US Department of Labor announces proposed rule for modifying procedures to identify, remedy discrimination in federal contracting

WASHINGTON – The U.S. Department of Labor today announced a proposed modification to a final rule that aims to create a streamlined, efficient and flexible process allowing the department to use its resources strategically to remove barriers to equal employment opportunity.

The proposed rulemaking by the department’s Office of Federal Contract Compliance Programs seeks to revise the final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” in effect since Dec. 10, 2020.

The 2020 rule codified two formal notices, the Predetermination Notice and the Notice of Violation, that the agency provides to federal contractors when it finds potential violations. These notices explain the concerns the agency has identified regarding noncompliance to federal contractors and give the contractor an opportunity to respond.

The rule also imposed inflexible evidentiary requirements early in the compliance evaluation process and attempted to codify complex evidentiary definitions for “qualitative” and “quantitative” evidence and other standards. The 2020 rule imposed rigid evidentiary standards and definitions that impede OFCCP’s ability to provide contractors with early notification of indicators of discrimination. These standards and definitions also divert agency and contractor resources away from addressing discrimination unnecessarily.

The 2020 rule’s standards did not assist workers and delayed the resolution of discrimination findings. Its standards also create differences between the evidentiary requirements governing OFCCP’s procedures and Title VII, and limit the agency’s ability to bring the full scope of cases under its authorities.

“Our proposal would enable Office of Federal Contract Compliance Programs to remedy unlawful discrimination more effectively while providing federal contractors early notice about concerns we have identified,” said Office of Federal Contract Compliance Programs Director Jenny R. Yang. “Under the proposal, OFCCP would rescind the rigid evidentiary standards for providing employers with notice of discrimination concerns. It would also retain the required use of the Predetermination Notice and the Notice of Violation, with modified procedures that allow the agency to consider the facts and circumstances of each case.” 

“These proposed modifications would restore flexibility to OFCCP’s procedures, promote efficiency in resolving cases, strengthen enforcement and promote alignment of the standards governing our procedures with Title VII,” Yang added.

Learn more about OFCCP, or call its toll-free helpline at 800-397-6251.