Thursday, May 16, 2013

OFCCP ANNOUNCES DATE FOR REQUIRED USE OF 2006-2010 CENSUS DATA

by Amanda Shapiro, Consultant, DCI Consulting Group

OFCCP announced May 15, 2013 that federal contractors will be required to use data from the 2006-2010 special EEO file starting January 1, 2014. Meaning, federal contractors with an affirmative action plan date of January 1, 2014 or later will need to use the 2006-2010 data in their availability and utilization analyses, rather than the 2000 census data. Contractors have the option of using the 2010 data file prior to January 1, 2014 if preferred, but will not be evaluated on this information until 2014.

The 2006-2010 EEO tabulation can be found at: http://www.census.gov/people/eeotabulation/data/eeotables20062010.html.

Tuesday, May 07, 2013

WHAT IS THE STATUS OF PROPOSED VETERAN (4212) AND DISABILITY (503) REGULATIONS?

by David Cohen and Jana Garman, DCI Consulting Group

Based upon the FY 2013 Budget Request to Congress, OFCCP planned to release in final form the Veterans and Disabilities regulations sometime in April of 2013. However, those regulations are still at OFCCP going through “revisions” and have not been sent over to the Office of Management and Budget (OMB) for final review and approval. In the most recent FY 2014 budget request to Congress, OFCCP refers to the finalization of the regulations in the past tense, as if they have already been approved and released in FY 2013. Meaning, the new plan is that OFCCP is expecting to have the regulations approved some time before October of 2013. Is this still possible? Yes.

If OFCCP sends the final regulations over to OMB within the next month or two, it is possible that OMB will review (taking at least 60 days to complete, but most likely longer) and approve the regulations before the end of the fiscal year. Our best guess is that the regulations will be final and in place sometime in the late fall or early winter.

The bottom line is this, it is not a matter of “if” they pass; it is now a matter of “when” they will pass. Stay tuned.

BERTUCCI CONTRACTING SETTLES RACE DISCRIMINATION CASE WITH OFCCP FOR $70,000

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Bertucci provides flood control and restoration services and has received more than 80 million in federal contracts related disaster recovery efforts, most notably, in the wake of Hurricane Katrina in 2005 and the British Petroleum oil spill in 2010. The OFCCP claims that Bertucci Contracting’s hiring process adversely impacted African Americans, Hispanics, Asians and Native Americans from 2009 through 2011. The company agreed to pay $70,000 in back pay and interest, and offer retroactive seniority to 14 affected applicants. The company also agreed to hire six additional minorities as available positions emerge, and to provide better training for hiring managers, annual reviews of supervisor adherence to employment policies and affirmative action obligations, and to improve recruitment procedures so as to avoid future violations. The settlement may be viewed at http://www.dol.gov/opa/media/press/ofccp/OFCCP20130565.htm.

8TH CIRCUIT DEFERS TO EMPLOYER’S JUDGMENT ON WHAT CONSTITUTES AN ESSENTIAL JOB FUNCTION

by Art Gutman Ph.D., Professor, Florida Institute of Technology

To claim protected class membership under the ADA, the individual must prove (a) disability within the meaning of the law (an impairment that significantly restricts a major life activity) and, (b) qualification (ability to perform the essential job functions with or without reasonable accommodation). In the case at issue here (Knutson v. Schwan’s Home Service [711 F.3d 911]), decided on April 3, 2013, the 8th Circuit affirmed a lower court summary judgment ruling favoring Schwan on grounds that Knutson was not qualified to perform an essential job function and that, therefore, it is unreasonable as a matter of law to request elimination of that job function.

Knutson was clearly disabled (he suffered a serious eye injury that significantly restricted his ability to see). However, he was deemed not qualified because he could not obtain DOT certification to drive delivery trucks in excess of 10,000 pounds, which Schwan claimed is an essential job function of his position as a Location General Manager (LGM). One of Schwan’s requirements for LGM is to "meet the Federal Department of Transportation [DOT] eligibility requirements, including appropriate driver's license and corresponding medical certification as a condition of employment for this position." After his eye injury, Knutson was given a 30-day leave of absence to either (a) obtain a DOT waiver that would allow him to drive delivery trucks or (b) find a vacant non-DOT certification position elsewhere in the company that he could perform with or without reasonable accommodation. He was unable to do either and was terminated.

The key issue was whether driving is an essential function of an LCM. Knutson claimed that LCM’s rarely drive delivery trucks and, therefore, the requirement to do so is not an essential job function. However, the 8th Circuit accepted the employer’s judgment of what constitutes an essential job function as being “highly probative”, and ruled that “[W]hile sales managers do not necessarily drive the delivery trucks every day or even every week, [they] are required, at the very least, to drive the vehicles from 'time to time.'" The court also ruled that Knutson’s own experience “is of no consequence in the essential functions equation.”

