67246 Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 

1The Administrative Review Board, and, before 

its creation, the Secretary of Labor, have turned to 

Title VII standards for determining compliance with 

the nondiscrimination requirements of E.O. 11246. 

See, e.g., OFCCP v. Greenwood Mills, Inc., 89–OFC–

039, ARB Final Decision and Order, December 20, 

2002, at 5; OFCCP v. Honeywell, 77–OFCCP–3, 

Secretary of Labor Decision and Order on 

Mediation, June 2, 1993, at 14 and 16, Secretary of 

Labor Decision and Remand Order, March 2, 1994. 

The EEOC has issued guidance on compensation 

discrimination in the form of a chapter in the EEOC 

Compliance Manual on ‘‘Compensation 

Discrimination.’’ EEOC Directive No. 915.003 (Dec. 

5, 2000). EEOC is the agency with primary 

enforcement responsibility for Title VII and its 

reasonable interpretations of Title VII are given 

some deference by the courts. See Gen. Elec. Co. v. 

Gilbert, 429 U.S. 125, 141–42 (1976). E.O. 11246 has 

been amended several times since its original 

promulgation. For ease of reference, ‘‘E.O. 11246’’ 

or ‘‘Executive Order 11246’’ as used hereinafter 

refers to Executive Order 11246, as amended.

2The term ‘‘systemic compensation 

discrimination’’ used hereinafter references 

compensation discrimination under a disparate 

treatment, pattern or practice theory of 

discrimination.

DEPARTMENT OF LABOR

Employment Standards Administration 

Office of Federal Contract Compliance 

Programs; Interpreting 

Nondiscrimination Requirements of 

Executive Order 11246 With Respect to 

Systemic Compensation 

Discrimination, Notice

AGENCY: Office of Federal Contract 

Compliance Programs, Employment 

Standards Administration, Department 

of Labor.

ACTION: Notice of proposed standards for 

systemic compensation discrimination 

under Executive Order 11246; request 

for comments. 

SUMMARY: The Office of Federal Contract 

Compliance Programs requests 

comments on proposed standards for 

systemic compensation discrimination 

under Executive Order 11246.

DATES: Comments must be submitted by 

the following dates: 

Hard Copy: Your comments must be 

postmarked by December 16, 2004. 

Facsimile: Your comments must be 

sent by December 16, 2004.

ADDRESSES: Comments should be 

submitted to Joseph DuBray, Jr., 

Director, Division of Policy, Planning 

and Program Development, OFCCP. 

Electronic mail is the preferred method 

for submittal of comments. Comments 

by electronic mail must be clearly 

identified as pertaining to the notice 

interpreting nondiscrimination 

requirements of Executive Order 11246 

with respect to systemic compensation 

discrimination, and sent to ofccppublic@dol.gov. As a convenience to 

commenters, public comments 

transmitted by facsimile (FAX) machine 

will be accepted. The telephone number 

of the FAX receiver is (202) 693–1304. 

To assure access to the FAX equipment, 

only public comments of six or fewer 

pages will be accepted via FAX 

transmittal. Where necessary, hard 

copies of comments, clearly identified 

as pertaining to the notice of proposed 

standards and methodologies for 

evaluating contractors’ and 

subcontractors’ compensation practices, 

may also be delivered to Joseph DuBray, 

Jr., Director, Division of Policy, 

Planning and Program Development, 

OFCCP, Room C–3325, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Because of delays in mail delivery, 

OFCCP suggests that commenters 

planning to submit comments via U.S. 

Mail place those comments in the mail 

well before the deadline by which 

comments must be received. Receipt of 

submissions will not be acknowledged, 

except that the sender may request 

confirmation of receipt by calling 

OFCCP at (202) 693–0102 (voice), or 

(202) 693–1308 (TTY).

FOR FURTHER INFORMATION CONTACT:

Joseph DuBray, Jr., Director, Division of 

Policy, Planning and Program 

Development, OFCCP, Room C–3325, 

200 Constitution Avenue, NW., 

Washington, DC 20210. Telephone (202) 

693–0102 (voice), or (202) 693–1308 

(TTY). Copies of this notice in 

alternative formats may be obtained by 

calling (202) 693–0102 (voice), or (202) 

693–1308 (TTY). The alternative formats 

available are large print, electronic file 

on computer disk, and audiotape. The 

Notice is available on the Internet at 

http://www.dol.gov/esa.

