The United States Government Accountability Office (GAO) has issued three reports since September 2016 that offer the OFCCP and EEOC recommendations for improving enforcement of equal employment opportunity policy.1 On September 19, 2019, the GAO released a follow-up report evaluating OFCCP’s progress toward implementing these recommendations thus far. Overall, GAO found OFCCP has successfully implemented four of the eleven recommendations but requires additional effort to meet the remaining seven guidelines.
In 2016, GAO identified weaknesses in OFCCP’s compliance evaluation selection process, including its scheduling procedures, reliance on voluntary compliance, and the lack of staff training. The November 2017 report expanded upon these problems, noting a specific need for increased oversight in the technology sector. To date, OFCCP has taken the following successful steps to improve oversight:
- Addressed the risk geographic imbalances pose in compliance evaluation assignment: OFCCP revised their scheduling list distribution process to address changes in human capital instead of relying exclusively on geographic location.
- Improved outreach and compliance assistance efforts: OFCCP reviewed and overhauled information provided to federal contractors and workers pertaining to nondiscrimination and affirmative action requirements, ensuring contractors have a better understanding of federally mandated equal opportunity requirements.
- Assessed contractor guidance for clarity: OFCCP reviewed existing contractor guidance to ensure that contractors have information that helps them better understand their responsibilities regarding nondiscrimination and affirmative action requirements.
- Created more nuanced AAP goals for technology workers: In the technology sector, OFCCP has taken steps toward requiring contractors to disaggregate demographic data to set AAP placement goals, incorporating appropriate accommodation for company size.
Although OFCCP and EEOC have taken steps to improve their oversight procedures, they have fallen short of meeting seven of GAO’s recommendations. GAO outlines recommended next steps:
- Focus compliance evaluations on greatest violation risk: GAO recommends considering disparities by industry prior to selecting contractors for compliance evaluation to target industries that historically have the highest rates of noncompliance. OFCCP has taken steps to implement this recommendation, however the sampling methodology does not go far enough to ensure high risk contractors are selected for compliance reviews.
- Electronically monitor affirmative action programs: Electronic AAP monitoring will allow OFCCP to validate federal contractors develop an AAP within 120 days of contract commencement and update it annually. In 2018, OFCCP took steps toward this goal by contracting with an IT vendor to develop a web-based portal for contractor AAP uploads. OFCCP reports the portal will be delivered by the end of the 2019 fiscal year (September 30, 2019), and plan to receive OMB approval for collecting AAPs in a similar timeframe.
- Facilitate timely compliance training: In 2019, OFCCP completed an evaluation of their compliance officer training programs nationwide and developed a plan of action to address gaps in training. OFCCP plans to roll out a new learning system to monitor training progress in 2020.
- Continue to improve oversight in the technology sector: GAO recommends OFCCP take action to capture standard industry classifications on charges, use data on closed evaluations to address root cause of delays in the compliance review process, further refine schedule methodology, obtain OMB approval for changes to identification methods in compliance reviews, and evaluate the Function Affirmative Action program’s utility as an alternative to an AAP.
Further Clarification Expected
The September report provides a good summary of OFCCP’s efforts to date in implementing GAO recommendations. However, OFCCP’s commentary on the development of an electronic portal for AAP reporting by the end of 2019 raises questions.
OFCCP contends the AAP upload portal is on track to be delivered and approved by OMB by the close of fiscal year 2019. With that date looming ever closer, there are several hurdles that need to be jumped. Most notably, OMB has not received the information collection requests from OFCCP that are required for approval. Once these are received, OMB mandates require time for public comment on the information collection requests. This raises questions as to when the portal will be both live and able for contractors to use.
DCI has requested clarification from OFCCP about the timeline for launching this portal and will provide updates as they are available.
By Susanna Vogel, Associate Consultant at DCI Consulting Group