Is the EEOC Headed for Rough Terrain?
On July 2, 1964, President Lyndon Johnson signed into law the Civil Rights Act of 1964, which, among many other things, created the Equal Employment Opportunity Commission. Subsequently, other employment anti-discrimination laws were added to the Commission’s enforcement mandate: principally, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act (Title I), and the Genetic Information Nondiscrimination Act. In 2013, individuals filed nearly 94,000 charges of employment discrimination with the EEOC. Charges of retaliation under the various statutes topped the list, followed by allegations of racial bias. In terms of monetary recovery for charging parties, the EEOC hit the highest mark in its history, at $372.1 million. The EEOC commenced 131 merit lawsuits in 2013, resolved 209, and collected nearly $39 million in benefits, as well as obtaining injunctive relief. By comparison to data from the most recent 10-year period, 2013 was a light year in terms of lawsuits filed and resolved, and about average for the number of charge filings. See EEOC Reports Record Recovery in FY2013. Behind the charge and enforcement statistics is the EEOC’s Strategic Enforcement Plan FY 2013-16 (“SEP”). The SEP states the Commission’s number one enforcement priority is targeting class-based recruitment and hiring discrimination against racial, ethnic and religious groups, older workers, women, and people with disabilities. Other stated goals include: 1) protecting immigrant, migrant and other vulnerable workers; 2) addressing emerging and developing issues, such as those under the Americans with Disabilities Act, pregnancy-related accommodations, and protections for lesbian, gay, bisexual and transgender individuals; 2 EDITORIAL BOARD Roger S. Kaplan Mei Fung So Margaret R. Bryant This bulletin is published for clients of the firm to inform them of labor and employment developments. Space limitations prevent exhaustive treatment of matters highlighted. We will be pleased to provide additional details upon request and discuss with clients the effect of these matters on their specific situations. | Copyright: © 2014 Jackson Lewis P.C. Reproduction in whole or in part by any means whatsoever is strictly prohibited without the advance written permission of Jackson Lewis. | This Bulletin may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome. PREVENTIVE STRATEGIES | Second Quarter 2014 Jackson Lewis P.c. SIGN UP for Jackson Lewis E-Alerts Register online at www.jacksonlewis.com, click on the Sign-Up link at the top of the page. Federal courts have called into question EEOC methodologies in pattern and practice discrimination cases. 3) enforcing equal pay laws against compensation systems and practices that discriminate based on gender; 4) targeting policies and practices that discourage individuals from exercising their rights under anti-discrimination statutes or that impede investigative or enforcement efforts; and 5) preventing harassment through systemic investigations, litigation and outreach. See Targeting Class-Based Discrimination Tops EEOC’s Ambitious 2013-2016 Strategic Enforcement Plan. AT THE HALF-CENTURY MARK for Title VII and the EEOC, and two years into its Strategic Enforcement Plan, the Commission has pursued class-based, systemic discrimination cases with mixed results. In the SEP, the EEOC stated its intention to pursue nationwide investigations and lawsuits against employers using screening tools that may result in adverse impact, such as background checks, and pay and compensation practices that perpetrate gender discrimination. On its website, the EEOC is actively “looking for people who may have been affected by the unlawful discrimination alleged” in a number of class-wide cases both settled and still in litigation. Among its recent successes is the settlement of an Equal Pay Act and Title VII lawsuit with $100,000 in monetary relief to aggrieved current and former female employees. The settlement also prohibits future discrimination on the basis of sex with respect to wages. It increases the hourly wages of female cashiers / sandwich makers to match the wage rate the employer pays to males performing equal work, and it requires training on Title VII and EPA compliance and reporting to the EEOC on all wage complaints, among other remedial actions. Another recent settlement netted nearly $355,000 in a lawsuit charging a beauty supplies and jewelry wholesaler with a pattern and practice of refusing to hire men in management positions and retaliation against a male employee who complained about discriminatory practices. Additionally, the settlement decree required implementation of a detailed applicant-tracking system and supervisory accountability for discrimination prevention, among other remedial measures. HigH Priority Cases Hit JudiCial snags A number of setbacks in various federal district and appellate courts have called into question the EEOC’s methodologies in investigations and evidence-gathering