US Department of Labor announces final rule on procedures for identifying, remedying discrimination in federal contracting

WASHINGTON – The U.S. Department of Labor today announced a final rule, “Pre-enforcement Notice and Conciliation Procedures,” to create a streamlined, efficient, and flexible process that will enable the Office of Federal Contract Compliance to employ its resources strategically to remove barriers to equal employment opportunity.

The final rule strengthens OFCCP’s enforcement by rescinding the evidentiary standards and definitions in an earlier rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which took effect in December 2020.

The new final rule also gives the agency more flexibility in its pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, and promotes greater consistency with Title VII of the Civil Rights Act of 1964.

“Today’s final rule better aligns our procedures to allow us to use our resources more strategically to remove barriers to equal employment opportunity,” said Acting Director of Office of Federal Contract Compliance Programs Michele Hodge. “The rule also enables us to identify and remedy unlawful discrimination more effectively and gives federal contractors early notice of our concerns and an opportunity to respond.”

The 2020 rule imposed inflexible evidentiary requirements early in OFCCP’s compliance evaluation process and attempted to codify complex definitions for “qualitative” and “quantitative” evidence and other standards. These definitions and standards hindered the agency’s ability to pursue cases with merit and diverted agency and contractor resources away from addressing discrimination.

The final rule retains the Predetermination Notice and the Notice of Violation codified in the 2020 rule and restores the distinct purpose of each notice. These notices allow OFCCP to provide findings related to discrimination during the evaluation’s different stages and provides federal contractors with an opportunity to respond.

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 authorities, 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 authorities also require that federal contractors ensure equal employment opportunity for employees and applicants for employment. Learn more about OFCCP. Call 800-397-6251 for more information.