I am concerned that employers may read this ruling and conclude they can use their discretion to define what is essential (a) absent any job analysis data and (b) absent fear that courts will question their judgment. In fact, there is case law to the contrary.

To illustrate, in Borrowski v.Valley Central (1995) [63 F.3d 131], a school librarian with memory and concentration deficits claimed she could perform the essential functions of her librarian job, but needed a teacher’s aide to help her control the students. The 2nd Circuit ruled that Borrowski’s request was reasonable as long as controlling students was not an essential job function. The 2nd Circuit then remanded the case back to the lower court to make that determination.

Consider also Stone v. Mt. Vernon (1997), where Stone, a paraplegic former firefighter, requested a “bureau” job requiring deskwork, but was excluded because the fire chief claimed that bureau personnel must fight fires in emergencies. The 2nd Circuit ruled for Stone, based on the testimony of two long-term bureau employees who opined that such emergencies had never occurred before.

And in PGA v. Martin (2001), Casey Martin, a professional golfer was afflicted with Klippel–Trenaunay–Weber Syndrome, a degenerative nerve disease that made it difficult for him to walk a golf course without pain. He requested use of a golf cart during PGA tournaments. The PGA refused on grounds that having a PGA contestant in a golf cart would fundamentally alter its tournament events, to which the Supreme Court unanimously ruled that walking is not “an essential attribute of the game.” In the words of Justice Stevens (who happened to be an avid golfer):
The use of carts is not inconsistent with the character of golf, the essence of which has always been shot-making. The walking rule … is neither an essential attribute of the game itself nor an indispensable feature of tournament golf. The walking rule contained in petitioner’s hard cards is neither an essential attribute of the game itself nor an indispensable feature of tournament golf.
I think the bottom line here is to be skeptical of the Schwan ruling, particularly if your place of business is outside the jurisdiction of the 8th Circuit Court. Additionally, from the perspective of acceptable professional practice in I/O psychology and human resources management, it’s not a very good practice to make arbitrary determinations of what is necessary for you jobs. Always ask what would a job analysis “say.”

DCI STAFF ATTEND SIOP’S 28TH ANNUAL CONFERENCE HELD IN HOUSTON

by Eric Dunleavy, Ph.D., David Morgan, Kayo Sady, Ph.D., Amanda Shapiro, Dave Sharrer, and Keli Wilson, DCI Consulting Group 

The 28th Annual Conference for the Society for Industrial and Organizational Psychology (SIOP) was held April 11-13, 2013 in Houston, TX. Attendees and presenters from a variety of industries and backgrounds took part in the event, including but not limited to Industrial/Organizational Psychology. As is typically the case for the Annual Conference, many sessions covered topics related to current EEO-related issues, as well as important themes concerning the workplace, such as assessment, selection, and adverse impact measurement. This year also saw a focus of sessions on hot topics for the federal contractor community such as the recruitment and retention of veterans, as well as accommodations for individuals with disabilities. DCI Consulting Group staff members were involved in a number of SIOP presentations. Some conference presentation highlights are found below.


SIOP Focus on Veterans and Individuals with Disabilities

The 2013 conference saw several sessions that focused on veterans and individuals with disabilities, two groups that are particularly important for the federal contractor community. In addition to the relevance given recent OFCCP regulatory activity, the presence of these sessions also fits nicely with current SIOP initiatives, including the Soldier to Civilian program started this year and lead by one of the sessions’ moderators. Relevant sessions are summarized below.

Recruitment and Retention of Veterans

Two independent sessions focused on the recruitment and retention of veterans. Several reasons for this focus is the large demobilization of the military and already existing unemployment rates for veterans, difficulty experienced for veteran applicants in translating their military skills and experience to a civilian sector job, and the work needed for companies to create a culture that allows this to happen. These sessions included representatives from 6 companies that have found successful ways to address problems that may be driving veterans away from employment. These companies include: Macy’s, Wal-Mart, GE, AT&T, Sodexo, and Frito-Lay.

There are a variety of reasons for building a robust Veteran program, including the obvious: “it’s the right thing to do”. Additionally, panelists felt that it is a good business decision and having veteran applicants and employees “raised the bar” for the rest of their workforce. Panelists described several characteristics of veterans that aligned with their business values, including service orientation, goal attainment, calm under pressure, demonstrated success in training, stress tolerance, and problem-solving.

