Q&A: OFCCP Former Pay Equity Expert Stays Focused for Trump Era

Pay Equal

A big law attorney out of Chicago once called Pamela Coukos “the czarina of compensation” policy at the Labor Department’s Office of Federal Contract Compliance Programs.

From February 2011 to March 2016, she served as a senior program advisor and expert on compensation issues at the OFCCP under former director Patricia A. Shiu. 

Now Coukos is out on her own as a principal at Working IDEAL, a Washington, D.C.-based consulting firm, which she co-founded with civil rights attorney Cyrus Mehri. The firm advises employers on pay equity, diversity and inclusion, as well as affirmative action issues.

"Under the Obama administration, pay equality was a visible priority,” Coukos, a former plaintiffs’ attorney, told Bloomberg BNA in a Feb. 10 telephone interview.

During her tenure, Coukos may be best known for her role in rebooting compensation audits conducted during compliance evaluations. Through an agency directive, the OFCCP instituted new standards and procedures on assessing federal contractors' compensation practices to ensure they aren’t discriminating against women or racial minorities in violation of Executive Order 11,246.

Under the directive, compliance officers have a broader and more flexible approach toward investigating and evaluating contractors' pay practices. According to the OFCCP, the directive relies on principles developed under Title VII of the 1964 Civil Rights Act. However, some legal observers have asserted that the measure, in some respects, seems at odds with Title VII case law on compensation.

Below is an edited and condensed version of our telephone interview. 

Bloomberg BNA: What will you keep an eye on when it comes to the OFCCP under a Trump administration?

Coukos: I am not going to say I am in the business of predicting, but these are some things to watch for. At the top and the most visible is the messaging level.

For example, by the end of the Obama presidency, about one hundred companies had signed the White House’s equal pay pledge. That has an impact. Making pay equality a priority means resources. In a Labor Department under a Trump presidency, pay equality is one place you could see a different message about what kind of priority it is and how the problem is understood and described.

There is also the core policy piece in terms of what is going to happen with the regulations, directives and all of those written elements that are important for the smooth operation of the government. People need to know what the rules are and understand what the expectations are from both sides. This means the people who are doing the enforcement and the workers who are the beneficiaries of the enforcement.

That’s one area where you will see changes. Still, anything that’s done as a regulation needs to go through a notice-and-comment period, which is a long process in which people try to be thoughtful in submitting comments.

Then there is the realm of agency’s guidance, which is flexible and easier to change. Anything can be wiped off. But I don’t think anyone wants there to be no statement on how the OFCCP is going to approach pay discrimination.

If you want to get rid of something, then you have to come up with what are you going to replace it with, which is the dynamic we are seeing right now with health care. It’s easier to remove something, than to try to be constructive about replacing it with something that works. I am expecting there will be some interest in changing the process. Still, I don’t think it’s as easy as it sounds.

I am not expecting radical, immediate or overnight shifts, except possibly on the messaging level around pay equality. On the other hand, there were some statements made during Trump’s campaign trail that suggest pay equality for women is recognized as something that matters. We will see how that plays out.

Bloomberg BNA: The OFCCP’s enforcement statistics seem to suggest that the agency isn’t finding much pay discrimination during audits. If the Trump Administration doesn’t rescind the revised EEO-1 form requiring pay data by sex, race and ethnicity, do you think more employers will start to conduct proactive pay analyses? 

Coukos: Most compliance evaluations closed without any adverse findings. But what is interesting is that subset where there are findings of alleged pay discrimination. Over the eight-year period of the last administration, we saw the mix of issues changed substantially. Dollar amounts are going to go up and down depending on the size of the contractor. You really saw this dramatic shift in the portion of the cases with findings that were assessing pay issues, including systemic pay discrimination. That went from 4 percent of audits evaluating alleged systemic pay issues to 71 percent looking at systemic pay issues after the OFCCP put new guidance and procedures in place.

I don’t think anyone is saying or would say in examining the pay data that it shows that there’s a massive and widespread problem with systemic pay discrimination among all federal contractors reviewed, but you did see the agency more engaged and I think more effective in addressing the problems that do exist.

That’s different I think than asking whether we solved the pay equity problem, which has been well-documented. It isn’t all about violating anti-discrimination regulations that apply to contractors. Enforcement is an important tool, but isn’t the whole tool kit. There’s a lot of great work that I think can be done by employers that are taking this problem seriously and looking at their compensation systems and being open to thinking about them differently.

Bloomberg BNA: Any final thoughts?

Coukos: We are in a very different place in terms of the social value of pay equality and the people who are paying attention to the issue. This includes investors, consumers and elected officials.  Don’t forget it’s not only Congress, but also state legislatures that have been engaged in pay equality issues. You just can’t unwind all of the thinking that has gone on for some time about how pay equality is a problem that we should care about and do something about. Commitments and good-faith efforts have been made by many employers. So even if the agency makes changes to its outlook on pay equality, then the question is: How much will that change affect what major employers, many of whom are federal contractors, are already doing?

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like The Fair Labor Standards Act and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.