OFCCP Weekly Review, Special Edition | Recap of the second day of DEAMcon22 | Direct Employers Association

Fox and Chambers conducted a mock OFCCP audit covering ‘hot’ compliance issues

During a mock on-site audit between the OFCCP and “The Good Guys, USA”, John Fox and Candee Chambers illustrated some burning issues the agency is currently focusing on. John portrayed the OFCCP compliance officer and Candee played the company representative. The mock audit addressed four issues.

First, the VEVRAA “listing v posting” problem. John accused The Good Guys of not “publishing” their job vacancies. However, Candee pointed out that the VEVRAA regulations (41 CFR §60-300.5(a)(2)), instead require covered contractors to “list” all job vacancies – for jobs lasting longer than three days and not involving a managerial or senior management position – with the delivery system Services (ESDS) “appropriate” in the “manner and format” that ESDS “permits or requires”. OFCCP regulations never require a contractor to “post” their available jobs, a supported Candee and noted that “posting” is a “nice to have” activity to help recruiters find interested job seekers. It’s ESDS, a/k/a One-Stop/American Job Centers which then “posts” the job postings, not the entrepreneur, unless the entrepreneur later agrees to also “post” his job postings for his convenience, as DE does for his own account.Member companies in addition to the previous “list” of these same jobs.As a result, the applicable regulations oblige the Contractors to “list” jobs, rather than “post” their jobs (two different things). As a result, Candee pushed John to agree that he used the wrong language in accusing The Good Guys of not “advertising” his available jobs.

Second, John, as an OFCCP substitute, claimed he had “indicators” that The Good Guys “is and has been for some time unlawfully discriminatory in the selection of African Americans as production workers” for a specified job group. This part of the audit focused on the various legal requirements for statistical analysis in non-employment cases. Among the specific points made here was that “not the best qualified” is “the absolute worst disposition code on the face of the earth,” according to Candee. John momentarily joined Candee in “disguise” to explain that courts generally do not approve of this particular ruling code because it is not detailed enough to explain the “legitimate non-discriminatory reason(s). )” of the contractor so as not to advance the candidate in the contractor selection process.

Third, the agency claimed to have “indicators” that women were discriminated against in pay in the contractor’s entry-level “professional job” classification. Here, the interpreters illustrated the current efforts of the OFCCP to obtain internal analysis of contractor compensation, even those covered by solicitor-client privilege. Additionally, they covered when cohort analyses, as opposed to systemic analyses, are warranted, and what constitutes “similarly situated” employees.

Finally, John alleged that the contractor unlawfully discriminated under Executive Order 11246 against an incumbent transgender employee who was assigned female at birth but who, at the time of fictitious audit, was becoming a man. Good Guys denied the employee’s use of a men’s bathroom, even though he was under doctor’s orders to use them. Additionally, medical insurance plan The Good Guys denied the employee’s request to cover his upcoming gender affirmation surgery.

Candee maintained, however, that under the SCOTUS TWA vs. Hardison decision in the case, The Good Guys did not have to accommodate its transgender employee because the requested accommodations created an “undue hardship” for male users of the men’s bathroom. However, John clarified while costumed as OFCCP that the agency was not asserting a right to accommodation under Section 503 of the Rehabilitation Act. Instead, the employee was not asserting a disability right, but rather “a case of old-fashioned direct evidence of unlawful discrimination pursuant to Executive Order 11246,” asserted John, acting as a compliance officer. of the OFCCP. John then pointed out that the 2020 SCOTUS decision in the Bostock case found that Title VII’s sex discrimination prohibition had prohibited discrimination on the basis of gender identity since 1964, because such discrimination was ” because of sex”. Second, employers are not allowed to accommodate unlawful discrimination, Fox explained, stating that “[t]his gentleman simply asks not to be discriminated against because of his sex”, which is male. This was not a case of accommodation and whether the employee’s request, if honored, would cause “undue hardship”. Rather, it is a simple case of different treatment of employees, in this case because of that employee’s gender, John asserted on behalf of the OFCCP.

However, Candee had another winning argument up her sleeve: the SCOTUS’ 2020 Bostock The decision in the case, she argued, not only did not address the bathroom issue or the insurance issue, but the court had specifically reserve approach the problem of the bathroom in its Bostock case decision. So Candee triumphantly forced John to admit that these matters were open legal questions of first impression and that there was no settled law (yet) compelling The Good Guys to comply with the transgender employee’s request. . John then signaled that he would recommend the two application matters to the OFCCP Director to determine the policy course and to the attorney to determine the legal course.

To note: Candee and John put together this skit to illustrate the current uncertain state of the law. DirectEmployers, however, allows transgender employees to use the bathroom at work with which they identify, despite the uncertainty of the law on the issue of the bathroom.

Andrew B. Reiter