Panelists provided recommendations to improve Veteran recruitment:
  • Massive overhaul of basic and preferred qualifications, as well an additional information of “military equivalents” for these qualifications 
    • Consider developing a competency crosswalk 
    • Don’t let groups “waive” basic qualifications 
  • Partnerships with outside groups and consulting firms 
  • Before designing veteran recruitment program, conduct a gap analysis 
While the recruitment of veterans is important, the retention of those hired is even more important. Each of the companies discussed programs that they have in place to work towards retention goals. Some of these programs include:
  • Formal support for veterans and families during periods of deployment 
    • Maintaining previous level of compensation received 
    • Organized meetings/groups/events 
    • Increased communication through cell phones for their soldiers abroad 
  • Internal education programs for non-veteran incumbents 
  • Assignment of an internal champion for their veteran programs at each facility 
  • Buddy Programs 
  • Employee resource groups 
The panelists also provided tips for successful Veteran recruitment and retention programs:
  • Focus on the employee “life cycle” 
  • Ensure senior leadership support 
  • “Be serious about it” or the brand will fail 
  • Accept that you will need to modify standard HR processes 
  • Balance veteran programs with other initiatives or company programs 
  • Don’t overcommit and budget the appropriate time and resources 
  • Realize that it may take more than one attempt to get it right 
  • Beware of quotas 
In addition to learning about experiences and best practices in veterans’ programs from 6 companies, one of the sessions also included research and resource information. Presenters from PDRI highlighted two resources that veterans can utilize from the Department of Veterans Affairs. VA for Vets allows for comprehensive employment search and career support, in addition to numerous resources and coaching tools for veterans. Additionally “MyCareer@VA” provides additional tools to veterans, including fit, career path, and job mapping.

Accommodating Individuals with Disabilities: Legal and Applied Perspectives

One session was dedicated to the accommodation process of individuals with disabilities, from pre-employment testing through postemployment training. Experts provided tips and best practices to ensure compliance while still maintaining a positive experience for applicants and/or employees.

For confidentiality, it was recommended that there is a main person in human resources responsible for receiving and recording of requests. Other than this individual and a medical department, other employees should not be involved in the process – especially hiring managers and recruiters. Other recommendations from the panel included:
  • Be consistent in methodology and content even if the mode is different 
  • If translators are needed, recommend using company translators. If a personal translator is the only option, it was recommend that the session be recorded and reviewed by the company for approval 
  • Be aware that accommodations are more easily addressed due to advancements in technology 
  • Develop a well-defined process and procedures and allow for a reasonable amount of time for each step in order to move all qualified candidates through the process 
  • Provide candidates upfront with as much information as possible on the process (time, technology used, etc.) and required documentation. This allows candidates to “get in front of the situation” 
  • Keep a distinction between accommodations needed to apply or test for a job and the accommodations needed in order to do the job if hired. 
  • Store disability information completely separate from applicant or employee files. It should not be connected to the applicant tracking system at all 
  • Conduct job analysis to define essential functions of the job 
  • When defining “reasonable accommodations”, involve the help of outside groups/organizations 
  • Stay on top of regulations and current events 
  • Include a process that allows applicants who reapply (and had accommodations previously accepted), to not need to reproduce documentation within a specified time frame 
  • Be as flexible as possible 
    • Recommended to err on the side of caution when approving documents – the cost of accepting the request is typically much less than the cost of a challenge 
If there is not an individuals with disabilities program already in place (or the current one needs to be updated), the following recommendations were given:
  • Step one of the process is to assess the knowledge, skills, and abilities required for each job, as well as job functions. Review and update these job elements as needed in job descriptions and postings (this is where a job analysis is crucial). 
  • Create detailed process for when and how follow-ups occur when accommodations are requested 
  • Develop a protocol for the accepted forms of documentation and process for tracking (important if you need to reconstruct the process in the future) 
  • Create a process to ensure that confidentiality is maintained 
    • Candidates must be comfortable otherwise the program will not work 
  • Get all of the “right people” involved (i.e., upper management, legal, HR, medical). 
  • Create an internal group to champion the program

SIOP and EEOC: Developing Guidance on Employee Selection 

At last year’s SIOP Conference, Jacqueline A. Berrien, the Chair of the Equal Employment Opportunity Commission (EEOC), gave the keynote address and called for an open dialogue between the EEOC and SIOP. This panel was an update on the progress towards that goal.

Moderator Dr. Joan Brannick (Brannick HR Connections) hosted a panel that included representatives from several involved groups. SIOP President Dr. Doug Reynolds (DDI), spoke about how SIOP has created a Task Force on Contemporary Selection Practice Recommendations (CSR) to EEOC with goals of relationship building and promoting and advancing the science and practice of I/O psychology in relevant domains. DCI Consulting Group’s Dr. Eric Dunleavy, Task Force Chair, indicated that over months of discussions, two topics of mutual interest have been identified. These areas are the measurement of adverse impact and the transportability of validity evidence. These are the first two topics that the Task Force will explore, but they may not be the last. The Task Force will keep the SIOP community updated on their progress through the publication TIP and other resources.

