Employers facing a determination by the OFCCP (Office of Federal Contract Compliance Programs) that they have violated the anti-discrimination laws applicable to federal contractors often confront a black box when trying to discern the basis for the agency’s claims against them. OFCCP typically refuses to provide the backup statistical analyses and other data supporting its claims, asserting, among other defenses, the “deliberative process privilege” that protects executive officials’ pre-decisional deliberations. In a noteworthy recent decision, the Administrative Law Judge presiding over OFCCP’s current enforcement action against computer tech giant Oracle Corporation ruled that OFCCP must provide Oracle with the facts supporting its claim that the company has engaged in widespread hiring and compensation discrimination against women and minorities—Including the evidentiary bases for its statistical findings.
Although the ruling is not binding in other administrative or judicial forums and may be modified, employers should rely on it to encourage the OFCCP—and also the EEOC, which is similarly protective of its statistical findings in systemic discrimination cases—to be more transparent with companies under investigation. Early sharing of the agency’s findings during the audit or conciliation process, before any enforcement action is brought, would allow employers and their experts to evaluate the agency’s claims and facilitate early resolution of disputes or demonstrate compliance.