Recently, 57 women and 15 African Americans were paid nearly $235,000 as compensation for suffering employment discrimination at the hands of their employer, Savannah River Nuclear Solutions (SRNS).
These payments were not the result of a federal lawsuit, nor an EEOC complaint, but rather as a result of one of more than 4,000 discrimination audits that will be conducted this year by the 700 employees of a federal agency with unique powers, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), which celebrated its 50th anniversary on Sept. 24.
OFCCP exercises its authority based on Executive Orders rather than laws. Executive Orders, which are designed to help manage the operations of the Executive Branch and carry the full force of law, allow the institution of requirements that might not receive the blessing of Congress if the President proposed them as legislation.
The most recent example is the amendment to Executive Order 11246, which now prohibits federal contractors from retaliating against workers and job applicants who choose to share information about their pay and compensation. The order goes beyond anything required by federal law.
To enforce these orders, OFCCP requires federal contractors to be subject to both desk audits and on-site reviews. Companies must comply, which includes providing all documentation including employee records and affirmative action plans. Companies must also maintain information on hiring data, job postings, and job applicants to prove they are not discriminating.
In the case of SRNS, OFCCP began its desk audit without needing to receive a complaint (as is required for most EEOC investigations) or needing to identify actual a victim of discrimination.
Instead, the agency analyzed the data supplied by the company using a statistical model and found a “statistically significant difference in pay” with 57 female employees making less than their male counterparts, and 15 African American employees being paid less than their white counterparts.
The agency was not required to produce actual evidence of discriminatory behavior nor require that employees come forward to testify. The statistical test was sufficient proof of the company’s guilt. The standard of a federal civil court, preponderance of evidence, does not apply to OFCCP judgments.
Having been found guilty, the company agreed to the payments and to “evaluate whether promotion decisions, performance evaluation ratings, procedures for assigning work, training opportunities, leave policies, assigning applicants to jobs, and limiting job transfers have a negative effect on compensation of women and African Americans.”
Although SRNS could have appealed the decision, the company chose instead to sign a conciliation agreement while denying liability. If the company had appealed and lost, it could have been debarred from federal contracts, which in this case is 100 percent of the SRNS’s business. Debarment would mean bankruptcy and loss of employment for it 6,000 workers.
This is a severe punishment that can be imposed by an agency operating under only administrative procedures.
In recognition of President Lyndon Johnson’s Executive Order of Sept. 24, 1965, creating OFCCP, Labor Secretary Thomas Perez wrote: “Our work is far from done on this front, but as Dr. Martin Luther King Jr. famously said, ‘The arc of the moral universe is long, but it bends towards justice.’ I would simply add that the arc doesn’t bend by itself. Bending it requires bold and courageous leadership, like that of LBJ and the tireless men and women at OFCCP fighting for workers every day. We have bent it far over the last 50 years; we will bend it even further in the next 50.”