Dr. Richard Tonowski, EEOC’s Chief Psychologist, indicated that the EEOC was glad to be partnering with SIOP, but wanted to make sure it was understood that EEOC will not be revising or abolishing the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP). Although there have been requests in recent years to review these guidelines, Tonowski suggested that UGESP does not currently need to be changed. He noted that UGESP states “[t]he provisions of these guidelines relating to validation of selection procedures are intended to be consistent with generally accepted professional standards for evaluating standardized tests and other selection procedures...,”. As such, UGESP may be “silent on an issue,” but that does not necessarily preclude use of new methods and techniques. These other methods or techniques would be considered acceptable as long as they are consistent with current science and practice. Stay tuned.


Moving the State of Adverse Impact Measurement Forward 

Many organizations measure and monitor adverse impact because of possible legal responsibility and risk associated with the results. Practitioners often seek advice on the appropriate means to measure adverse impact. This panel of experts was brought together to discuss the contemporary adverse impact analysis while making recommendations on how to improve the measurement of adverse impact. Each panelist gave a short symposium-style presentation followed by a discussion moderated by Dr. Eric Dunleavy (DCI Consulting Group).

Dr. Art Gutman (Florida Institute of Technology) provided the historical context of adverse impact measurement in case law, including the origin of the “two-standard deviation rule” in Castaneda v. Partida (1977) and the first application to an adverse impact case in Guardians v. Civil Service Commission (1980). Additionally, he mentioned that the “two-standard deviation” test used by the courts is actually referring to what statisticians would call a “two-standard error” test, and suggested adopting the term “statistical significance testing” to help eliminate some of the confusion. Dr. Morris continued the discussion on this topic, explaining that because standard error is sensitive to sample size, “it’s worse to be big than to be bad” when using only statistical significance tests.

Dr. Scott Morris (Illinois Institute of Technology) also argued that adverse impact should be evaluated using directional statistical tests. Not only are these tests more powerful than non-directional tests, but they are also more appropriate for testing a directional hypothesis (e.g., the minority group will be selected at a lower rate than the nonminority group). Currently, non-directional statistical significance testing is the norm.

Dr. Fred Oswald (Rice University) presented several ways that selection rates can be compared. In addition to the commonly used impact ratio (i.e., 4/5th rule), we can examine its reciprocal, termed “relative risk.” The likelihood of applicants being selected can also be represented as odds, and those odds can be compared using an odds ratio. We can also use a chi-square test to compare the observed results to expected values. All of these measures have different meanings, but each one is important. Dr. Oswald suggested having separate guidelines to determine meaningful effects for each.

Both Dr. Dunleavy and Dr. Rick Jacobs (EB Jacobs and Penn State) spoke about what the scientist and practitioner communities can do going forward to advance best practices in the measurement of adverse impact. Their advice was to share what we know with relevant government entities, share literature and comments with EEO regulatory agencies, as well as submit amicus briefs to the Supreme Court. Additionally, the panel suggested that the best approach was to use a preponderance of evidence. If you are using statistical significance, you should also include a measure of practical significance. They seemed to agree that the 4/5th rule should probably be replaced as the standard “rule of thumb” for demonstrating practical significance.


Experts Offer Practical Guidance for Multiple Regression Analysis

A panel of regression experts (including Drs. Mike Aamodt and Kayo Sady from DCI) discussed practical issues in using regression to analyze organizational data. Much of the discussion focused on pay equity analyses. Several issues were covered in this session, such as appropriate sample sizes (e.g., the number of observations per variable needed for interpretable results), handling outliers, dummy coding data, convincing courts of appropriate methods, as well as model building strategies and interpreting results. Panel members reached broad consensus in a number of areas. For example, the experts agreed that context matters when determining appropriate sample sizes. Factors such as expected effect size, the number of explanatory variables, and desired statistical power should all be considered when determining appropriate sample size in a particular situation. Unit weighting of variables or cohort analyses were offered as alternative analytic strategies to regression when sample sizes are smaller than ideal. The panelists also noted the importance of practical significance considerations when dealing with very large sample sizes. The take-home message was that there is no one-size-fits-all approach for conducting multiple regression analysis in applied settings; however, the panelists agreed that rational model-building, paired with scientifically-sound regression techniques, is critical for appropriate model specification and results interpretation. Pay equity analyses are not exempt from regression best practices. It is clear that thoroughly understanding an organization’s pay practices, structures, and systems is critical to modeling such processes and drawing appropriate conclusions about the reasons for existing pay differences.