to support pattern and practice discrimination charges in large-scale cases. In one recent case, the U.S. Court of Appeals for the Sixth Circuit affirmed the lower court’s grant of summary judgment to an employer that the EEOC had charged with widespread race bias for using credit checks as part of its hiring practices. The court opened its tersely-worded opinion by pointing out that, in this case, “the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” Affirming that an Ohio federal court had correctly excluded the Commission’s expert testimony, which the court determined had failed to meet established standards for demonstrating disparate impact, the decision is seen as a setback to the agency’s enforcement initiative concerning employer background check policies and SEP priorities. For more information on the EEOC’s approach to background checks, see Background Checks: What Employers Need to Know and EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria. IN ANOTHER RECENT CASE alleging pattern and practice discrimination, a federal district court in New York dismissed the EEOC’s lawsuit against a nationwide chain of jewelry stores charged with gender discrimination in compensation and promotion of women. The court found the Commission had not satisfied the requirement of conducting a nationwide investigation before filing the Jackson Lewis P.c. PREVENTIVE STRATEGIES | Second Quarter 2014 Conciliation Efforts Questioned 3 As discussed in the 1 st Quarter 2014 Preventive Strategies, the EEOC has prevailed in at least one case where a federal appeals court rejected the employer’s affirmative defense that the Commission’s attempt to conciliate prior to filing suit was inadequate. Although not a pattern and practice of discrimination case, EEOC v. Mach Mining, LLC, involved allegations of gender discrimination, and the U.S. Court of Appeals for the Seventh Circuit (Chicago) rejected the employer’s defense that the agency’s conciliation efforts were subject to judicial review and inadequate. This ruling has set up a split of opinion among the federal appeals courts. Six other appeals courts have allowed some type of employer defense to EEOC charges of discrimination based on failed conciliation. The employer in the Mach Mining case has asked the U.S. Supreme Court to review the appeals court ruling. While we wait to see if the high court will hear the case, employers facing EEOC charges should pay particular attention to pre-lawsuit conciliation actions for the possibility of an affirmative defense in any subsequent litigation. The EEOC’s longstanding scrutiny of employment practices using arrest and conviction records is drawing fire from the State of Texas. lawsuit. Although the EEOC argued the court had no grounds to review the adequacy of the investigation, the court rejected that argument and concluded there had been no actual investigation. [EEOC v. Sterling Jewelers, Inc.] The court relied, in part, on the fact that the EEOC had claimed as privileged an expert’s analysis of the employer’s pay and promotion data, refusing to provide the report or related testimony to the employer during the discovery phase of the litigation. Subsequently, the EEOC admitted there was very little investigative material beyond the expert’s analysis to support its contention that it had conducted a nationwide investigation, an omission fatal to its case. DEFEATS IN OTHER RECENT PATTERN AND PRACTICE CASES have turned on the EEOC’s failed conciliation efforts, resulting in the dismissal of class claims of gender and pregnancy discrimination and hostile work environment. Title VII requires the EEOC to attempt conciliation prior to filing suit. In two cases, the courts – a New York federal district court and a federal appeals court in St. Louis – concluded that the Commission’s actions had “foreclosed any possibility that the parties might settle” without the expense of a lawsuit. [EEOC v. Bloomberg LP, U.S. District Court, Southern District of New York, No. 07-08383, and EEOC v. CRST Van Expedited, Inc., U.S. Court of Appeals for the Eighth Circuit, No. 09-3764.] How otHer eeoC Priorities are Faring Long a focus of EEOC scrutiny is employers’ use of arrest and conviction records in hiring and retention decisions. Consistent with the priorities of its Strategic Enforcement Plan, the 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII states it is “part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.” The Enforcement Guidance does not have the force and effect of law, but it does direct the EEOC’s investigation of charges and determination as to whether enforcement action is merited. In litigation, courts often defer to the EEOC’s position as stated in such enforcement guidance, unless through counter-arguments or legal analysis the EEOC’s position is found to be incorrect. Now, the Enforcement Guidance on Arrest and Conviction Records has come under fire from the State of Texas, which has sued the agency and U.S. Attorney General