Fox and Chambers Performed A Mock OFCCP Audit Covering The “Hot” Compliance Issues
Performing a mock on-site audit between OFCCP and “The Good Guys, USA,” John Fox and Candee Chambers illustrated some hot issues on which the agency is currently focused. John portrayed the OFCCP Compliance Officer and Candee played the company representative. The mock audit addressed four issues.
First, the VEVRAA “listing v posting” issue. John accused The Good Guys of not “posting” their jobs. However, Candee pointed out that VEVRAA regulations (41 CFR §60-300.5(a)(2)), rather, require covered contractors to “list” all employment openings — for jobs lasting longer than three days and not involving an executive or senior management position — with “the appropriate” employment service delivery system (ESDS) in the “manner and format” that ESDS “permits or requires.” OFCCP’s regulations never require a contractor to “post” their available jobs, Candee maintained and noted that “posting” is a “nice-to-have” activity to help recruiters find interested jobseekers. It is the ESDS, a/k/a One-Stop/American Job Centers which thereafter “posts” the jobs, not the contractor, unless the contractor undertakes to later also “post” its jobs for its convenience, as DE does for its Member companies in addition to earlier “listing” those same jobs. Accordingly, the applicable regulations require contractors to “list” the jobs, rather than “post” their jobs (two different things). As a result, Candee pushed John into agreeing that he had used the wrong language by accusing The Good Guys of having failed to “post” its available jobs.
Second, John, as the OFCCP stand-in, asserted it had “indicators” that The Good Guys “is and has been for some time unlawfully discriminating in the selection of African-Americans to be production laborers” for a specified job group. This part of the audit covered the various legal requirements for statistical analysis in failure-to-hire cases. Among the specific points made here were that “not best qualified” is “the absolute worst disposition code on the face of the earth,” according to Candee. John momentarily joined Candee going “out of costume” to explain that courts typically do not endorse that particular disposition code because it is not sufficiently detailed to explain the contractor’s “legitimate non-discriminatory reason(s)” for failing to advance the candidate in the contractor’s selection process.
Third, the agency claimed to have “indicators” that women were victims of compensation discrimination in the contractor’s entry-level “Professional Job” classification. Here, the performers illustrated OFCCP’s current push to get contractor’s internal compensation analysis, even those covered by attorney-client privilege. In addition, they covered when cohort, as opposed to systemic, analyses are merited, and what constitutes “similarly-situated” employees.
Finally, John alleged that the contractor had discriminated unlawfully pursuant to Executive Order 11246 against an incumbent transgender employee who was assigned the female gender at birth but was at the time of the make-believe audit transitioning to become a male. Good Guys denied this employee’s use of a male bathroom facilities, even though he was under doctor’s orders to use them. In addition, The Good Guys medical insurance plan denied the employee’s request to cover his upcoming gender affirming surgery.
Candee argued back, though, that under the SCOTUS’ TWA v Hardison case decision, The Good Guys did not have to accommodate its transgender employee because the requested accommodations created an “undue hardship” on male users of the male bathroom. However, John clarified while in costume as OFCCP that the agency was not asserting a right of accommodation under Section 503 of the Rehabilitation Act. Rather, the employee was not asserting a right of disability, but rather, this was “a straight up old-fashioned direct evidence case of unlawful discrimination pursuant to Executive Order 11246” John asserted, performing as an OFCCP Compliance Officer. John then emphasized that the SCOTUS’ 2020 case decision in the Bostock case had found that Title VII’s sex discrimination prohibition had since 1964 prohibited gender identity discrimination since such discrimination was “because of sex.” Next, employers are not permitted to accommodate unlawful discrimination, Fox further explained, stating that “[t]his gentleman is simply asking to not be discriminated against based on his gender,” which is male. This was not a case of accommodation and whether the employee’s request, if honored, would cause an “undue hardship.” Rather, this is a straightforward case of treating employees differently, in this case because of this employee’s gender, John asserted on behalf of OFCCP.
However, Candee had another winning argument up her sleeve: the SCOTUS’ 2020 Bostock case decision, she argued, not only did not address the bathroom issue or the insurance issue, but the court had specifically reserved addressing the bathroom issue at all in its Bostock case decision. So, Candee triumphantly forced John to concede that these issues were open legal issues of first impression and there was no established law (yet) compelling The Good Guys to comply with the transgender employee’s request. John then reported he would recommend both issues for enforcement to the OFCCP Director to determine how to proceed as a matter of policy and the Solicitor to determine how to proceed as a matter of law.
Note: Candee and John put on this skit to illustrate the current uncertain state of the law. DirectEmployers does, however, permit transgender employees to use the bathroom at work with which they identify, despite the uncertainty of the law on the bathroom issue.