MQ/PQ Best Practices: Valid Selection at the First Hurdle

Dr. Lisa Lewen (AON Hewitt) presented the importance of validating the minimum qualification stage of a selection process during a master tutorial session. Employers rely on minimum qualifications to help screen out those candidates that do not meet the basic requirements to minimally perform a job. Minimum qualifications will ultimately allow an employer to identify applicants that should be considered for the next stage of the selection process until the applicant pool is narrow enough to make a final hiring decision. Legal defensibility of this first hurdle was a large focus of the presentation. Specifically, case law was summarized and agency guidance was shared with the audience. The tutorial was useful in guiding participants through reviewing and critiquing example job postings with minimum and preferred qualifications. Additionally, information was shared on best practices to follow when creating minimum qualifications. A take-away message from this session was to create minimum qualifications from a job analysis and maintain documentation of the validation process in order to support legal defensibility of this first selection step.


Practical and Legal Considerations for Alternative Validation Strategies

Presenters in this symposium discussed non-traditional validation procedures in organizations. Oftentimes, traditional test validation procedures are challenging to conduct due to small applicant or incumbent sample sizes, unique jobs, insufficient job performance data, etc. Alternative validation strategies from the viewpoints of various organizations were presented, with subsequent insight from the forum’s discussant.

Experiences with synthetic validation and test transportability strategies dominated the symposium. Examples of synthetic validation—a technique in which job component validity is inferred based on job analysis research—were provided by one presenter, for the complex job of astronaut. Using this technique, a literature review for similarly complex positions is conducted, job components and performance predictors are identified, and component validities are synthesized into one overall validity coefficient. A separate presenter (acting on behalf of an absent one) indicated, however, that the legality of synthetic validation has not been tested by the Supreme Court. Additionally, according to the presenter, there may be trade-offs by using this method in the form of hampered diversity efforts. Test transportability—a strategy in which criterion-oriented evidence is transported from one job to another similar job—was discussed as another potential alternative strategy. This technique is also endorsed by the Uniform Guidelines.

The discussant, Dr. S. Morton McPhail (The Corporate Executive Board), offered his perspective on alternative strategies, and provided his expert views to the presenters and the audience. Dr. McPhail generally supported the use of alternative validation strategies, such as synthetic validation or transportability, in certain situations. One recommendation when relying on the synthetic validation strategy, though, was the consideration of dissimilar jobs that have common job components, as they can be just as useful as leveraging information from similar jobs with common job components. However, maintaining a continuously updated job analysis database is also prudent. Regardless of whether synthetic validation or transportability research is conducted, Dr. McPhail suggested that it should be done rigorously using solid science, along with well-documented procedures. This approach will result in the most benefit both in terms of utility and legal defensibility.


Inconsistencies in Understanding and Application of I/O Science 

Several well-known Industrial/Organizational psychologists spoke on the issue of misuse or misinterpretation of the science in the applied world, more specifically in employment legal matters. Chester Hanvey, Kayo Sady, James Outtz, and Arthur Gutman each spoke about an aspect of I/O science, with Wayne Cascio serving as the discussant.

Interestingly, Dr. Outtz argued that I/O psychologists are not doing their part to correct the misapplication of science in the field. He stated that I/O psychologists often fail to engage in the self-evaluation needed to “sharpen key concepts/theories”. He noted that although cognitive ability tests are great predictors of performance, it is a gross over assumption that they are always the single best predictor of all outcomes, or that lessening the use of them would lower the standards of a selection model. Another notable point of the session, made by Dr. Sady, was the common misinterpretation of “standard deviation” test. Although the courts typically refer to a group difference of more than two standard deviations to be a “gross” disparity, the courts often should be referring to the standard error. Conflating the two terms confuses a measure of sampling variability (standard error) with one used to determine effect size (standard deviation). The confusion is problematic given recent calls to focus on both effect size and statistical significance when evaluating the importance of scientific findings. Dr. Hanvey emphasized the confusion over the use of statistics in certifying classes in the legal context, while Dr. Gutman focused on misinterpretations of subjective selection procedures and the fact that there are steps that can be taken to ensure that they are legally defensible. Dr. Casio shared experiences that highlighted all of these inconsistencies in practice.


Legal Update: Recent Cases, Trends and Implications for I/O Practice

This roundtable session presented by Keith Pyburn, Jr. and John Weiner offered three primary takeaways for DCI clients concerning (a) permissible post-administration adjustments to test scoring protocols, (b) the requirement to search for alternative selection measures, and (c) the generalizability of job analysis results from one location to another.

