Evidence lacking to support OFCCP disability and veterans regulatory proposals, according to analysis of enforcement statistics by Center for Corporate Equality
Systemic discrimination against protected military veterans and the disabled is not occurring at a rate high enough to justify the major changes contained in the OFCCP’s pending proposals to amend its regulations implementing Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), according to a recent report issued by the Center for Corporate Equality (CCE). The CCE is a national, non-profit research organization. The report, entitled “A Review of OFCCP Enforcement Statistics Related to Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act” and dated July 2012, was announced earlier this month. In light of the pending OFCCP regulatory proposals, the CCE conducted an analysis of enforcement data related to charges of discrimination against protected veterans and individuals with disabilities. According to the CCE, the results of its analysis suggest that discrimination against protected veterans and individuals with disabilities, especially with regard to hiring, is not a frequent finding by the OFCCP and may not support the major shift in policy that the proposed regulations would bring.
Regulatory proposal regarding workers with disabilities. There is deep concern in the contractor community regarding the OFCCP’s pending proposal that would require federal contractors (and subcontractors) to set a 7 percent hiring goal for workers with disabilities and would impose increased data collection, recordkeeping, recruitment, training, and policy dissemination requirements. The OFCCP’s Notice of Proposed Rulemaking (NPRM) containing these and other proposed amendments to its regulations implementing Section 503 was published in the Federal Register (76 FR 77056-77105) on December 9, 2011.
Specifically, the OFCCP is suggesting that federal contractors would be required to set a hiring goal of having seven percent of their employees be workers with disabilities in each job group of the contractors’ workforce, but it is soliciting comments on the potential use of a utilization range between four and ten percent. To annually evaluate their utilization of individuals with disabilities, the NPRM proposes that contractors use the job groups established for utilization analyses under their Executive Order 11246 affirmative action programs. The proposed goal is derived primarily from disability data collected as part of the Census Bureau’s American Community Survey.
The comment period on this proposal closed on February 21, 2012, and approximately 540 comments were submitted. Those stakeholders opposing the proposal generally focused on their assertions that the regulations would not be effective as a practical matter and on the extraordinary cost burden of compliance.
Veterans’ employment regulatory proposal. Another much noted pending initiative is the proposal to revise the OFCCP’s regulations at 41 CFR Parts 60-250 and 60-300 that implement VEVRAA. This NPRM was published in the Federal Register on April 26, 2011 (76 FR 23358-23425), and the comment period ended on July 11, 2011.
The proposed changes would require contractors, for the first time ever, to establish annual hiring benchmarks (i.e. numerical targets) to assist in measuring the effectiveness of their affirmative action efforts, and it would increase data collection requirement on job referrals, applicants and hires. It would also clarify mandatory job listing requirements, under which a contractor must provide job vacancy and contact information for each of its locations to an appropriate employment service delivery system. In addition, it would require contractors to engage in at least three specified types of outreach and recruitment efforts each year and require that all applicants be invited to self-identify as a “protected veteran” before they are offered a job.
Approximately 110 comments were submitted regarding this proposal. The main concerns expressed by contractors was that the proposal focused on process over results, that it would be very burdensome and expensive to implement, and that it would ultimately not be very effective in its goal of increasing the employment opportunities of veterans.
CCE report. The CCE study sought to answer the question of whether there is evidence available to support the implementation of the pending regulations. Three publicly available data resources were used to summarize and interpret the OFCCP’s enforcement of VEVRAA and Section 503 since fiscal year 2004. These three sources include two Department of Labor databases of OFCCP compliance evaluations and complaint investigations, as well as the CCE’s database of OFCCP compliance reviews that resulted in a conciliation agreement alleging discrimination against a protected group. The data cover period just short of nine years, and, the CCE presumes, include a universe of approximately 285,390 federal contractor establishments. The organization noted that it had a gap in its data — the research is missing information from 2004 to 2006 for the CCE database. However, the CCE states it has recently submitted a Freedom of Information Act (FOIA) to the OFCCP seeking to obtain all settlements with findings of discrimination against protected veterans and/or individuals with disabilities from 2004 to present and that the CCE will produce a follow-up report once it receives this data.
The organization explains that “these data sources were analyzed using descriptive statistics to summarize historical enforcement patterns from September 2004 to June of 2012.” The report organizes the results into two different types of OFCCP enforcement: (1) proactive compliance evaluations, and (2) reactive complaint investigations. The CCE identified the following findings as being of particular interest.
With regard to complaint investigations, of the approximately 285,390 federal contractor and subcontractor establishments:
- The OFCCP fielded 871 veteran and/or disability complaints between 2004 and June of 2012. Of these 871 complaints, 60 (6.89 percent) resulted in a violation, an average of 6.67 violations per year.
- Approximately 95 percent of all complaints closed without a finding of discrimination involving protected veterans and/or individuals with disabilities.
- Importantly, the vast majority of these 60 settlements were technical violations (e.g., record-keeping), rather than violations indicating systemic discrimination.
- Based on analyses of complaint data from 2004 to June 2012, it is estimated that less than 0.021 percent of the 285, 390 federal contractor establishments are likely to have a finding of discrimination with regard to protected veterans or individuals with disabilities.
With regard to compliance evaluations:
- From 2007 through 2011, the OFCCP conducted 22,104 compliance reviews of federal contractor establishments. Of those, the OFCCP alleged discrimination against protected veterans and individuals with disabilities in three (less than 1 tenth of a percent) instances.
- Two of the cases alleged discrimination against protected veterans, while one alleged discrimination against disabled veterans.
After considering the number of violations that result from routine compliance evaluations as well as complaint investigations, the CCE estimates that less than one percent of federal contractor establishments are likely to have a finding of discrimination against protected veterans or individuals with disabilities. According to the CCE, while the data in this report do not prove, nor disprove, the existence of discrimination against protected veterans and individuals with disabilities, the above results fail to provide the evidence needed to make an evidence-based policy decision such as those proposed in the regulations.
The CCE emphasized that this report is not a criticism of the agency or the quality of its work. Rather, the organization says it is an attempt to neutrally summarize the findings of the OFCCP’s audit and enforcement efforts.