For several years, I have been assisting Arizona State University and Maricopa County Community College District EEO officials update their AAPs, revise their recordkeeping processes, and analyze their applicant, selection, hire, promotion, retention, and compensation data. Recently, I’ve been helping with implementing the recordkeeping, notification, and other new Section 503 and VEVRAA requirements. During my EEO career, I have worked on, with, or for thirteen (13) colleges and universities.
I attended this year’s Conference because AAAA is the premier and only organization I am aware of that provides specialized guidance to colleges and universities on applying the OFCCP’s regulations to the distinct employment setting of colleges and universities, where recruitment, selection, advancement, compensations practices significantly differ from other federal contractors.
I took in 10 of the workshops, speeches, and panels in this very successful and gratifying gathering of admired and respected EEO Practitioners, was moved to write about my experiences, and am grateful for this opportunity to share my “takeaways”.
Wednesday, June 5th
(1) Final Regulations: Veterans and individuals with disabilities – Before discussing his recommendations for effectively responding to the OFCCP’s Compensation Initiatives, Mickey Silberman (Jackson Lewis P.C. http://www.jacksonlewis.com ), one of the most authoritative EEO/Compliance attorneys who I have enjoyed the privilege of learning from and consulting with, offered the following recommendations and information:
1. Federal contractors should conduct annual “pay equity” analyses by title and report positive results in their Executive Order AAPs, after adjustments are made
2. The OFCCP is planning to issue proposed regulations requiring federal contractor reporting of compensation data and making pay public knowledge in August and September.
3. The OFCCP will issue proposed regulations in October for implementing the new minimum wage for all federal contractor employees.
Mickey then made the following recommendations
4. Brief senior management regarding the significant new IT, recordkeeping, monitoring, and outreach obligations that are significantly increasing compliance costs.
5. Don’t begin compiling 503/VEVRAA data until January 2016
6. Issue the post offer invitations to self-identify during employee orientations.
7. Conduct surveys of all employees regarding disability and veteran status during the first year and in 5 year intervals. Survey veterans at the same time as IWDs.
8. Conduct your 1st survey before the 1/1/2015 update, e.g. 9/2014 but don’t tell the OFCCP.
9. Conduct analyses under attorney-client “privilege”.
(2) Are There Options for Faculty Job Grouping?
George Desloge & Anna Nesterenko of the ERS Group (http://www.ersgroup.com/ gave a comprehensive, intelligent, thought provoking, and dialogue inducing presentation highlighting the various methodologies that colleges and universities can use to construct groups of jobs with “similar content, wage rates, and opportunities” for the purpose of analyzing statistical availabilities.
They advised that faculty job groups can be constructed consistent with IPEDS categories and the way that institutions report demographic data, and that tenure status, discipline, and/or faculty rank can also be used to configure job groups on which availability analyses are conducted, goals established, and personnel activity data monitored and analyzed under the Executive Order and Section 503 regulations.
They presented a comprehensive list of relevant and useful data resources for calculating external benchmark availabilities.
They discussed whether Executive Order, Section 503, and Protected Veterans AAPs should include and cover every job title in the institution’s payroll records. The data obtained by the Academic Discussion Group indicates that most colleges and universities lack the administrative mandate and administrative and human resources needed to include, cover, track, analyze, and respond to part time and temporary academic job titles. None of the attendees in this crowded and conversation provoking workshop voiced disagreement with this interpretation of the regulation but everyone seemed to understand that these problems are not within their spans of control.
(3) DOL’s results oriented affirmative actions to help “individuals with disabilities” in the public & private sectors
Kathleen Martinez of the DOL’s Office of Disability Employment Policy (ODEP) gave the attendees an overview of the Department of Labor’s significant “game changing” accomplishments and progress in promoting employment opportunities for individuals with disabilities.
The Workforce Recruitment Program (WRP) connects federal and private sector employers nationwide with highly motivated college students and recent graduates with disabilities who are eager to prove their abilities in the workplace through summer or permanent jobs.
DOL’s Employer Engagement Strategy, which focuses on engaging federal contractors to systematically provide access to individuals.
Ms. Martinez’ unprecedented educational and coalition building accomplishments and the OFCCCP’s new crop of knowledgeable and articulate employees have made it easier to understand, implement, and comply with its new challenging requirements, if provided administrative support and human resources.
