Regulatory agenda & corresponding webchat provide indications of OFCCP's enforcement focus

OFCCP Director Patrica Shiu's December 8, 2009 webchat on the agency's Fall 2009 regulatory agenda provided some indications on how the Obama Administration plans to enforce the EEO and affirmative action obligations of government contractors. In her webchat, Shiu said that the OFCCP "will vigorously enforce" the three laws under its jurisdiction - Executive Order 11246, Section 503 of the Rehabiltation Act and VEVRAA - "and will do so through both systemic and individual cases." She stated that the OFCCP "will not be exclusively focusing on systemic discrimination as we have in the past few years."

Update to construction contractor requirements. In its regulatory agenda, the OFCCP stated that it plans to issue a Notice of Proposed Rulemaking (NPRM) in January 2011 to revise the regulations in 41 CFR Part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. In her webchat, Shui noted that the OFCCP's affirmative action regulations and goals applicable to construction contractors "were last updated about thirty years ago." "We know much has changed in the construction industry and workforce since that time," she continued. "As part of the rulemaking process, OFCCP will be reviewing barriers to equal opportunity in the construction industry including employment opportunities for women and minorities. OFCCP will also be considering how construction contractors may best ensure equal opportunities for all job applicants and employees."

VERAA and Section 503 requirements. According to the regulatory agenda, the OFCCP will publish an Advance Notice of Proposed Rulemaking (ANPRM) in December 2010 to revise the regulations in 41 CFR Parts 60-741 that implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973, as amended. In particular, the ANPRM would strengthen affirmative action requirements by requiring federal contractors and subcontractors to conduct more substantive analyses and fully monitor their recruitment and placement efforts on behalf of individuals with disabilities. In December 2010, the OFCCP plans to issue an NPRM that would revise the regulations in 41 CFR Parts 60-250 and 60-300, implementing the nondiscrimination and affirmative action provisions of VEVRAA. The NPRM would amend the regulations to strengthen the affirmative action requirements by requiring that federal contractors and subcontractors to conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts.

Regarding the forthcoming proposals to amend the Section 503 and VEVRAA regulations, Shiu commented that the "OFCCP will seek input from stakeholders on the type of statistical or other analyses that might be used by contractors to better monitor their employment practices with respect to applicants and employees with disabilities and protected veterans." The OFCCP will also "be researching existing data on the availability of qualified individuals with disabilities and protected veterans."

The regulatory agenda and corresponding webchat show that the OFCCP will continue with, and build upon, the increased focus on EEO and affirmative action requirements in regard to individuals with disabilities and veterans that started during the Bush Administration. Moreover, the long-neglected construction contractor regulations will be getting some much needed updating. Considering the significant regulatory changes being considered by the OFCCP, stakeholders should not miss their chance to comment on these proposals once they are published. Indeed, during her webchat, Director Shiu explicity encouraged comments on the upcoming proposals. Stakeholders will have an opportunity to hear further discussions regarding these upcoming proposals during three webinars (one for each new proposal) to be hosted by the OFCCP in January 2010. In addition, OFCCP officials will be hosting town hall meetings across the country in February and March. The specific dates and times for these events will be posted on the OFCCP website.