A second round of mandatory EO Surveys is being sent to approximately 10,000 federal contractors this week, announced Charles James, Director of the Office of Federal Contract Compliance Programs ("OFCCP"), on December 3, 2002. The recipients were selected at random, James said. The format of the latest round of EO Surveys will be identical to the format of the first round, which was sent in January 2001. This time, the deadline for completion will be 90 days from receipt.

Recipients should be aware that, in addition to requesting detailed information on compensation, employment activity, and seniority, the EO Survey also requires respondents to certify, under penalty of perjury, that they have a current affirmative action plan.

The original round of EO Surveys was sent to approximately 50,000 federal contractors in January 2001, with a 45-day completion deadline that was later extended more than two months. The surveys requested detailed information on compensation, employment activity (applicants, hires, promotions, and terminations), and seniority. The stated purpose was to allow OFCCP to identify potential discrimination issues and to "target" contractors with issues for a more detailed review by the agency.

It is no secret that OFCCP Director James is not satisfied with the current EO Survey. In his announcement on December 3, James said that he is exploring the development of a more reliable survey model that will accurately evaluate discrimination. To that end, James said, the OFCCP has employed ABT Associates, an international policy research and consulting firm based in Cambridge, Massachusetts, to evaluate the future utility of the survey. ABT will also analyze the information submitted by contractors in response to both rounds of surveys. James said that this is "not a short-term project" and would not identify a specific deadline for completion of ABT’s evaluation.

The bottom line: James has taken to heart the contracting community’s criticism of the EO Survey, which ultimately may result in a "new and improved" survey that will effectively zero in on genuine employment discrimination and pay disparities while not unduly burdening contractors who do not have such problems.

Mandi Smith T (Birmingham, AL) and Rosemary Lumpkins (Atlanta, GA) are the co-chairs of Constangy, Brooks & Smith’s Affirmative Action Practice Group. Should you have questions or need assistance responding to the EO Survey or in preparing or updating your company’s affirmative action plans and programs, please contact Mandi at (205) 252-9321 or Rosemary at (404) 525-8622; or any member of the Affirmative Action practice group; or the Constangy attorney of your choice.

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