Recent DCI blogs have summarized high-level themes from the new 503 and VEVRAA regulations. One theme relates to the new analytics that may be required by the final regulations. The new regulations provide for a (1) protected veteran benchmark workforce analysis and an (2) individual with disability goal analyses for each job group. The new regulations also require several quantitative measurements and comparisons based on hiring data. Specifically, contractors will be required to conduct separate analyses based on hire-to-applicant-ratios for both individuals with disabilities and protected veterans. OFCCP’s intended purpose is to create greater accountability for employment decisions and practices. According to OFCCP, “Having this data will enable contractors and OFCCP to evaluate the effectiveness of contractors’ outreach and recruitment efforts, and examine hiring and selection processes related to individuals with disabilities.”
Interestingly, disparity analysis is not discussed anywhere in the regulations. However, the required analyses in the new regulations will result in computation of the hiring-to-applicant ratios that are the foundation of disparity analyses. These are the very same disparity analyses that are often used by OFCCP in allegations of discrimination related to gender and race/ethnicity. The computation of traditional impact ratios would not be difficult.
Although the new regulations do not discuss disparity analyses used to investigate hiring discrimination against individuals with disabilities or protected veterans, there is no guarantee OFCCP will not conduct and follow-up on such analyses. In fiscal year 2011, OFCCP settled a case in which the agency alleged discrimination against protected veterans and collected financial remedies for alleged victims. The disparity analyses were confusing and non-traditional given no self-identification requirements under 4212 at the time. However, since it was a voluntary settlement, nothing related to the matter went before an EEO decision maker, and likely didn’t make it to the Solicitor’s office. If this happened in 2011, what is the likelihood of this happening in the future? Eventually OFCCP will have data in hand for analyses that could be used to make allegations of discrimination, regardless of whether the regulations discuss them. Certainly assessing disparities in hiring is consistent with the spirit of these new regulations. However, given the complexity of disparity analyses and omission of how OFCCP might analyze the data, it is unclear how results would be interpreted or what federal contractors could do to justify any existing disparities. Stay tuned.
by Eric Dunleavy, Ph.D., Principal Consultant and Kayo Sady, Ph.D., Consultant, DCI Consulting Group