by Eric Dunleavy, Ph.D., DCI Consulting Group
On November 16th the EEOC held their last public meeting of calendar year 2011. I was able to attend the meeting, which focused on (1) ADEA regulations and (2) disabled veteran equal employment opportunity (EEO). The meeting began with an EEOC Commissioner discussion and eventual vote on proposed EEOC regulations related to defending adverse impact against older workers under the ADEA. Based on Commissioner comments, it became clear that there were substantial disagreements along partisan lines regarding the reasonableness of the regulations. Not surprisingly, the vote was a close one. After the vote the focus of the meeting shifted to the identification and removal of EEO barriers faced by disabled veterans, and included a top notch panel of staff from EEOC, DOD, OPM, OFCCP, DVA, VetsFirst, JAN and the Chamber of Commerce. A summary of the meeting and relevant written testimony can be found at: http://www.eeoc.gov/eeoc/meetings/11-16-11/index.cfm. I strongly recommend that those of you interested in this topic take a look at the written testimony.
Art Gutman recently wrote a revealing post on the proposed ADEA regulations. As Art described, disparate impact has been an appropriate theory under the ADEA since the Supreme Court ruling in Smith v. City of Jackson (2005), and the chronology of disparate impact burdens was later clarified in the Supreme Court ruling in Meacham v. Knolls Atomic Power Lab (KAPL) (2008). One important distinction between disparate impact under Title VII and disparate impact under the ADEA relates to the employer burden of justifying impact when it exists. Under Title VII, the employer burden is to show that the policy of procedure that produced the impact is job-related or a business necessity, while under ADEA the employer burden is to show that a reasonable factor other than age was used to make decisions that produced the impact. The purpose of the new EEOC regulations was to clarify and exemplify what is a reasonable factor other than age from what is not.
After a detailed discussion, the regulations were passed in a 3-2 vote. Commissioners Ishimaru, Feldblum, and Chair Berrien endorsed the regulations while Commissioners Barker and Lipnic voted to reject them. The regulation now goes to the U.S. Office of Management and Budget (OMB) for review. Chair Feldblum commented that she hopes that this partisan split is the exception and not the norm moving forward.
Among other concerns, Commissioners Barker and Lipnic argued that (1) the regulations were too burdensome on employers from a financial perspective, (2) small business owners that do not have sophisticated Human Resource departments or strategic general counsel would not be able to easily meet the requirements of demonstrating RFOAs, and (3) the employer requirement to take preventive or corrective steps was outside scope of the ADEA. As Art pointed out in his post, this last issue is a controversial one, because it reads very similar to the Title VII requirement of considering alternatives with less adverse impact. ADEA has no such requirement, so EEOC will be adding this requirement via their regulations. Art described this additional burden as “an overstep that is likely to be tested in court”, and I wouldn’t be surprised if Art has a follow up post on the topic. Burdens for demonstrating that reasonable alternatives were considered or that other alternatives existed and should have been used are still ambiguous under Title VII, so it will be interesting to see how this plays out under the ADEA. Stay tuned.
The later portion of the meeting focused on initiatives for identifying and eliminating EEO barriers to disabled veterans. A group of knowledgeable panelists from federal agencies and the private sector shared strategies and experiences that varied in focus and scope. Some of the more compelling success stories emphasized the importance of training veterans on how to describe their skillset via resumes and applications, ensuring that veterans are aware of all of their protections, early intervention to help veterans transition from active duty to the civilian workforce, and being strategic in developing and making reasonable accommodations. Again, I strongly recommend that readers review the written testimony available on the EEOC website found above for more detail.
Two panel presentations may be of particular interest to regular readers of this blog. The first came from Ray Decker, Assistant Director for Veteran Services, Office of Personnel Management (OPM). The presentation was very informative and emphasized, among other things, strategies that federal agencies have used to increase veteran hiring. In fact, 24 agencies have recently developed formal hiring goals for disabled and non-disabled veterans. Based on the public testimony, it appears that these hiring goals used 2009 representation data as a baseline and compared veteran hiring and representation percentages over time to see if they are moving in the right direction. Thus, these goals were not based on comparisons of workforce representation or new hires to some availability measure. It is unclear whether this decision to track changes over time instead of comparing rates to some availability is a function of the lack of readily available/accurate availability metrics.
Another interesting presentation was made by Claudia Gordon, Esq., Special Assistant to the OFCCP Director Patricia Shiu. Her informative testimony summarized recent OFCCP activity, and emphasized, among other things, OFCCP enforcement of VEVRAA and Section 503 of the Rehabilitation Act. One topic that was not discussed as part of the public testimony was OFCCP’s proposal to revise and update the regulations implementing Section 4212. However, a portion of written testimony does describe the proposed regulations. As mentioned in other posts on this website these proposed regulations would change the requirements for veteran outreach and recruitment efforts, and require the development and monitoring of quantitative metrics to assess the success of those efforts. These are obviously noble and important goals.
Numerous public comments submitted in response to the proposed regulations reiterated their importance, but also identified challenges to implementing such initiatives in meaningful and reasonable ways. One of the common themes across the set of comments focused on the difficulty in developing specific quantitative goals based on accurate availability data for protected veterans. Perhaps the OPM approach is a reasonable alternative in the absence of available and accurate availability data. Regardless, the federal contractor community continues to wait for an update on the status of these regulations, which have already been reviewed by OMB.
One of the clear messages from the panelists and EEOC Commissioners was to make sure that veterans, federal agencies, and private employers are all aware of the resources available to ensure that there are no EEO barriers. I expect that the EEOC will update their website based on the hearing and help to develop a centralized resource repository for veterans and potential employers. Identifying and removing EEO barriers for all veterans is a goal we can all agree is worth pursuing.
November 18, 2011