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. OFCCP Compliance Reviews Focus 

on Systemic Compensation 

Discrimination 

The Department of Labor’s Office of 

Federal Contract Compliance Programs 

(OFCCP) enforces Executive Order 

11246, which prohibits covered federal 

contractors and subcontractors from 

making employment decisions on the 

basis of race, color, national origin, 

religion, or sex.1

OFCCP conducts compliance reviews 

to determine whether covered 

contractors have been engaging in 

workplace discrimination prohibited by 

E.O. 11246. As part of its compliance 

review process, OFCCP investigates 

whether contractors’ pay practices are 

discriminatory. 

OFCCP compliance reviews typically 

produce cases that involve allegations of 

systemic discrimination, not 

discrimination against a particular 

individual employee. OFCCP systemic 

compensation discrimination cases 

typically are proven under a disparate 

treatment, pattern or practice theory of 

discrimination.2 The burdens of 

persuasion necessary to succeed on a 

discrimination claim differ depending 

on whether the case involves allegations 

of a pattern or practice of discrimination 

or allegations that a particular 

individual was subjected to 

discrimination. In a case involving 

alleged discrimination against a 

particular individual, the plaintiff must 

establish by a preponderance of the 

evidence that the employer made the 

challenged employment decision 

because of the individual’s race, color, 

religion, sex, or national origin. United 

States Postal Service Bd. of Governors v. 

Aikens, 460 U.S. 711, 715 (1983). In a 

pattern or practice case, ‘‘plaintiffs must 

‘‘establish by a preponderance of the 

evidence that racial discrimination was 

the company’s standard operating 

procedure—the regular rather than the 

unusual practice.’’ Teamsters v. United 

States, 431 U.S. 324, 336 (1977).’’ 

Bazemore v. Friday, 478 U.S. 385, 398 

(1986).

In addition to differences in the 

burdens of persuasion as between cases 

involving alleged discrimination against 

a particular individual and an alleged 

pattern or practice of discrimination, the 

burdens of production necessary to 

survive a motion for summary 

disposition are different between the 

two types of cases. In both types of 

cases, a plaintiff bears the initial burden 

of presenting a prima facie case of 

discrimination. There is no precise set 

of requirements for a plaintiff’s prima 

facie case. ‘ ‘‘The facts necessarily will 

vary in title VII cases, and the 

specification * * * of the prima facie 

proof required from [a plaintiff] is not 

necessarily applicable in every respect 

to differing factual circumstances.’ ’’ 

Int’l Bhd. of Teamsters v. United States, 

431 U.S. 324, 358 (1977) (quoting 

McDonnell Douglas, 411 U.S. at 802 n. 

13). ‘‘The importance of McDonnell 

Douglas lies, not in its specification of 

the discrete elements of the proof there 

required, but in its recognition of the 

general principle that any Title VII 

plaintiff must carry the initial burden of 

offering evidence adequate to create an 

inference that an employment decision 

was based on a discriminatory criterion 

illegal under [Title VII].’’ Teamsters, 431 

U.S. at 358. 

In an individual case, the plaintiff 

typically must rely on evidence 

pertaining to his or her own 

circumstances to establish a prima facie 

Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 67247

3By contrast to sex-based compensation 

discrimination, OFCCP has published regulations 

providing specific guidance with respect to hiring 

discrimination. Thus, OFCCP is a signatory to the 

Uniform Guidelines on Employee Selection 

Procedures (UGESP), which provide formal 

guidance as to how OFCCP evaluates contractors’

selection procedures to determine compliance with 

E.O. 11246. See 41 CFR Part 60–3. Before being 

published as a final rule, 43 Fed. Reg. 38290 

(August 25, 1978), UGESP was published in the 

Federal Register as a proposed rule and subject to 

public comment. See 42 Fed. Reg. 65542 (December 

30, 1977).

4The proposed standards contained in this Notice 

are intended to provide definitive interpretations of 

both the SDG and E.O. 11246 with respect to 

systemic compensation discrimination, regardless 

of the specific basis (e.g., sex, race, national origin, 

etc.) of the discrimination.

5Although used in practice by several OFCCP 

regions for several years, the grade theory was never 

formally adopted by OFCCP.

case of discrimination. The prima facie 

case creates a presumption of 

discrimination that the employer may 

rebut by articulating a legitimate 

nondiscriminatory reason for the alleged 

discriminatory employment decision. 

McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802 (1973). The employer 

must produce admissible evidence of a 

legitimate, nondiscriminatory reason for 

the challenged employment decision. 

Texas Dep’t of Community Affairs v. 

Burdine, 450 U.S. 248, 254 (1981). 

