President Donald Trump’s budget proposal projects that both the EEOC and OFCCP will be “doing more with less.” Consequently, the agencies plan to focus resources.
As set forth in the Budget Justification for OFCCP:
OFCCP’s FY 2019 priorities support the agency’s efforts to enforce the law by emphasizing high-impact systemic cases and expand contractor compliance assistance, thereby reducing the cost of compliance that covered contractors incur while simultaneously protecting a greater number of workers and jobseekers from employment discrimination.
According to the EEOC Acting Chair, “Our Strategic Plan for 2018-2022 focuses on making maximum use of our limited resources to achieve the greatest return on the investment of taxpayer dollars.” This effort includes a focus on systemic discrimination cases, including pay cases.
As underscored in the report, Advancing Opportunity – A Review of the Systemic Program of the U.S. Equal Employment Opportunity Commission, systemic investigations and lawsuits typically have strategic impact because they address significant legal issues or policies, or have a wide influence on an industry, occupation, or geographic area…. [S]ystemic enforcement is a greater driver of employer compliance than individual investigations or cases.
This should have employers and federal contractors taking steps to avoid coming under OFCCP/EEOC attention.
In fiscal year (FY) 2017, OFCCP recovered nearly $24 million in monetary relief, 40 percent of which were from pay discrimination cases. From pay discrimination audits, the agency recovered a record-setting $14 million.
Even with a more contractor-friendly OFCCP, audits will follow the money, or at least attempt to identify those audits where the money is most likely to be found. To that end, OFCCP continues to hone its pay audit skills and resources.
The bottom line is:
OFCCP anticipates about 35 percent of its discrimination conciliation agreements to address systemic pay discrimination by prioritizing review of pay related employment practices.
Moreover, OFCCP may conduct many more “streamlined” audits in FY 2018 and FY 2019 in order to identify those with high-impact potential.
In its Budget Justification, the EEOC also touts its successes in systemic cases:
Notably, the EEOC tripled the success rate for conciliation of systemic matters from 21 percent to between 45 – 64 percent over the past decade and the EEOC’s litigation program has achieved a remarkable 92 percent success rate in its systemic cases over the past 10 years (through FY 2017).
How does OFCCP determine if an audit is likely to be a high-impact pay case? OFCCP won’t have W-2 pay data in EEO-1 reports, but, at the outset of an audit, OFCCP has even better data: Item 19 base pay and pay component data. With the EEOC, an individual pay discrimination charge may lead to systemic investigations and class actions.
With improved tools and training, and more audit opportunities, OFCCP may be even better equipped to identify systemic pay issues. The EEOC, with a much larger budget, also has ample opportunities to ferret out “strategic impact” pay cases.
Of course, the remedy is to stay a step ahead of OFCCP audits and EEOC pay charges by reviewing and improving pay practices, and proactively analyzing pay data.