Eric Holder in federal court asking for declar-PREVENTIVE STRATEGIES | Second Quarter 2014 Jackson Lewis P.c. 4 Discriminatory pay practices are a priority of the SEP, yet agency enforcement action remains relatively modest. atory and injunctive relief against enforcement of the guidance. The lawsuit maintains that the State and its various agencies are entitled to make and enforce their own laws on the disqualification of applicants and employees with criminal records. The State has argued that it has “the sovereign right to impose categorical bans on the hiring of criminals” and that “the Felon-Hiring Rule is invalid on its face.” [State of Texas v. EEOC, amended complaint, March 18, 2014.] ANOTHER PRIORITY ANNOUNCED in the Strategic Enforcement Plan is the enforcement of equal pay laws against compensation systems and practices that discriminate on the basis of gender. In recognition of Equal Pay Day (April 8, 2014), the EEOC website’s home page prominently featured a Statement on Equal Pay Day 2014 from Commission Chair Jacqueline Berrien. In the statement, Chair Berrien underscored that enforcement of equal pay rights has been a priority: “Through administrative enforcement alone (investigations, mediations, and conciliations), the EEOC has recovered over $85 million for victims of sex-based wage discrimination since the launch of the Equal Pay Task Force in 2010. The EEOC has made sex-based wage discrimination a national enforcement priority with the 2012 adoption of our Strategic Enforcement Plan (SEP). In Fiscal Year 2013, the Commission filed five cases involving claims of sex-based wage discrimination, including one filed in cooperation with the U.S. Department of Justice. So far in Fiscal Year 2014, EEOC has resolved two cases involving sex-based wage discrimination – one on behalf of a teacher who EEOC and the U.S. Department of Justice alleged was unlawfully paid less than her male counterpart, and another on behalf of a class of women cashiers and sandwich makers employed by a fast food restaurant who EEOC alleged were paid less than their male counterparts, in violation of federal law.” DESPITE THIS FOCUS, EEOC enforcement of pay discrimination laws remains modest. The Lilly Ledbetter Fair Pay Act of 2009 has made it easier for individuals to file pay discrimination charges. In 2013, 6,800 charges of pay discrimination were filed under Title VII and the anti-discrimination provisions of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. Although the Equal Pay Act allows plaintiffs to go directly to court without first filing with the EEOC, EPA charges represented a mere 1.1 percent (or 1,019) of all charges filed in 2013 with the EEOC. See, Notice Concerning the Lilly Ledbetter Fair Pay Act of 2009 and What You Should Know: Questions and Answers About the Equal Pay Act. SEVERAL OTHER RECENT INITIATIVES have grown out of the priorities stated in the Strategic Enforcement Plan. The Commission’s guidance on Religious Garb and Grooming in the Workplace: Rights and Responsibilities addresses the workplace protections afforded by Title VII to individuals who dress or groom in a particular way as part of their religious observances. As the guide says, Title VII requires in most instances that employers make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices. Religious discrimination charges relating to a wide range of issues have steadily increased, according to the EEOC. In fiscal year 2013, the Commission received 3,721 charges alleging religious discrimination. Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab, a Sikh turban, or a Christian cross), observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish sidelocks). Another issue attracting EEOC attention is workplace bullying. An independent 2014 survey of workplace bullying found that more than one-quarter of adult Americans reported having experienced bullying at work; 21 percent reported having witnessed bullying, and another 72 percent said they were aware that workplace bullying happens. The EEOC considers workplace bullying as a form of unlawful harassment under Title VII; however, not all workplace bullying is actionable as harassment. In 2013, there were 21,371 charges of harassment filed with the EEOC which would include those resulting from workplace bullying. 