GAO Recommends Changes To Enforcement in Technology Industry

Recently, the Government Accountability Office (GAO) issued a report recommending changes to improve U.S. Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) enforcement processes when monitoring equal opportunity employment and affirmative action compliance in the technology industry.

In examining the trends in gender, race, and ethnicity composition in technology, the report found the percentage of women, Black, and Hispanic workers is lower as compared to their representation in the general workforce. On the flip side, technology jobs continued to grow, the representation for women and Blacks did not increase in the period 2005-2015, while the increase in technology workers who were male, Hispanic, and Asian increased at a statistically significant rate. The data also showed the percentage of Asian tech workers is greater than Asian employee representation in the general workforce.

Regarding regulatory practices, the report found that EEOC has not effectively tracked Equal Employment Opportunity (EEO) complaints by industry. GAO’s examination of complaints filed in EEOC’s database showed only half of the complaints identified the type of the employer’s business. Through their interviews with several stakeholder groups, they concluded that tech workers may be filing fewer complaints at the federal level. This could be due to several factors, including filing complaints at the state level rather than federal; requirements for binding arbitration; and workers, who tend to be higher paid, deciding to go straight to lawsuit filings.

In examining OFCCP’s process, the GAO found that placement goals in Affirmative Action Plans lack specificity. Goals for minorities are set at the total minority level which may not reveal information for contractors to address underrepresentation in any specific group. The report also identified that OFCCP’s audit selection criteria does not use industry as a factor, which limits its ability to target industries with the greatest potential for non-compliance. The 50-year-old practice of selecting contractors for audit based on establishments was also noted as an issue since there have been significant changes over the years on how workplaces are structured. Though contractors do have the ability to create Functional Affirmative Action Programs (FAAPs) that allow contractors to complete affirmative action plans based on a business function or business unit, few contractors participate in the program. The report also noted that compliance reviews are not completed in a timely manner.

Based on these findings the GAO presented six recommendations—one for EEOC and the rest for OFCCP. The report recommended that EEOC improve its processes to analyze data by industry. The EEOC had already identified steps needed to address diversity by industry, however little action has been taken. The GAO recommended EEOC set a timeline to complete its efforts to clean up the reporting data so they can have a better understanding of the level of complaints coming from the technology sector.

The GAO had five recommendations for OFCCP:

1. The agency should examine the cause(s) for the delay in completing compliance reviews and make changes accordingly.
2. OFCCP should take steps to require contractors to disaggregate demographic data to help guide more specific goal setting.
3. The agency should assess its process for selecting contractors for compliance reviews and finalize procedures to identify contractor establishments with the greatest risk of noncompliance.
4. The agency should evaluate the current approach of identifying organizations for compliance reviews and determine if modifications should be made to reflect current workplaces.
5. OFCCP should evaluate the FAAP process to determine if this is an effective alternative to establishment based programs and how more contractors could be encouraged to participate in the program.

EEOC has not agreed nor disagreed with the report and OFCCP has indicated that regulatory changes would need to take place to implement some of the recommendations. Employers with employees in technology jobs, especially government contractors in the technology sector, should keep abreast of any changes to the processes for both these agencies because of this study. Stay tuned as we monitor this and other OFCCP and EEOC enforcement developments.