There has been much talk recently about Office of Federal Contract Compliance Programs (OFCCP) and steering, and for a good reason. Steering is an employment practice that directs a certain subgroup toward a specific set of jobs, often positions with lower pay or fewer opportunities. For example, steering might be a concern if you have two open laborer positions, one of which is consistently lower paid with lower promotional opportunities, and have a hiring manager who consistently directs women toward the lower opportunity position, whether intentionally or not.
OFCCP remains focused on potential steering issues—in part because steering cases may impact compensation as well as all selection decisions. Most of the OFCCP’s steering cases to date have focused on contractors’ hiring processes. In some cases, workforce segregation issues are what prompts OFCCP to investigate whether steering is a concern. For example, are all fork truck drivers men, while other warehouse positions are filled by all females? Where a company directs its good faith or recruiting efforts can be used as evidence in steering cases, according to recent settlements. For example, are you directing your recruiting efforts for housekeeping positions towards women while recruiting males for janitorial positions—even though the skill sets needed can be the same?
It also is important to keep in mind steering can have an impact based on gender, race, or both, and can impact men as well as woman and nonminorities as well as minorities. For example, some of OFCCP’s settlements have focused on whether employers are directing Hispanics towards a particular job, to the detriment of other races, including, for example, African-Americans and Whites. Other settlements have focused on the negative impact steering has had on male applicants and employees.
Organizations should do a proactive analysis and look for concentrations of protected groups by job group, job title, department, shift, or territory. An employer can start by simply taking a “visual scan” of its workforce to confirm there is diversity among the workforce in most positions and departments.
One way to identify potential steering is to review under- or over-utilization in job groups, titles, or levels. For example, if the availability for women in housekeeping is 80%, but you are employing women at 95%, there may be a steering issue. Employers also should examine how shifts, and other work assignments, are assigned to confirm the process is free from any bias. For example, employers might examine how sales territories are assigned to see if certain protected groups are given less successful territories.
For more information on steering, and how OFCCP is currently enforcing it, please contact a Berkshire compliance expert at 800.882.8904