The Supreme Court’s decision in Ricci v. DeStefano provides the foundation for issues concerning post-administration scoring adjustments. In the case, the court found that, consistent with the Civil Rights Act of 1991, it is an illegal practice to discard test results based on the distribution of pass rates according to protected status. The Ricci case has already been cited by 52 Federal Courts of Appeal, and although the implications of Ricci are still evolving, case law points toward the illegality of making post-administration scoring protocol adjustments with the goal of achieving smaller differences between groups within a protected status variable.

The session presenters discussed whether the Ricci decision, and subsequent related case law, muddies the waters around what constitutes a reasonable alternative as specified by UGESP, as it may be illegal to substitute a test with small subgroup differences for one with large subgroup differences if the validity coefficient associated with the former test is even slightly smaller than the validity coefficient associated with the latter test.

The third takeaway is based on a recent ruling in the M.O.C.H.A Soc’y v. City of Buffalo. At issue in the case was whether a firefighter promotional exam based on job analysis data collected statewide, and with data from a small number of Buffalo firefighters participated, can be used to promote City of Buffalo firefighters. Essentially, the issue is whether the results from a sound job analysis can be transported or generalized to locations in which incumbents provided no job analysis data or in which incumbent data were underrepresented in the larger set of data. The court found that, indeed, employer-specific data are not a necessity for the employer to meet its burden at the second stage of an adverse impact case. This ruling has important implications for the defensibility of alternative validation strategies based on validity generalization, and it will be interesting to see how the ruling plays out in later case law.

Tuesday, April 23, 2013

COURT FINDS STOCK STATISTICS SUFFICIENT FOR SYSTEMIC DISCRIMINATION WHEREAS APPLICANT FLOW DATA ARE UNNECESSARY

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is EEOC v. Bass Pro Outdoor World (BPOW) decided on March 18, 2013 by District Court Judge Keith B. Ellison of the District of Texas, Houston Division [2013 U.S. Dist. LEXIS 36711]. As far as pattern or practice cases go, this one is not unusual. Rather, my interest in it stems from the distinction made by Judge Ellison between stock and flow data. I've written on the stock versus flow statistics in several Alerts, and for those already familiar with this distinction, please indulge me as I explain to others.

Stock statistics generally form the basis for pattern or practice cases, and are of two types: (1) comparisons between two different workforce stock statistics, as in long distance versus short distance bus drivers in Teamsters v. US (2007) [431 U.S. 324], and (2) composition in the workforce compared to composition in the labor pool as in percentage of blacks in the school district versus percentage of qualified and available backs in Hazelwood School District v. United States (2007) [433 U.S. 299]. Flow statistics, on the other hand, generally form the basis for adverse impact, and are also of two types: (1) selection rate differences between two or more classes of actual applicants, as with cognitive test scores for blacks versus whites in Griggs v. Duke Power (1971) [401 U.S. 424], and (2) selection rate differences for chilled applicants who do not meet a stated requirement, as in the high school diploma in Griggs and height and weight requirements in Dothard v. Rawlinson (19770 [433 U.S. 331].

My interest in this distinction was originally piqued by the ruling in Wards Cove v. Atonio (1989) [490 U.S. 642] in which stock statistics were used as a basis for a controversial adverse impact ruling (later overturned in the Civil Rights Act of 1991). The issue in Wards Cove was the same as in Teamsters (i.e., minorities congregated into lower paying jobs and non-minorities congregated into higher paying jobs). This brings us to the present case.

As I noted above, the facts of the case are not that remarkable given the run of more well known cases on “systemic discrimination” (code phrase for pattern or practice of discrimination). The EEOC alleged that there was a hiring preference for whites via a company-wide “profile” that resulted in statistically significant differences favoring whites over blacks in 24 out of 56 stores nationwide, and whites over Hispanics in 17 stores when comparing percentages at the stores versus percentages available in the various populations. BPOW argued that these data should be thrown out in favor of applicant flow data within each of the suspect stores. Forgive the length of the following quote, but here’s what Judge Ellison said to that:
Defendants argue here that the statistical evidence should be disregarded because it is not applicant flow data. If provided, flow data would measure the percentage of all applicants actually hired to establish the expected outcome. For example, if 1000 people applied and 100 were applied, then the overall hiring rate would be 10%. With neutral hiring, the expected hiring rates for all classes would be 10%. Applicant flow can sometimes be a more accurate measure of an employer's hiring practices than general population comparisons when, for example, a greater percentage of qualified Blacks apply for work than qualified whites. …. However, applicant data "is frequently unavailable, and, when available, it is often distorted by inadequate or excessive recruiting efforts, improper deterrence of applicants, unqualified applicants, multiple applications by the same applicant, or lack of specificity or improper groupings …… Furthermore, while applicant data might be relevant, "(t)he absence of such evidence, however, will not prevent plaintiffs from recovering. ….Taking Plaintiff's facts as true, most positions at BPOW require no formal training. Thus, the percentage of minorities in the county can be compared to the percentage within the relevant store to provide reliable statistical data regarding Defendants' hiring practices, at least at the 12(b)(6) stage. 
There is more, but key is that this is the first Title VII case I can remember (help me out if I’m wrong) where a judge at least came close to saying stock statistics are sufficient for pattern or practice cases and applicant flow data apply more so to adverse impact cases. Of course, those of you that are federal contractors know that this distinction doesn’t apply to contemporary OFCCP enforcement, where analyses of applicant flow data are very often used in pattern or practice allegations.