‘‘Th[e] [employer’s] burden is one of 

production, not persuasion; ‘it can 

involve no credibility assessment.’ ’’

Reeves v. Sanderson Plumbing 

Products, Inc., 530 U.S. 133, 142 (2000) 

(quoting St. Mary’s Honor Center v. 

Hicks, 509 U.S. 502, 509 (1993)). Once 

the employer articulates a legitimate 

nondiscriminatory reason for the 

challenged employment decision, the 

plaintiff is afforded the opportunity to 

prove that the employer’s articulated 

reason is a pretext for discrimination. 

McDonnell Douglas, 411 U.S. at 804; 

Reeves, 530 U.S. at 142. ‘‘Proof that the 

[employer’s] explanation is unworthy of 

credence is simply one form of 

circumstantial evidence that is 

probative of intentional discrimination. 

***’’ Reeves, 530 U.S. at 147. ‘‘Other 

evidence that may be relevant to any 

showing of pretext includes * * * [the 

employer’s] general policy and practice 

with respect to minority employment. 

* * * On the latter point, statistics as to 

[the employer’s] employment policy and 

practice may be helpful to a 

determination of whether [the 

employer’s actions] * * * conformed to 

a general pattern of discrimination 

***’’ McDonnell Douglas, 411 U.S. at 

804–05. 

In a pattern or practice case, the 

plaintiffs’ ‘‘initial burden is to 

demonstrate that unlawful 

discrimination has been a regular 

procedure or policy followed by an 

employer. * * *’’ Teamsters, 431 U.S. 

at 360. ‘‘The burden then shifts to the 

employer to defeat the prima facie 

showing of a pattern or practice by 

demonstrating that the [plaintiffs’] proof 

is either inaccurate or insignificant.’’ Id.

‘‘The employer’s defense must, of 

course, be designed to meet the prima 

facie case of the [plaintiffs] * * * ’’

which typically focuses on ‘‘a pattern of 

discriminatory decisionmaking.’’ Id., at 

360 n. 46. However, there are no 

‘‘particular limits on the type of 

evidence an employer may use.’’ Id.

Despite these differences in the 

burdens of persuasion and production, 

however, once the plaintiff has offered 

evidence that is sufficient to establish a 

prima facie case, and the employer has 

produced evidence that is sufficient to 

rebut the prima facie case, then the 

factfinder must decide whether 

plaintiffs have demonstrated 

discrimination by a preponderance of 

the evidence. ‘‘[O]ur decision in United 

States Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983), although 

not decided in the context of a patternand-practice case, makes clear that if the 

defendants have not succeeded in 

having a case dismissed on the ground 

that plaintiffs have failed to establish a 

prima facie case, and have responded to 

the plaintiffs’ proof by offering evidence 

of their own, the factfinder then must 

decide whether the plaintiffs have 

demonstrated a pattern or practice of 

discrimination by a preponderance of 

the evidence. This is because the only 

issue to be decided at that point is 

whether the plaintiffs have actually 

proved discrimination. Id., at 715.’’

Bazemore, 478 U.S. at 398.

B. OFCCP Has Not Issued Significant 

Interpretive Guidance on Systemic 

Compensation Discrimination Under 

Executive Order 11246 

In 1970, the Department of Labor 

published ‘‘Sex Discrimination 

Guidelines,’’ codified at 41 CFR Part 60–

20, which included a section (60–20.5) 

on ‘‘[d]iscriminatory wages.’’ 35 FR 

8888 (June 9, 1970). The Sex 

Discrimination Guidelines (SDG) do not 

provide specific standards for 

determining systemic compensation 

discrimination for OFCCP or a 

contractor.3 Rather, the SDG provide 

that ‘‘[t]he employer’s wages (sic) 

schedules must not be related to or 

based on the sex of the employees,’’ and 

contains a short ‘‘note’’ that references 

the ‘‘more obvious cases of 

discrimination * * * where employees 

of different sexes are paid different 

wages on jobs which require 

substantially equal skill, effort and 

responsibility and are performed under 

similar working conditions.’’ 41 CFR 

60–20.5(a) (2004). OFCCP has not 

promulgated any definitive 

interpretation of the SDG, nor has a 

definitive interpretation arisen through 

longstanding agency practice.4

Instead, OFCCP has provided only a 

general policy statement about 

compensation discrimination in the 

preamble to a May 4, 2000 Notice of 

Proposed Rulemaking (NPRM). In the 

May 4, 2000 NPRM, OFCCP formally 

expressed the Department of Labor’s 

policy regarding compensation analysis: 

More recently, an additional objective 

of the proposed revision has been to 

advance the Department of Labor’s goal 

of pay equity; that is, ensuring that 

employees are compensated equally for 

performing equal work. 

