Defining new OFCCP Barriers Analysis

By Fe Ramos, Sr. Consultant, Biddle Consulting Group

Barriers Analysis

Is it possible that the OFCCP has started to conduct a “barriers analysis?” They can under the law. 41 CFR Part 60-1 ‘Obligation to Solicit Race and Gender Data for Agency Enforcement Purposes; Final Rule,’ released on October 7, 2005 (Use of Labor Force Statistics and Census Data) states: “OFCCP intends to use such data during compliance reviews to determine whether basic qualifications have an adverse impact on the basis of race, ethnicity, or gender. OFCCP does not agree that it should rely exclusively on availability data compiled by contractors…” [emphasis added].

During a recent OFCCP audit, we carefully reviewed the data and the reports contained in the client’s AAP before submittal to the OFCCP (as this has always been a part of Biddle Consulting Group protocol.) Adverse impact analyses of the transaction data was also conducted prior to submittal and the results also did not reveal any potential problem areas. In short, the AAP was considered compliant and without problems so it was expected to pass the compliance evaluation without issue. Needless to say, it came as a surprise when the OFCCP Compliance Officer requested the availability percentages by ethnicity/race for two (2) particular job groups. In light of this additional request, a further review of the data was again conducted and still, no apparent problem with the data was found.

A “barriers analysis,” as the term implies, is a test to determine if the comparison pool (e.g., applicant pool) is composed of what is “reasonably expected.” It determines if there is a “barrier” that prevents reasonably expected females and minorities from applying in an organization. The OFCCP can conduct this type analysis if it has reason to believe that the applicant pool might not be representative of the availability. Statistically significant disparities (i.e., adverse impact) in the hiring rates of females vs. males and/or minorities vs. non-minorities (when hires are compared to applicants) do not have to be present for the OFCCP to conduct a barriers analysis. A suspicion that the applicant pool could be “tainted” is enough.

How to conduct the analysis: The applicant data is compared to availability percentages (e.g., Census data from the organization’s local recruitment areas). If statistically significant disparities are found, it could be argued that the applicant data is “suspect” and therefore, is not an appropriate benchmark to which hires should be compared. This said, the hires data could then be compared to the availability data. If statistically significant disparities are found, adverse impact can be inferred.