4A Introduction

The purpose of a CMCE, as described at 41 CFR 60-2.30(a), is to determine whether individuals are encountering artificial barriers to advancement into middle and senior-level corporate management. During CMCEs, COs pay special attention to components of a contractor’s employment process that affect advancement or promotion into middle and senior-level positions.

As in other compliance evaluations, the CMCE focuses on a contractor’s efforts to ensure a discrimination-free workplace. To ensure a thorough analysis of EEO compliance, CMCEs focus not only on personnel activity data at the corporate headquarters, but also on affirmative action policies and procedures that ensure EEO leading to advancement throughout the organization.

Therefore, during a CMCE COs begin their analysis of middle and senior-level management positions by focusing on two areas:

• Potential discrimination; and
• Affirmative action.

a. Potential Discrimination. When focusing on the potential for discrimination, COs are typically seeking answers to two questions:

• Does unlawful discrimination exist in the selection processes and practices for middle and senior-level management positions?
• Does unlawful discrimination exist in employee performance review procedures or in employee developmental assignments?

In addition to these questions, COs are also seeking to determine whether individuals currently in these positions are treated in a nondiscriminatory manner in all aspects of their employment, including assignments, total compensation, development opportunities, reasonable accommodation and any other benefits or privileges associated with their positions.

b. Affirmative Action. The obligation to ensure EEO extends to all levels of a contractor’s activities, including the recruitment, development and selection processes for middle and senior-level management positions. The contractor’s efforts are particularly important when evaluating higher-level positions. This is so because the selection criteria for these positions often become more subjective. Moreover, the selection criteria at these levels are closely related to corporate culture and values. COs, therefore, must evaluate whether and to what extent the contractor:

• Examines its development and selection criteria and practices for middle and senior-level management positions;
• Identifies EEO problems or potential barriers to equal opportunity; and
• Devises and implements effective strategies to address identified problems within the context of its own particular corporate environment.

A CMCE is always a full review. COs use the SCER, with the addition of the CMCE-specific Part D which addresses those elements unique to a CMCE.264 The evaluation of a corporate headquarters includes a review of the written AAPs to ensure that they include all jobs for which the headquarters has decision-making authority, regardless of where those jobs are physically located. For example, jobs for which the corporate headquarters retains decision making or approval and disapproval authority usually include senior managers of the various corporation establishments. Such jobs are often important contributors to feeder pools for middle and senior-level corporate management positions.

Corporate wide policies will also be examined as part of the CMCE, including those pertaining to protected veterans with disabilities, individuals with disabilities, and the sharing of compensation information. A CMCE can be expanded beyond the corporate headquarters if, during the course of the CMCE, the CO becomes aware that problems exist at establishments outside the corporate headquarters.265 In this instance, the CO should discuss with his or her supervisor266 whether it would be appropriate to expand the compliance evaluation beyond the headquarters. If they decide to expand the evaluation, the CO should contact the contractor, explain the reasons for and scope of the expansion, and request appropriate records and other evidence regarding the additional issues(s) to be investigated.

For example, the CMCE may need to include an analysis of feeder pools at subordinate establishments. In determining whether to include such an analysis, the CO should consider the degree to which the contractor has historically and recently filled corporate headquarters management positions from elsewhere in the corporation, and the degree to which corporate headquarters tracks and monitors the progress of key personnel in subordinate establishments. COs should refer to FCCM 4H04, Cross-Establishment Movement, for additional information on feeder pools and related issues.

Likewise, the highest-level management positions held by members of nonfavored groups may be outside the corporate headquarters. Therefore, when doing a CMCE, the CO must request data from the contractor related to other establishments, when necessary, to determine the existence and extent of a “glass ceiling” within the corporation.

Some of the data examined during a CMCE, such as human resource development plans and total compensation packages for higher management levels, may be considered particularly sensitive by the contractor. COs must consult with the appropriate OFCCP managing officials to ensure that the appropriate steps are taken to ensure confidentiality of these data. In many cases, this will include consultation with the District Director.

If the contractor’s representatives express concerns about confidentiality, the CO must advise the representative that OFCCP is required to “treat information obtained in the compliance evaluation as confidential to the maximum extent the information is exempt from public disclosure under the FOIA, 5 U.S.C. 552.”267 Exemption 4 of the FOIA at 5 U.S.C. 552 (b)(4) protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” DOL’s FOIA regulations require OFCCP to notify the contractor of a FOIA request for confidential business information to give the contractor an opportunity to object to the disclosure under exemption 4.268 When submitting data and records to OFCCP, contractors should clearly identify all trade secrets and commercial or financial information it believes are exempt from disclosure. Moreover, the CO may advise the contractor that, under the Trade Secrets Act, 18 U.S.C. 1905, it is a criminal offense for a government employee to release trade secrets and other forms of confidential commercial and financial information to another business or to the public unless the law authorizes such disclosure.

Other information may be exempt from disclosure, e.g., personnel files under Exemption 6 of the FOIA.269 For additional information regarding the agency’s treatment of confidential information, review 41 CFR 60-1.20(f) and 41 CFR 60-1.20(g).