The Office of Federal Contract Compliance Programs Announces Final Rule on Procedures for Identifying and Remedying Discrimination in Federal Contracting
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has announced a final rule titled “Pre-enforcement Notice and Conciliation Procedures.”
The final rule modifies the agency’s earlier rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination” which took effect on December 10, 2020.
The 2020 rule imposed inflexible evidentiary requirements early in the agency’s compliance evaluation process and attempted to codify complex definitions for “qualitative” and “quantitative” evidence and other standards. These evidentiary standards and definitions hindered OFCCP’s ability to pursue cases with merit and diverted agency and contractor resources away from addressing discrimination.
The new final rule strengthens OFCCP’s enforcement by rescinding the evidentiary standards and definitions in the 2020 rule. It also gives OFCCP more flexibility in the agency’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement, and promotes greater consistency with Title VII of the Civil Rights Act of 1964.
The final rule retains the two notices codified in the 2020 rule, the Predetermination Notice and the Notice of Violation, and restores the distinct purposes of each. These notices allow the agency to explain its findings related to discrimination at different stages of the evaluation, and each notice gives contractors an opportunity to respond.
To learn more, read Acting Director Michele Hodge's blog about the final rule here. You can also read the Final Rule here.
The final rule will take effect on September 5, 2023.
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