OFCCP's proposed rule makes it easier to pursue discrimination claims against contractors

The Office of Federal Contract Compliance Programs (OFCCP) recently published a notice of proposed rulemaking (NPRM) in the Federal Register titled "Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination." The proposed rule defines the criteria and procedures the OFCCP will follow during audits to resolve potential employment discrimination and other material violations of the laws it enforces.

Under the NPRM, once the OFCCP has made a preliminary finding of discrimination during a review, it will consider (1) whether the unexplained disparity is both practically and statistically significant and (2) if relevant, whether nonstatistical evidence demonstrates an intent to discriminate. Following that review, if the OFCCP finds statistical evidence of discrimination that's more than two and less than three standard deviations as well as corroborating nonstatistical evidence (e.g., anecdotal evidence), the agency will issue a predetermination notice (PDN).

However, the NPRM states that if the OFCCP discovers evidence of a disparity higher than three standard deviations, it can issue a PDN even in the absence of any nonstatistical or anecdotal evidence showing an intent to discriminate. Once a PDN is issued, the contractor will have 15 days to respond and rebut the agency's finding. If a contractor doesn't respond or doesn't provide a sufficient response to a PDN within the allotted time, the OFCCP will issue a notice of violation based on its determination.