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An analysis of data related to the enforcement of Section 503 of the Rehabilitation Act and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) by the Labor Department's Office of Federal Contract Compliance Programs suggests that OFCCP makes infrequent findings of bias against protected veterans and individuals with disabilities, according to a report released Aug. 1 by the Center for Corporate Equality, a national nonprofit research organization.
In a related matter, a study released July 24 by an economic and public policy analysis firm said that OFCCP's proposal to update federal contractors' affirmative action and nondiscrimination obligations for individuals with disabilities may, if finalized, cost covered contractors $5.9 billion in its first year of implementation (See story on page 253).
Analyzing OFCCP enforcement data available on a public database, the CCE report observed that the agency between September 2004 and June 2012 completed approximately 1,124 complaint investigations, of which 871 involved veteran and disability-related complaints.
The report found that OFCCP identified violations in 60, or 5.34 percent, of the total number of investigations, suggesting that “approximately 95 percent of all complaints closed without a finding of discrimination involving protected veterans and/or individuals with disabilities.”
Additionally, the report analyzed approximately 22,104 compliance evaluations conducted by OFCCP between 2007 and 2011, and found that the agency alleged discrimination against veterans or disabled individuals in three instances, which amounts to approximately 0.014 percent of all reviews.
CCE obtained compliance evaluation data from a public database, as well as the organization's own internal database of OFCCP conciliation agreements and consent decrees from 2007 through 2011 (62 BTM 151, 5/10/11).
Presuming a “universe of approximately 285,390 federal contractor establishments,” the report estimated that less than 1 percent of establishments “are likely to have a finding of discrimination for protected veterans or individuals with disabilities in either a routine compliance evaluation or a complaint investigation.”
Prior to the report's public release, David Cohen, senior vice president of CCE and a report co-author, told BNA July 31 that the report does not “say one way or another” whether discrimination against veterans or individuals with disabilities exists among federal contractors. Nor is it a criticism of the agency or its enforcement efforts, he said.
Cohen said the report is a “fact-based analysis of the data, which revealed that, at least in the OFCCP context, findings of bias against those two protected groups are almost “ 'nonexistent'.”
Last year, OFCCP issued separate notices of proposed rulemaking to update federal contractors' affirmative action and nondiscrimination obligations toward certain protected categories of veterans and individuals with disabilities (62 BTM 137, 5/3/11; (62 BTM 393, 12/13/11).
Each of the proposals introduced for the first time a numerical hiring benchmark or utilization goal for veterans and disabled workers, respectively, as well as new data collection, recordkeeping, job listing, and outreach requirements. Both proposed rules raised undue burden concerns among many employers (63 BTM 126, 4/17/12).
Although the NPRMs cited government unemployment statistics for veterans and individuals with disabilities, they did not include enforcement data as evidence in support of the proposed revisions.
CCE's report said its results “suggest that discrimination against protected veterans and individuals with disabilities, especially with regard to hiring, is not a frequent finding by OFCCP and may not support the major shift in policy that the proposed regulations would necessitate.”
Indeed, the Associated General Contractors of America in an Aug. 1 statement maintained that the report reveals “no justification” for the agency's “costly and complex” proposals. AGC helped sponsor CCE's report.
“Federal officials have found an extremely expensive way to solve a problem that barely exists,” AGC spokesman Brian Turmail said.
A DOL spokesman Aug. 1 told BNA that OFCCP is aware of CCE's report, but has not yet reviewed it. He said DOL “cannot discuss proposed rules--or matters closely related to proposed rules--at this stage of the rulemaking process.”
The spokesman noted that since the regulatory comment periods for OFCCP's proposals have expired, CCE's report “cannot be considered by OFCCP as part of the rulemaking process,” as governed by the Administrative Procedure Act.
According to the report, OFCCP initiated 515 veteran-related complaint investigations between September 2004 and June 2012, and 37 (7.18 percent) resulted in violation findings.
Meanwhile, the agency initiated 497 disability-related complaint investigations during the same time period, also resulting in violation findings in 37 investigations (7.44 percent).
Veteran and disability-related complaint investigations that closed with a violation each constituted approximately 3.29 percent of the overall 1,124 complaint investigations conducted by OFCCP in the nearly nine-year period.
The report pointed out the existence of an overlap between 141 of the veteran and disability complaint investigations, resulting in a total of 871 such investigations and violation findings in 60 investigations (6.89 percent). Based on these figures, the report calculated that an average of 6.67 violations occurred per year between September 2004 and June 2012.
It said the “vast majority” of the violations were technical violations of Section 503 or VEVRAA, such as a failure to keep required records, as opposed to violations “indicating systemic discrimination,” such as in hiring. For example, only 10 veteran and disability complaints resulted in hiring violation findings over the course of almost nine years, the report said.
The report added that the 6.89-percent figure drops to 5.34 percent when the 60 investigations with violation findings are compared to the total of 1,124 complaint investigations.
“Thus, approximately 95 percent of all complaints closed without a finding of discrimination involving protected veterans and/or individuals with disabilities,” the report said.
Furthermore, the report said its analysis suggests that less than 0.021 percent of approximately 285,390 federal contractor establishments, or about 1 in every 4,657 establishments, “are likely to have a finding of discrimination with regard to protected veterans or individuals with disabilities.”
Meanwhile, between 2007 and 2011, OFCCP conducted approximately 22,104 compliance evaluations of contractor establishments, and ultimately alleged discrimination against protected veterans in two audits, and bias against disabled veterans in one review, the report said.
The three findings “represent 0.014 [percent] of all compliance evaluations conducted from 2007 through 2011,” the report said.
Since CCE's database lacks settlement information from 2004 to 2006 and 2012, Cohen said the organization in May filed a Freedom of Information Act request with OFCCP to obtain the agency's settlements “from 2004 to the present.” He said CCE may release a follow-up report at a later date.
Text of CCE's report is available at http://op.bna.com/dlrcases.nsf/r?Open=jaca-8wqm94.
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