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 (www.SchuylerAAP.com) 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 (levin-naomi@dol.gov).
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 eeodoctor@q.com.
Jose Franco
The EEO Doctor, Inc.
210 E. Pinion Way
Gilbert AZ 85234
Phone: (480) 503-4836
Fax: (480) 503-4836
DoctorEEO@telefonica.net
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.
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