an allegation of intentional discrimination, first of all, it is unlikely that the contractor discriminated against this employee both because she was a woman and a protected veteran. Second, OFCCP does not have non-discrimination authority under the portion of VEVRAA it enforces (38 USC Section 4212). Instead, 38 USC Section 4212 only imposes “affirmative action compliance” obligations. (Yes, we know that the OFCCP quietly converted its VEVRAA rules (starting in 2000 and finally completing this unauthorized transition in 2014) to make discrimination based on protected veteran status illegal. However, a principle The basic principle of federal administrative law is that federal agency rules must faithfully implement the statutory mandate of Congress. Accordingly, federal agencies may neither expand nor diminish this delegation of congressional authority. Thus, the rules of federal agencies, like the modern OFCCP VEVRAA rules, different and broader than the law, the rules are designed to Since OFCCP’s conciliation request was less than $7,000, it appears that the contractor simply “wrote the check” rather than spend more money defending against the unusual OFCCP allegations.
The OFCCP collected in total $10,479,129.81 in the arrears settlements for fiscal year 2022. This collection represents another milestone in OFCCP’s recent arrears collections. This represents a 74% decline in arrears collections since OFCCP’s fiscal year 2019 collection and a 70% decline in arrears collections since OFCCP’s fiscal year 2020 collection.
Special Note: We have not reported here the “Affirmative Action” compliance violations that the agency resolved in fiscal year 2022 since the OFCCP has not yet reported this data. (It usually takes about 30-60 days for the OFCCP to report this data and then correct it). We have previously reported here July 25, 2022, as to all OFCCP audits and CAs through the end of OFCCP’s third quarter (which ended June 30, 2022). As of this writing, it appears the OFCCP has signed a total of 90 CAs over the past 12 months with production declining throughout the year even as the COVID-19 pandemic escalates. is lifted:
