Pending Paycheck Fairness Act would resurrect controversial EO Survey

The Paycheck Fairness Act (H.R. 12, S. 182), currently pending in Congress, would require specific changes to OFCCP and EEOC enforcement activities related to gender discrimination in compensation. One proposed change of particular concern to the federal contractor community is the proposed legislation’s requirement that the OFCCP reinstate the controversial Equal Opportunity (EO) Survey. The Act would require that "not less than half of all nonconstruction contractor establishments" prepare and file the EO Survey each year and require the OFCCP to "review and utilize the responses to the survey to identify contractor establishments for further evaluation." 

The regulatory requirement for federal contractors to file the EO Survey, put into place by the Clinton Administration, was eliminated on September 8, 2006 (71 FR 53032-53042) by the Bush Administration. The decision to eliminate the EO Survey was based in part on two studies commissioned by the OFCCP to access the validity of the EO Survey as a selection tool for compliance reviews. One of the studies failed to find a correlation between the predictive variables generated from the EO Survey and determinations of noncompliance. The second study showed that the EO Survey did not provide sufficiently useful data for enforcement targeting purposes. On October 5, 2006, at the National Employment Law Institute's Twenty-Fourth Annual Affirmative Action Briefing in Chicago, then OFCCP Director Charles E. James, Sr. said the EO Survey "was a noble effort, but with a faulty design."

The EO Survey was not popular among the federal contractor community, who generally found it to be unduly burdensome. The survey required contractors to report information about personnel activities, compensation and tenure data, and certain information about the contractor's affirmative action program. Although the OFCCP's recordkeeping regulations require contractors to maintain information that was necessary to complete the EO Survey, contractors were not required to maintain that information in the format called for by the survey instrument. Critics asserted that the data request in the EO Survey was too generalized to provide useful compliance or enforcement information. Another concern was that the EO Survey required companies to report personnel data by individual business location. Companies that monitored their employment practices on a broader basis (for example, by functions or geographic regions) complained that requiring reports to be prepared by single business location was unduly restrictive. This was particularly problematic for contractors that utilized functional affirmative action programs, rather than the traditional establishment-based affirmative action programs.

Nevertheless, civil rights groups, such as Women Employed, the National Women's Law Center and the National Partnership for Women & Families have maintained that the EO Survey could have been a vital tool to enable the OFCCP to detect discrimination based on race and gender and target investigations or other enforcement action. "They want to eliminate this enforcement tool without ever having used it," said Jocelyn Frye, General Counsel at the National Partnership for Women & Families in a statement issued at the time the OFCCP first proposed elimination of the EO Survey. "OFCCP has not suggested changes to improve it or offered any alternative. Instead, it is discarding an important tool that would have provided hard data on pay and job practices."

The House passed the Paycheck Fairness Act on July 31, 2008, but the bill has not yet come to a vote in the Senate. If the Act does become law with the EO Survey resurrection provision intact, the OFCCP would be faced with the choice of using the previous, much criticized format, or developing a revised, and hopefully more utilitarian, format. Given the agency’s difficulties with its previous attempts in utilizing the EO Survey, this looks to be a monumental task.