I was recently asked by a colleague if the Office of Federal Contractor Compliance Programs (OFCCP) would pursue a case of discrimination against a Non-Minority (whites) or a male for adverse selection or compensation disparities of what have been referred to as the non-protected groups (whites/males).
Since 2008 we have seen OFCCP begin focusing on adverse impact with sub-minority groups, males and whites. This trend is catching many contractors off guard, though we have been telling our clients about it for several years.
We (CRI) have been involved in settlements with OFCCP were they determined that white males were being paid less than females.
According to the Uniform Guidelines on Employee Selection Procedures “A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact…”
In the past audits of contractors Affirmative Action PLan, OFCCP seemed to walk past discrimination due to their traditional approach in comparing males vs. females, minorities vs. non-minorities. Currently OFCCP advocates the use of a “compare to highest selected methodology”, meaning that males and whites are no longer being considered the advantaged group or referent group. OFCCP has settled cases where white and male applicants were members of the disadvantaged group and as such are afforded protection under EEO and Affirmative Action laws that prohibit discrimination on the basis of race and gender – no matter what your race or gender happens to be.
The OFCCP’s settlement with Tyson Refrigerated Processed Meats highlights a this trend. OFCCP settled the case with Tyson after finding evidence that the company had discriminated against 157 African-Americans and 375 Whites when compared to similarly situated Hispanic applicants over a two-year period. Coca-Cola Bottling Company also settled a similar.
We have always encouraged our clients to be diligent with thier selection practices (hires, promotions and terminations) as well as their pay practices to ensure that all groups are treated equally. OFCCP during the Audit of your Affirmative Action Plan and your data will conduct the adverse impact and compensation analysis mentioned above in order to ensure that disparities do not exist in these areas. If they do, you must be able to explain them away or be prepared to pay the affected class individuals back pay and make whole relief.
Who is Career Resources, Inc.
Founded in 1979, Career Resources is a privately owned company which develops Affirmative Action and Diversity Plans, provides Diversity and Affirmative Action Planimplementation, online e-Learning courses, Sexual Harassment Training, EEOC and OFCCP vulnerability audits, OFCCP audit support used by hundreds of organizations nationwide including fortune 500 companies and small/medium size businesses in all industries.