Maintaining its recent focus on compliance issues particular to educational institutions, OFCCP published a technical assistance guide for educational institutions on October 11, 2019. The guide follows a flurry of OFCCP guidance for institutions of higher learning, including an opinion letter regarding the agency’s jurisdiction over such employers, a directive that student employees need not be considered in fulfilling AAP obligations, and an FAQ providing guidance on the definition of AAP “establishments” in campus settings. OFCCP is also holding a town hall on issues particular to academic institutions on October 23, 2019 in Washington, D.C. Contractors can review Polsinelli’s coverage of OFCCP’s prior guidance by following the links in the previous sentence.
The guide recognizes that educational institutions present “unique challenges” for OFCCP compliance and enforcement purposes because they have “numerous methods of governance, various organizational structures, and multiple workforces,” as well as “elements that can be difficult to quantify” in their hiring, promotion, and compensation structures. These subjective criteria can include “the prestige of publications, research, discipline, and contributions to the institution.” OFCCP also recognizes in the guide that it must apply different analyses to three major areas of an educational institution’s workforce: tenured instructional staff, non-tenured instructional staff, and non-instructional staff.
Although it is a good omen for educational institution contractors that OFCCP recognizes that their employment decisions involve idiosyncratic factors and differ from those of a commercial employer, that does not mean OFCCP is abdicating its oversight over educational institutions. The guide clearly telegraphs OFCCP’s intention to scrutinize the tenure selection process due to the historical and continuing disparities in tenure selection rates for female and minority instructors. Though OFCCP recognizes that many of the factors going into the tenure analysis are subjective and difficult to quantify, the guide states OFCCP’s intention to evaluate whether a contractor applies these factors consistently and in a neutral, non-discriminatory manner. It is therefore essential for educational institutions to clearly outline the factors relevant to tenure selection and document how those factors are applied in each selection or non-selection decision. OFCCP will also look at structural issues in the tenure selection process such as “the process by which the contractor composes the departmental committees responsible for granting tenure” as well as historical tenure data.
A second issue of interest to educational institution contractors is the guide’s discussion of disparities in compensation by academic discipline. OFCCP will only control for differences in discipline areas that have a “substantial impact on determining instructional staff salaries.” Much like a private sector contractor’s use of “market rate” data in setting compensation, it is essential for educational institutions to be able to explain how differences in compensation by discipline factor into compensation and to have defensible data supporting discipline-based compensation disparities. The need for careful analysis is heightened because discipline-based disparities can potentially correlate to gender or race based disparities to the extent that members of different genders or races are disproportionately represented in disciplines that command different levels of compensation.
Educational institutions should review the new technical assistance guide as it provides useful guidance and a window into OFCCP’s priorities in this field. Polsinelli will continue to monitor developments in OFCCP’s approach towards educational institutions and other types of contractors and provide updates on new developments.