(4) Pay Equity for Academic Institutions
Marilynn Schuyler of Schuyler Affirmative Action Practice () and Inderdeep Chatrath, Duke University’s Director of Affirmative Action & Equal Opportunity, led the workshop through a spirited discussion about how the OFCCP ‘ Compensation Directive might be applied to academic institutions, the impacts of the OFCCP’s focus on the total compensation paid to employees and not just basic pay rates, the complications resulting from faculty and other employees having multiple job assignments that impact pay and dictate the job titles listed in the workforce analysis, which makes investigating total compensation more complicated for the government and the institution. They requested input regarding what AAAED can and should provide to the OFCCP that will systematically consider compensation factors unique to the academic sector including more appropriate measurements when determining whether the data reveals or indicates there are gender, race, or ethnicity based compensation “disparities”.
(5) Best Practices for Defending an OFCCP Investigation of Compensation
Linda Cavanna-Wilk, Esq. of FordHarrison LLP (http://www.fordharrison.com/AffirmativeAction) reported that OFCCP audits during FY 2013 resulted in 19 compensation discrimination cases and advised that, in keeping with its lead role in President Obama’s compensation initiatives, the OFCCP will soon hire 10 more statisticians and will be under public scrutiny and pressure to demonstrate results.
She advised federal contractors to be prepared to defend their compensation practices using cohort and systemic (multiple regression) analyses and recommended that contractors first conduct systematic reviews of their compensation, policies, procedures, and practices which will result in more appropriate measurements of the actual impact of compensation practices and more intelligent analyses.
She recommended that federal contractors (1) identify factors that influence compensation, (2) develop specific criteria for compensation decisions (3) train supervisors and managers, (4) conduct proactive/periodic statistical analyses of compensation (5) review salary structures and job classifications, (6) examine salary administration policies and practices, and (7) assess performance measurements, starting pay policies and practices, merit pay increases, promotional pay increases.
Consistent with other members of the Bar who I’ve heard address this hot topic, she advised that compensation self- audits be confidentially conducted using the “attorney-client privilege”.
Ms. Cavanna-Wilk recommended that, to prepare for successfully traversing OFCCP compensation audits and investigations, federal contractors should (1) review job title and salary data for accuracy, (2) submit data by job title, (3) conduct a mean analysis to identify red flags, (4) begin investigating the red flags, and (5) communicate with managers and compensation personnel and ensure that they understand and can clearly articulate to OFCCP officials, compensation practices and policies and the factors affecting compensation.
She also advised that, during compliance evaluations, federal contractor representatives should actively and diplomatically try to narrow the scope of the OFCCP’s investigations by researching the areas that the OFCCP identifies, preparing written explanations of job related reasons for compensation differences, preparing witnesses, and hiring experts to refute the OFCCP’s findings
(6) AAAA Business Meeting
In addition to reviewing and approving financial reports and processing the election of new officers and after an extended emotional debate, the membership of AAAA (The American Association for Affirmative Action) voted to change its name to AAAED (The American Association, for Access, Equity & Diversity).
(7) 50TH Anniversary of the Civil Rights Act of 1964
A distinguished, knowledgeable, and directly involved and experienced panel featuring Catherine Lhamon of the US Department of Education, Jennifer Tucker of the Center for Women Policy Studies, Dennis Dickerson of Vanderbilt, Reavis Mitchell of Fisk, and Carmen Suarez of the University of Idaho discussed the harrowing little known events that resulted in the passage of Title VII including the less than noble reasons why gender was added to the Act.
(8) The EEOC’s Strategic Plans
Claudia Withers, the EEOC's COO, provided attendees with information on the dynamics of the EEOC's strategic plans from 2012-2016 and advised that the EEOC's current priorities are:
1. Eliminate barriers in recruitment and hiring.
2. Protect immigrants, migrants, and other vulnerable workers
3. Address (a) reasonable accommodation under the ADA, (b) accommodation for pregnancy related limitations under the ADA and Pregnancy Discrimination Act, and (c) coverage of LGBT individuals under Title VII’s sex discrimination provisions.
