Former OFCCP Officials Clarify Employer Non-Discrimination Obligations

In the ongoing public discussion about the implications of President Trump’s Executive Order 14173 a new “open letter” was issued this week from ten former OFCCP officials. The former officials offer their views about the Trump administration’s efforts to dismantle “illegal DEI” and the revocation of Executive Order 11426 – the foundation for the past regulatory requirements and enforcement work by OFCCP.

The former officials note that presidential orders can neither change nor override laws created through acts of Congress, such as the Civil Rights Act. Nor can they change legal standards established by those laws and federal court interpretations of them.

“Continuing effective discrimination prevention programs is…fully lawful,” the authors note. “Conducting self-assessments, including data analysis to detect and prevent discrimination, has helped employers thrive by leveraging the full talent across America. This work also protects employers from liability by ensuring compliance with federal, state, and local anti-discrimination laws.”

In short, the open letter strongly encourages private organizations—whether they engage in federal contracting activity or not—to continue using lawful and effective tools to ensure equal opportunity in their workplaces. It goes on to detail several practices the authors deem “fully lawful” and “essential” for private employers to demonstrate compliance with non-discrimination laws, mitigate potential legal risk, attract and retain top talent, and foster innovation and business performance.

Specifically, the letter encourages employers to continue these common practices to prevent discrimination:

1. Proactive Barrier Analyses – “Barrier analysis is a self-assessment approach used to identify and remove obstacles that prevent equal employment opportunity,” and to ensure that decisions about hiring, pay, and promotion rely on legitimate job-related qualifications. The letter provides examples including examining hiring processes to identify and understand high rejection rates for qualified candidates from certain backgrounds. “Employers that decline to track applicant flow data and analyze their hiring and recruitment practices for potential barriers, or fail to assess pay equity or other practices, face an increased risk of liability.”
2. Collecting and Analyzing Workforce Data – There has been much debate over whether and to what extent employers can or should continue to collect and analyze applicant flow and workforce data, particularly whether employers should continue to solicit sex and race/ethnicity self-identification from job applicants. The
   open letter argues “Yes,” pointing out that organizations subject to Title VII are required to “make and keep such records relevant to the determinations of whether unlawful employment practices have been or are bring committed” (citing to 42 U.S.C § 2000e-8(c)). “Analyzing current workforce data is a critical strategy to assess whether promotion, assignment, pay, and other policies are compliant with federal, state, and local civil rights requirements.”
3. Tracking Progress Though Well-Crafted Benchmarks – The letter encourages the continued use of “benchmarking” or “aspirational goal setting” to monitor for potential discrimination in employment practices, noting this was previously supported by OFCCP regulations as a central feature of a well-designed “AAP.” Consistent with those regulations, the authors separate benchmarks from quotas and note that benchmarks should be based on “appropriate” factors such as an analysis of the relevant labor pool, and include safeguards to ensure that employment decisions remain focused on relevant, job-related factors, i.e., not protected characteristics (see 41 C.F.R. § 60-2.16(e)(1-4)).

Looking Ahead

Although federal non-discrimination laws and bedrock principles have not changed, as the open letter points out, the factors that go into assessing organizational risk are changing and creating a shifting landscape for employers. Berkshire offers services and products—both old and new—that can help employers navigate these new, uncertain times. Moreover, Berkshire consultants are well-experienced at working with legal counsel to chart a path forward that is consistent with your organization’s goals and appetite for risk.