DISTRICT COURT AFFIRMS UPMC HOSPITALS ARE FEDERAL SUBCONTRACTORS

by Amanda Shapiro and Joanna Colosimo, DCI Consulting Group

Three hospitals affiliated with the University of Pittsburgh Medical Center (UPMC) were considered subcontractors by District Court Judge Friedman on March 30, 2013. The case is UPMC Braddock v. Harris and includes UPMC Braddock, UPMC McKeesport and UPMC Southside as plaintiffs. The three hospitals were first audited by OFCCP in January 2004, at which point all three contested their status as a federal subcontractor. OFCCP filed administrative complaints against the hospitals, which were affirmed by an Administrative Law Judge (ALJ) in 2008 and Administrative Review Board (ARB) in 2009. UPMC then appealed the ARB ruling in Federal District court.

In this case, the hospitals had a contract with UPMC Health Plan, a health maintenance organization (HMO), to provide medical services and supplies. UMPC Health Plan additionally had a prime federal contract with the U.S. Office of Personnel Management (OPM). The hospitals disputed their obligations under Executive Order 11246 due to the definition of “subcontractor” included in the contract between UPMC Health Plan and OPM. As cited in the UMPC v. Harris case above, “subcontractor” was defined with the following exclusion clause: “except for providers of direct medical services or supplies pursuant to the Carrier’s health benefits plan”.

Judge Friedman ruled that even though the contract was explicit, it does not override a federal statute. Further, the court sided with the Department of Labor, stating that “Generally, a provision in a government contract that violates or conflicts with a federal statute is invalid or void”. Judge Friedman interpreted that the relationship between the Pittsburgh hospitals and the HMO met the regulatory definition of “subcontractor” and the medical services and supplies that the hospitals provided were necessary for UPMC to meet the obligations of their contract with OPM. Another key takeaway is that prime and subcontractor consent of obligations is not required under Executive Order 11246, Section 503 of the Rehabilitation Act, or Section 4212 of the Vietnam Era Veterans’ Readjustment and Assistance Act (VEVRAA). Although UMPC Braddock Hospital argued the contract with UMPC Health Plan did not include the required EEO clauses, Judge Friedman ruled that this does not preclude the hospitals from their federal obligations. Thus, even if the prime contractor does not notify the subcontractor of the government relationship, the subcontractor status still exists and will be subject to affirmative action obligations as a result of this ruling. 

Stay tuned for more information on the implications of this ruling in a future client alert.

COMPLIANCE EVALUATIONS: FROM COURTESY LETTER TO SCHEDULING LETTER

by Yevonessa Hall and Keli Wilson, DCI Consulting Group

Given the recent wave of OFCCP courtesy letters sent to federal contractors this month, we thought a short review of the process in moving from courtesy letter to scheduling letter would be of interest to readers of this blog. The OFCCP utilizes the Federal Contractor Selection System (FCSS) to identify federal contractor and subcontractor establishments for supply and service compliance evaluations. The FCSS is programmed to create a computer-generated list of selected establishments in an administratively neutral manner employing various sources (e.g., EEO-1 reports, government contracting database, and Dun & Bradstreet data). This list is maintained in a computer system and distributed by the OFCCP National Office to each respective Regional/District office as appropriate. The Regional/District offices are required to schedule the federal contractor establishment identified on the FCSS list in sequential order or must record the reason(s) for not scheduling in that order. Notice of an official compliance review will be in the form of an Office of Management and Budget (OMB) approved scheduling letter sent via certified mail to the selected establishment. Receipt of this letter will initiate a thirty day submission period for the federal contractor or subcontractor to provide the OFCCP with all requested items described in the letter. At the conclusion of the compliance evaluation, the establishment can not be scheduled for another review for 24 months from the date of closure.

