by Patricia Schaeffer, Vice President-Regulatory Affairs
DCI Consulting Group Inc. has noticed a surprising new trend in how OFCCP conducts its adverse impact analyses.
David Cohen, President of DCI, says that in working with his clients recently, he’s noticed that OFCCP is conducting adverse impact analyses comparing all subgroups to the higher selected group instead of running all groups in comparison to just whites or males. For example, Cohen reports that if women are the higher selected group, he has seen OFCCP run an analysis to determine if there is adverse impact against men.
“In fact, we have several audits where there is ‘adverse impact’ against men and/or whites, and the local OFCCP office is collecting applicant data and coming on-site for an investigation,” Cohen says.
Cohen spoke to a senior official in OFCCP’s national office, who indicated there is no change in policy from headquarters or elsewhere on how OFCCP is conducting adverse impact analyses. However, the official did note that there were some cases in the Southwest region where Hispanics were the "higher selected class," and adverse impact against African Americans was identified. This adverse impact against African Americans would not have been identified using the traditional analysis that would have compared African Americans to whites.
The official noted that “it has always been a violation of the Executive Order (as well as Title VII) to discriminate against any race or sex (including whites and males). If you have seen a trend, perhaps it is due to a change in contractor behavior, because it is not due to any change in direction from OFCCP leadership,” the official explained.
Referencing the Uniform Guidelines on Employee Selection Procedures at 41 CFR 60-3.4 D, the senior official told DCI that “adverse impact under 60-3 is described as ‘A selection rate for any race, sex, or ethnic group, which is less than four-fifths…of the rate for the group with the highest rate will generally be regarded…as evidence of adverse impact.”
“Personally, I think this is a pretty dramatic shift from the way OFCCP has conducted adverse impact analyses for decades,” Cohen noted, “and it presents huge implications for contractors.”