5 Jackson Lewis P.c. PREVENTIVE STRATEGIES | Second Quarter 2014 Although not always actionable under Title VII, workplace bullying as a form of harassment is attracting agency attention. In a March press release announcing a new lawsuit stemming from workplace bullying of an age-protected and diabetic employee, EEOC officials emphasized that employers have an obligation to prevent and correct conduct that can amount to workplace bullying. The lawsuit alleges that the employee was ridiculed with frequent taunts and ageist comments from his direct supervisor. Comments included “old man,” the “old food guy,” and “you can’t teach an old dog new tricks.” The EEOC further alleges that, after enduring the abusive behavior for several months, the employee reported the harassment to the human resources department, which the EEOC contends failed to take corrective action, permitted the harassment to increase, and ultimately fired the employee because of his age. The National Labor Relations Board will review the Decision and Direction of Election for football players at Northwestern University to vote for unionization. The Board’s Regional Director in Chicago found the University’s scholarship football players are “employees” within the meaning of the National Labor Relations Act and eligible for union representation. The Regional Director found appropriate a bargaining unit composed of “all football players receiving a grant-in-aid football scholarship and not having exhausted their playing eligibility.” Using the common law definition of employee in reaching his decision, the Regional Director found: 1) scholarship football players perform a service (playing football) for compensation (a scholarship); 2) scholarship players’ commitments to play football in exchange for the scholarship constitutes a contract for hire; and 3) scholarship players are under the control of the University for the entire year, including in-season and out-of-season workouts, restrictions on their entire personal life, and detailed regulations players must follow at the risk of losing their scholarship. See Northwestern Scholarship Football Players Found To Be Employees Eligible for Union Representation. n n L AB OR B OAR D T O C ONS IDE R WHE T HE R S C HOL AR S HIP - R E C IP IE NT UNIV E R S IT Y FOOT B AL L P L AY E R S AR E ‘E MP L OY E E S ’ E L IGIB L E T O UNIONIZ E n n D e v e l o p i n g L a w of t he Wor kplace The Regional Director applied the common law definition of “employee” to scholarship athletes. IT REMAINS TO BE SEEN how effective the EEOC ultimately will be in achieving the goals it established in the SEP. The Plan extends through FY 2016, at which point there will be a new administration in Washington, one that may have a different approach or emphasis to enforcing the discrimination laws under the EEOC’s 50-year-old mandate. In the meantime, employers should watch developments and trends at the agency and in the courts as the EEOC continues to implement the strategies outlined in the SEP. Jackson Lewis attorneys provide up-to-date information and analysis of developments and trends at the EEOC and the courts to help employers in their compliance efforts. Specific practice groups, such as Background Checks, Class Actions and Complex Litigation, and General Employment Litigation, serve employers’ workplace law needs in preventing and defending charges of employment discrimination. We also help employers develop preventive strategies and positive solutions for building a productive, diverse and issue-free workplace. 6 PREVENTIVE STRATEGIES | Second Quarter 2014 Jackson Lewis P.c. The University requested the NLRB’s review of the decision based on the grounds that 1) the petition presents a unique, novel issue; 2) the Regional Director has misapplied and departed from officially reported Board precedent; and 3) the Regional Director’s findings on substantial factual issues are clearly erroneous on the record and the errors prejudicially affect Northwestern’s rights. “In short,” the University said, “the Regional Director not only ignored much of the record, he also misconstrued, disregarded and misapplied Board precedent and failed to consider, contrary to the dictates of the Act and Supreme Court precedent, the public policy ramifications and practical consequences of his decision to extend the definition of an employee under the Act to collegiate student-athletes at Northwestern.” The decision of the Regional Director has created an interesting question for all colleges and universities: Are members of coaching staffs now considered to be supervisors under the NLRA? The answer most likely would be “yes.” This would mean that members of athletic department coaching staffs must be trained on their new role. Private colleges and universities must foster their understanding that the NLRB has changed the rules relating to scholarship athletes. If this is so, coaches’ actions and statements can legally bind their university and may constitute unfair labor practices in violation of the NLRA. While the players voted in an election on union representation on April 25 th , the votes will not be counted until the Board has made its decision on the players’ status. For more detailed discussion of the Northwestern University decision, see Northwestern Scholarship Football Players Found To Be Employees Eligible for Union Representation and If NCAA Scholarship Football Players Are Employees, What Are Coaches? ... Supervisors? The Jackson Lewis’ Collegiate and Professional Sports group serves the diverse needs of collegiate and professional sports entities. At the collegiate level, the Firm is regularly retained to conduct investigations into