On Friday, March 8, OFCCP launched a new Section 503 focused review landing page, which provides links to information including a sample of the associated scheduling letter, employer best practices and resources, and a set of 12 FAQs.
Of note, FAQ #9, which answers “Will OFCCP analyze personnel activity data during a Section 503 focused review?,” states that OFCCP will not initially require submission of personnel activity data outside of that required under 60-741.44(k). However, instead of stopping with that statement, the FAQ goes on to add that during the course of a review, “OFCCP may request compensation and promotion data for individuals who identified as having a disability, are known to have a disability and/or employees who requested a reasonable accommodation.” However, that doesn’t answer what OFCCP does intend to do with the information. If, as the FAQ indicates, this data would only be requested for individuals with a disability, OFCCP would not have the necessary information to compare promotion or compensation information of individuals with disabilities against those potentially without a disability.
Further, the same FAQ states that “OFCCP may request additional applicant flow data for job groups that had applicants with disabilities.” It is possible the agency merely intends to use that additional information to aid in the evaluation of recruiting effectiveness as prescribed in 60-741.44(k). The agency asserted in the 2013 Section 503 Preamble (pp 58702) that “OFCCP Compliance Officers will not be using the applicant and hiring data to conduct underutilization or impact ratio analyses.” The Institute for Workplace Equality recently sent a letter to OFCCP requesting clarification on the matter.
There are a variety of problems with possibly analyzing adverse impact related to individuals with disabilities during an OFCCP review, even beyond the fact that OFCCP stated in the Preamble of the Section 503 regulations it would not conduct these analyses. To start, there is the issue of imprecise data due to the magnitude of employees and applicants who choose not to respond to the self-identification survey. Additionally, there are limitations with placing or considering all individuals with disabilities in the same protected ‘group’ as mentioned in a prior DCI blog post.
DCI will keep our readers updated as we learn more from OFCCP of their intentions for collecting and possibly analyzing additional applicant-, promotion-, or compensation-related data for individuals with disabilities during a focused review.
By Joanna Colosimo, M.A., Director of EEO Compliance and Principal Consultant, and Kristen Pryor, M.S. Associate Principal Consultant, at DCI Consulting Group