DCI Consulting Group (DCI) is aware of a wide-spread concern within the contractor community in regard to recent contractor audit selections. This concern is due to an increase in the number of courtesy letters received or compliance reviews initiated within a corporation in a limited period of time. The contractor community is wondering what changed with the administratively neutral selection process that has created this increase in activity. Some have gone so far to question the process with OFCCP personnel. The response provided by OFCCP personnel is limited to verbiage similar to that found in the frequently asked questions section of the website: http://www.dol.gov/ofccp/regs/compliance/faqs/fcssfaqs.htm. If relevant context warrants concern about the audit selection process, it may be reasonable to approach OFCCP on the matter. However, OFCCP typically takes challenges to the FCSS very seriously, and will likely attempt to justify the selection process. The contractor would need to decide whether the justification from National Office is satisfactory or not, and if not, the next step would be to withhold submission of desk audit materials, receive a show cause letter, and wait for the OFCCP to take the case to the Office of the Solicitor of Labor (SOL). Auditing a location that no longer exists, has an open audit or one that has an audit that closed within the two year grace period would be examples in which DCI would encourage communicating questions or concerns with the OFCCP.

As the above scenario illustrates, maintaining open lines of communication with OFCCP is very important, particularly in situations where the audit selection process may not be intuitive. DCI also encourages a number of strategies to ensure that the beginning of the audit process moves smoothly, including taking a proactive and timely approach to annually updating affirmative action plans, as required in the federal regulations. By staying current on compliance initiatives, the courtesy letters and compliance evaluations will be more manageable for all parties involved in the process. This allows for additional courtesy time to be spent communicating awareness to key personnel, ensuring data integrity of the plan, and gathering support documentation. Additional actions can be taken to fully prepare for a compliance evaluation, as referenced in the following blog.

OFCCP AUDIT PUNCH LIST

by Jana Garman and Marcelle Clavette, DCI Consulting Group

Given the recent wave of OFCCP courtesy and scheduling letters, we thought that a blog on early preparations in the OFCCP audit process would be of interest. Recall that all federal contractors and subcontractors in receipt of a supply and service scheduling letter are required to submit an initial desk audit package to the OFCCP compliance officer. Initial submission items to prepare include an affirmative action plan and support data per the Scheduling Letter itemized listing.

However, being prepared for an audit goes beyond the itemized listing in an OFCCP scheduling letter. What follows is a punch list of the additional items contractors can organize to be more fully audit ready. This punch list was created based on federal requirements, as well as frequently requested supporting materials during compliance evaluations. Note that supplemental material may vary by region and compliance officer.
  • VETS-100A report (most recent copy) 
  • Documentation of outreach/recruitment efforts for qualified Individuals with Disabilities and covered Veterans 
  • Documentation of state/local employment job postings 
  • Documentation of good faith efforts addressing underutilized job groups 
  • Company handbook (e.g., inclusive of company policies on promotions/ terminations) 
  • Current job descriptions 
  • Blank application form 
  • Invitation for applicants to self-identify their race/ethnicity and gender; indicate at which step of selection process they are invited to self-identify 
  • Invitation for applicants to self-identify their Disability and Veteran status; indicate at which step of hiring process they are invited to self-identify 
  • Number of individuals who self-identified as having a disability and accommodations provided 
  • List of jobs with medical restrictions and how restrictions are related to essential job functions 
  • Statement identifying positions requiring a pre-employment/promotional physical examination and how it relates to successful performance 
  • Accessibility of online application systems 
  • Section of purchase order/sub-contract with EEO Clause reference 
  • Verification that required notices are posted in common areas for employees to view 
  • Additional compensation data for employees in workforce 
  • Detailed explanation of pay differences between individuals 
As a reminder, record-keeping obligations extend past the two year requirement for establishments with an active compliance review. Be sure to communicate this additional record-keeping obligation to personnel involved in maintaining records. We hope that this punch list is helpful, and suggest that if this list is in order, federal contractors would be prepared for just about any path that an OFCCP audit takes.

Tuesday, April 09, 2013

U.S. CENSUS BUREAU RELEASES DISABILITY EMPLOYMENT TABULATION

by Margaret Lentz and Fred Satterwhite, DCI Consulting Group

In an announcement released on March 14th, the U.S. Census Bureau discussed the unemployment rate of workers with disabilities based on the new Disability Employment Tabulation. The statistics show that individuals with disabilities only account for 6% of the labor force, with more than 50% of disabled workers limited to jobs in four general occupation groups: service workers (18.2%); administrative support (15.1%); sales workers (10.4%); and management, business and finance (8.9%).

Within these job groups, the most common occupations are: janitors and building cleaners; drivers/sales workers and truck drivers; cashiers; retail salespeople; dishwashers; refuse and recyclable collectors; and personal care aides. More than half of the workers with disabilities were found to earn about 75% of what equally situated workers without disabilities would earn.

The Census Bureau will release the data in its entirety by the end of April. DCI will provide further information about the Disability Employment Tabulation in future posts.