alleged infractions of NCAA rules and to represent universities before the NCAA Committee on Infractions and NCAA Infractions Appeals Committee. The Firm also advises college and university clients on compliance with the growing number of NCAA and NAIA rules and guides institutions through increasingly complex regulations governing collegiate sports. Members of the group have vast experience in advising institutions on Title IX and civil rights laws, representing colleges and universities at every stage of the compliance process, including audits, civil rights reviews, and government investigations. On April 8, National Pay Equity Day (the day which symbolizes how far into 2014 women must work to earn what men earned in 2013), President Barack Obama amended Executive Order 11246 to prohibit discrimination or retaliation against “any employee or applicant because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.” The rationale behind the expansion of E.O. 11246 is that ensuring the right of employees of federal contractors to discuss their compensation without fear of adverse action will facilitate the detection and remediation of discriminatory pay practices and will contribute to a more efficient market in federal contracting. Notably, this provision does not apply to employees who have access to such information as part of their essential job duties (such as employees in human resources or compensation) and who make unauthorized disclosure of the information. The ability of employees to discuss their pay and discover unwarranted disparities is important; however, Sections 7 and 8 of the National Labor Relations Act already protect this right. The NLRA protects certain “concerted activities” of employees, both union and non-union, and prohibits interfering with or restraining the exercise of those rights. Concerted activity includes discussing pay. Thus, unless a federal contractor falls outside the coverage of the NLRA, the amendment to E.O. 11246 likely n n OB AMA ADMINIS T R AT ION IS K E E P ING FE DE R AL C ONT R AC T OR S ON T HE IR T OE S AB OUT P AY P R AC T IC E S , E MP L OY ME NT OF V E T E R ANS n n Members of coaching staffs might be “supervisors” under the Regional Director’s interpretation. Exchanging pay information already is considered protected activity under the NLRA. D e v e l o p i n g L a w of t he Wor kplaceJackson Lewis P.c. PREVENTIVE STRATEGIES | Second Quarter 2014 7 does not impose new obligations. Likely more important is the President’s memorandum directing the DOL to publish proposed regulations that would require federal contractors and subcontractors to submit data on pay, race and gender of their employees to the Office of Federal Contract Compliance Programs. A number of laws require federal contractors not to discriminate against employees on the basis of pay; however, “effective enforcement of this mandate is impeded by a lack of sufficiently robust and reliable data on employee compensation, including data by sex and race,” the memo states. This call for new regulations means that all contractors will be required to submit sensitive pay data to the Department of Labor, which will use the data to focus OFCCP’s enforcement resources on employers that the data suggests may be engaging in pay discrimination. The agency’s obtaining access to wide-ranging pay data from contractors and using it to select contractors for compliance audits likely would be a “game-changer.” For details, please go to President Obama Signs New Executive Order and Memorandum Regarding Pay Discrimination Enforcement: What Does it Mean for Federal Contractors? IN ANOTHER INITIATIVE AIMED AT FEDERAL CONTRACTORS, the White House released a new employment tool for veterans and employers. The Veterans Employment Center is an online tool that connects veterans and service members with employers. The VEC helps translate military skills into the civilian workforce and will provide a listing of upcoming job fairs and a comprehensive database of resumes for employers who are seeking to leverage the skills and talents of veterans, service members, and their spouses. The VEC celebrates the three-year anniversary of Joining Forces, an initiative connecting military families with the resources available to them, and comes on the heels of the effective date of OFCCP’s new veteran regulations. The Office of Federal Contract Compliance Programs likely expects all federal contractors to take advantage of this new resource. While posting jobs with the VEC will not alone fulfill veterans outreach obligations, it appears to be a step in the right direction. For details, please go to White House Launches Online Veterans Employment Tool. n n T IP S T O S UR V IV E AN OFC C P C OMP L IANC E AUDIT n n As federal contractors prepare to implement some of the largest regulatory changes in decades, the Office of Federal Contract Compliance Programs is readying advance notification letters (“Corporate Scheduling Announcement Letters” or “CSALs”) telling