4. Enforce equal pay laws.
5. Preserve and improve access to the legal system.
6. Prevent harassment.
(9) Developing Defensible Basic Qualifications in Light of VEVRAA & Section 503
Regulations: Good Intentions Are Not Good Enough
Heather Patchell and Jim Kuthy. two of the dynamic and knowledgeable presenters and experts of the venerable cutting edge Biddle Consulting Group (http://www.biddle.com/) led the workshop attendees through an engaging discussion and clarification of the systematic actions and methods that federal contractors need to take and employ in order to develop basic qualifications in light of Title VII, the Uniform Guidelines on Employee Selection Procedures, and the VEVRAA, & Section 503 regulations, for which the definitions of “basic qualifications” has been modified to determine whether the job seeker has the ability to perform the “essential functions of the job with or without reasonable accommodations”.
They pointed out some pitfalls and challenges of (1) education requirements, (2) using grade point averages to screen applicants, and (3) distinguishing between preferred vs. objectively qualified, all of which are subject to the validation requirements of these laws and regulations. They also described and illustrated the forms that they use to conduct a valid analyses of basic qualifications for specific jobs, offered to make them available upon request, and recommended that basic qualifications be reviewed on each opening.
(9) Past, Present, Future of AAAA
Another distinguished and accomplished panel composed of QUAD A’s past presidents discussed their experiences and contributions, shared anecdotes from this unique organization’s 40 year history, and shared their views of the reasons why “affirmative action”, as “we people” understood the term, is passé and no longer relevant.
They also discussed the impacts of the recent Supreme Court decision validating Michigan’s Ward Connerly inspired “popular” vote prohibition of this much misunderstood chapter of our nation’s recent history and agreed that the undeserved widespread media fed anger at and resentment of these two words justified the name change.
“Affirmative action” is dead. Long live “Access, Equity, & Diversity”.
Friday, June 6
(11) Shiu’s Closing Keynote
OFCCP Director, Patricia Shiu, closed the Conference by thanking her good friend, the iconic and stalwart OFCCP Director and AAAED Executive Director Shirley Wilcher, praising “Access, Equity, and Diversity” ‘s accomplishments and contributions, reporting President Obama’s recent actions to end pay secrecy and collect pay data from federal contractors, and announcing that “we are on a roll”. I believe her.
She noted that one of the Great Recession’s many negative impacts has been the understaffing of HR, an ongoing critical need of many if not most academic EEO officials, asserted that the price of federal contracts is compliance, which is not optional, and promised that she will continue to make the case for sufficient resources.
She told the attendees that (1) the much discussed Compensation Directive 307 follows Title VII principles, (2) the OFCCP’s focus has shifted from hiring issues, (3) the OFCCP has devoted significant resources to internal training to promote consistency and to developing and disseminating FAQs, and (4) the OFCCP’s Sex Discrimination Guidelines and federal construction contractor regulations will soon be updated, revised, and issued for public comment.
She advised that failure to achieve the “aspirational goals” and “benchmarks” contained in the newly effective VEVRAA and Section 503 regulations will not be a violation but that failure to try will.
She urged federal contractors to “look how you post your jobs”.
She announced that there will soon be public service announcements about the voluntary self id process that will be designed to address the “culture of fear” and promote voluntary disclosure.
After responding to several questions, she closed by advising that she is aware of contradictions between IPEDs and EEO categories and referring a question about the inclusion of temporary workers in college and university AAPs to Naomi Levin (email@example.com.
This has been my story of my personal experiences attending this worthwhile conference. I’m sticking to it and will be available for follow-up dialogues with any all about these teachings and learnings via firstname.lastname@example.org.
The EEO Doctor, Inc.
210 E. Pinion Way
Gilbert AZ 85234
Phone: (480) 503-4836
Fax: (480) 503-4836
Jose Franco, the "EEO Doctor" provides EEO and Affirmative Action compliance services including preparation of Affirmative Action Plans, assistance with compliance reviews, and investigation of discrimination charges, including preparation of written defense materials. Jose has a great deal of experience dealing with the EEOC and the OFCCP, both as Director of the OFCCP's Phoenix District Office, and as a consultant to client companies in a wide variety of industries, municipalities, and tribal governments. He has helped clients save time, money, and anguish, and achieve confident cost-effective, transparent, clear compliance with the laws and regulations mandating nondiscrimination and affirmative action.
Jose holds a BA in Political Science from Duke University.