A settlement amount of $1.5 million accompanying the conciliation agreement between OFCCP and Westat, Inc. certainly should have captured the attention of the federal contractor community. However, if you missed the news release with a quote from the Secretary of Labor Thomas E. Perez sent earlier this month, then you’ve come to the right place. We present here a summary and interpretation of the Westat conciliation agreement violations to demonstrate the full breadth of OFCCP during a compliance evaluation. OFCCP concluded that Westat’s selection procedures and failure to apply selection criteria uniformly for all applicants resulted in statistically significant differences in selection rates. Of particular interest to DCI staff, is the fact that OFCCP has cited discrimination in positions that are commonly associated with the Professional-level EEO-1 job category, such as Research Analyst and Programmer Analyst (e.g., Entry Web Developer, Web Developer and Entry Application Developer). OFCCP, in recent years, has characteristically scrutinized the heavy hiring activity of entry-level laborer jobs, but this could indicate a widening focus for the agency. The full list of titles cited in the conciliation agreement include: Research Analyst, Programmer Analyst, Telephone Data Collector, Field Data Collector and Survey Process Staff.

Additionally, it’s worth noting that OFCCP did not list ‘minority’ as the protected group being impacted in the various positions; rather, OFCCP identified that specifically Black, Hispanic, Asian and Female applicants were victimized in the hiring process. This is in line with the verbiage and intent of the regulations to conduct impact ratio analyses by race/ethnicity subgroup with the highest selected group as the comparator, and has been an increasing trend by OFCCP to review personnel activity at this level. The Uniform Guidelines on Employee Selection Procedures (UGESP) are helpful in guiding contractors toward appropriately analyzing their personnel activity. UGESP must also be referenced when a contractor needs to produce validity evidence to support the job-relatedness of a selection procedure. Westat lacked such validity evidence and was unable defend the use of their Voice Sample test component in their selection process for the Telephone Data Collector position.

The audit covered the Maryland headquarter location and seven additional nationwide locations (California, Connecticut, Michigan, Mississippi, New York, North Carolina and Tennessee) which employed “Field Op Staff” or Field Data Collectors. Initiated in December 2009, covering the time period of October 1, 2008 through September 30, 2009, it took over four years for this routine compliance evaluation to reach conciliation. Given the fact that audits are routinely scheduled by the OFCCP and may stay open for lengthy periods of time, it is imperative that federal contractors keep up with their proactive affirmative action and equal employment opportunity obligations and maintain records of such actions. DCI encourages all federal contractors to maintain records, proactively prepare annual plans, implement internal audits (e.g., mock audit) and take action on results produced in plans. Follow up on areas identified through statistical significance testing by conducting a component (i.e., step) analysis and question the validity of tests used in the selection process, if statistically significant differences in selection rates are identified in a component analysis. If you suspect that a step along your selection process might be causing disparities in hiring, then it’s time to dig deeper and find out why.

by Keli Wilson, M.A., Senior Consultant, and Jeff Henderson, M.P.S., Analyst, with DCI Consulting Group

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