employers of their selection for upcoming compliance reviews. The CSALs advise employers of the company locations targeted for OFCCP audits. The CSAL does not initiate an audit and is followed by a “scheduling letter.” Contractors must provide their affirmative action plan to OFCCP within 30 days of receiving a scheduling letter. Despite all the activity and preparations needed to implement OFCCP’s new veteran and disability regulations, it is imperative employers notify their field personnel about this CSAL mailing and instruct them to forward the letters immediately to the responsible corporate official. For more information, please view the Jackson Lewis PowerPoint: OFCCP Sends Large Wave of Advance Notice Audit Letters: Is Your Organization Ready to Respond? Federal contractors facing an OFCCP audit can take steps to avoid common mistakes that may lead to unnecessary disclosures and increased vulnerability. The Jackson Lewis Affirmative Action and OFCCP Diversity Planning group has presented a webinar on “Top Ten List of Contractor Mistakes in an OFCCP Audit” to point federal contractors in the right direction when preparing for and defending an OFCCP audit. A summary of the “top ten” points follows: 10) Know the chain of command at the OFCCP and know how to work that chain effectively. Keep the local office in the loop even if higher level officials at Compliance audit scheduling letters prompt review of do’s and don’t’s for federal contractors. Submission of sensitive data to the DOL may be a game-changer for federal contractors. D e v e l o p i n g L a w of t he Wor kplaceJackson Lewis Recognized for Superior Client Service Named among the BTI Consulting Group’s 2014 “Power Elite” for strength in maintaining client relationships, Jackson Lewis is pleased to be recognized by more than 500 corporate counsel as one of the top law firms in building and maintaining client relationships. “Jackson Lewis’ top priority has always been providing the highest level of legal representation and stellar client service,” said Vincent A. Cino, Firm Chairman. “This ranking reflects our attorneys’ hard work and dedication to developing and strengthening client relationships, and it is gratifying to know the companies we work with recognize and value this commitment.” The BTI Consulting Group’s 2014 Client Relationship Scorecard report, which is based solely on client feedback, shows Jackson Lewis outperforming more than 95 percent of the market serving large corporate clients in building and maintaining client relationships. For more information on the Scorecard, please go to Jackson Lewis Recognized for Superior Client Service. 8 the national office become involved. 9) Do not treat the compliance officer as “the enemy.” Help the compliance officer at the local office close the audit by collecting the necessary information; be prepared, be informed, and be polite. 8) Use the OFCCP’s resources: don’t take for granted that the compliance officer will know all the latest. Know the Regulations and the Federal Contract Compliance Manual, and use the agency’s compliance resources, such as webinars, FAQs, and website. 7) Be careful not to confuse “affirmative action” with “non-discrimination”: they are two separate concepts embedded in employers’ compliance obligations. Be aware of “steering” issues now a focus of OFCCP compliance audits. 6) Understand the new areas of concentration in an OFCCP audit: veterans and disability obligations. These are new requirements (effective March 2014) that were added to existing requirements. 5) Provide everything requested by the OFCCP, unless there is not a good basis for the request or the request is overbroad. Offer alternative data, information, or documents. 4) Know your company’s data and analysis results before the audit; propose changes and provide explanation during the audit. 3) Do not necessarily agree with the OFCCP’s unit of analysis regarding adverse impact/ hiring discrimination or compensation. 2) Refine applicant data before it is submitted to the OFCCP and make sure the changes are supportable and credible. 1) Understand the bargain that ultimately is struck between the OFCCP and the employer: conciliation agreements and progress reports are negotiable. The Jackson Lewis Affirmative Action Compliance and OFCCP Defense group provides specialized assistance in developing and implementing affirmative action plans, identifying pertinent labor market areas, analyzing census-related statistical data, providing sample plan texts, notices, letters and policy statements, preparing utilization and availability analyses, setting goals, and conducting impact ratio and compensation analyses. Among other client services, Jackson Lewis attorneys train management to update the AAP annually without significant cost, defend clients against the imposition of citations and allegations of discrimination in connection with audits by the OFCCP and in related litigation, and perform highly-specialized vulnerability audits.