Criticism of OFCCP won't give contractors any satisfaction

Angelique Lyons
Angelique Lyons

According to a study recently published by the U.S. Government Accountability Office, there are indications that the Office of Federal Contract Compliance Programs is not effective in stopping discrimination.

But before contractors get excited, they'd better take a look at the reasons. According to the GAO study, the OFCCP doesn't focus its efforts at those federal contractors and subcontractors posing the greatest risk. The GAO also found that many contractors are probably not complying with the requirement to annually update their written affirmative action plans.

Specifically, the GAO noted the following when reviewing supply and service contractors:

  • Since 2010, only 2 percent of OFCCP compliance reviews resulted in a finding of discrimination. The GAO believes this means the OFCCP’s method of selecting contractors for evaluation is not aimed in the right direction.
  • In 2015, 85 percent of the contractors selected for a compliance review did not provide their written AAPs within the required 30 days but instead sought extensions of time. According to the GAO, this probably means that most federal contractors and subcontractors do not have current written AAPs that are updated annually.

To address these and similar concerns, the GAO has made the following recommendations to the OFCCP:

  • Change the manner in which contractors are selected for compliance audits to focus more “on those contractors with the greatest risk of not following equal employment opportunity and affirmative action requirements.”
  • Create a mechanism to ensure that contractors are truly updating their affirmative action plans on an annual basis. The GAO suggests that such mechanisms “could include electronically collecting AAPs and contractor certification of annual updates.”

If the OFCCP follows these recommendations, we could see significant changes in the manner in which contractors are selected for compliance reviews, allowing the OFCCP much more discretion to scrutinize particular industries or employers.

Perhaps more important, contractors could be required to file their affirmative action plans with the OFCCP on an annual basis as a matter of course, regardless of whether they have been selected for a compliance review.

These are only recommendations, but they provide some insight into what we can expect from the OFCCP in the future.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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