CORRECTED: U.S. Department of Labor Releases Final Rule Codifying Procedures to Resolve Potential Employment Discrimination

WASHINGTON, DC – The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) today published a Final Rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.”

The rule codifies two formal notices that OFCCP uses when it finds potential violations of Executive Order 11246 or the OFCCP regulations implementing the Executive Order: the Predetermination Notice and the Notice of Violation. These pre-enforcement notices provide federal contractors with an explanation of the agency’s preliminary findings of discrimination, and give contractors an opportunity to respond, allowing for a greater shared understanding of the case and providing opportunities to conciliate. The rule also recognizes the availability of voluntary conciliation agreements early in the resolution process.

“The Office of Federal Contract Compliance Programs has applied the principles now encoded in this rule since 2017,” said Office of Federal Contract Compliance Programs Director Craig Leen. “This had been the most productive period in OFCCP’s history, and fiscal years 2019 and 2020 have been the agency’s two top years for recoveries by far. This rule will help OFCCP continue to succeed in achieving its critical mission for years to come.”

The final rule will help OFCCP continue increasing the number of contractors that the agency evaluates and focus on resolving stronger cases of potential discrimination through the strategic allocation of limited agency resources. The procedures codified in the final rule aim to achieve that end by increasing the transparency of OFCCP’s procedures and evidentiary standards so that contractors and OFCCP can resolve potential violations through a clear, mutual understanding of the issues.  

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These laws, as amended, make it illegal for contractors and subcontractors doing business with the federal government to discriminate in employment because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. In addition, contractors and subcontractors are prohibited from discriminating against applicants or employees because they have inquired about, discussed, or disclosed their compensation or the compensation of others subject to certain limitations, and may not retaliate against applicants or employees for engaging in protected activities. These laws also require that federal contractors provide equal employment opportunity through affirmative action. For more information, please call OFCCP’s toll-free helpline at 800-397-6251 or visit https://www.dol.gov/ofccp/.

The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.

Editor’s note: this version corrects an error regarding publication in the Federal Register. The final rule was sent to the Federal Register and will be published in an upcoming edition.