65 FR 26089 (May 4, 2000). 

This stated policy was reflected in 

several significant settlements in 

systemic compensation discrimination 

cases in which OFCCP relied on 

sophisticated multiple regression 

analyses to remedy an alleged violation 

of E.O. 11246. OFCCP has not, however, 

published formal guidance providing 

any interpretation of E.O. 11246 with 

respect to systemic compensation 

discrimination. 

C. OFCCP’s Informal Approaches to 

Systemic Compensation Discrimination 

in the Late 1990s Involved the 

Controversial ‘‘Pay Grade Theory’’

In the late-1990s several OFCCP 

regions began to use a controversial 

‘‘grade theory’’ approach to 

compensation discrimination analysis.5

The basic unit of analysis under the 

grade theory is the pay grade or pay 

range. Under this theory, it is assumed 

that employees are similarly situated 

with respect to evaluating compensation 

decisions regarding such employees if 

the contractor has placed their jobs in 

the same pay grade: 

By the very act of creating a grade 

level system, where each employee has 

approximately the same potential to 

move from the minimum to the 

maximum of his/her grade range 

dependent upon performance, the 

employer has recognized that certain 

jobs are essentially similar in terms of 

skill, effort and responsibility. 

‘‘Systemic Compensation Analysis: 

An Investigatory Approach’’ (hereinafter 

‘‘SCA’’), at 5. A later paper, ‘‘Update on 

Systemic Compensation Analysis’’

(hereinafter, ‘‘Update’’), also described 

this pay grade assumption: 

67248 Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 

6OFCCP officials informally distributed the SCA 

and the Update in the late 1990’s. They were not 

published by OFCCP nor did they bear any 

indication of formal agency approval, e.g., they 

were not printed on OFCCP letterhead.

7This method was not described in materials 

made available to the general public. The method 

was used primarily in OFCCP’s Southeast Region.

8As noted in footnote 1, supra., the EEOC is the 

agency with primary enforcement responsibility for 

Title VII, and its reasonable interpretations of Title 

VII are given some deference by the courts. See 

General Elec. Co. v. Gilbert, 429 U.S. 125, 141–42 

(1976).

Where we determine that each 

employee in a salary grade system has 

the same opportunity, subject to 

performance, to move to the maximum 

rate of the salary grade range without a 

change in job title, we believe the 

employer * * * has already identified 

certain jobs as having similar value to 

the organization.

Update, at 6.6

After identifying employees in the 

same pay grade, one version of the grade 

theory method called for a comparison 

of the median compensation of males 

versus females, and minorities versus 

non-minorities in each pay grade. SCA, 

at 6; Update, at 7. If there was a 

‘‘significant’’ difference (although 

‘‘significant’’ was not defined) in 

median compensation between males/

females or minorities/non-minorities 

within a given pay grade, then the next 

step was to assess whether this disparity 

is explained by median or average 

differences in other factors, such as time 

in grade, prior experience, education, 

and performance. SCA, at 7; Update, at 

11. However, this method did not use 

tests of statistical significance in 

determining whether a pattern of 

compensation discrimination exists. If a 

‘‘pattern’’ of pay disparities (although 

‘‘pattern’’ was not defined) emerged not 

explicable by analysis of median or 

average differences in time in grade, 

prior experience, or other factors, 

OFCCP alleged that the contractor 

violated the nondiscrimination 

requirements of E.O. 11246. Update, at 

15. 

In another version of the grade theory 

method used by some OFCCP regions in 

the late 1990s,7 the pay grade was 

included as a factor in a regression 

model that typically covered all exempt 

employees in the workplace within a 

single, ‘‘pooled’’ regression. The 

regression typically included factors 

such as time in grade, experience, and 

education. This method did rely on tests 

of statistical significance, although 

rarely did OFCCP develop anecdotal 

evidence to support the statistical 

analysis under this method.

D. The Pay Grade Theory Is Inconsistent 

With Title VII Standards 

OFCCP has discontinued using these 

pay grade methods because the agency 

has determined that the methods’

principal assumptions related to pay 

grade or pay range do not comport with 

Title VII standards as to whether 

employees are similarly situated. 

OFCCP recognizes that, with respect to 

compensation discrimination, similarity 

in job content, skills and qualifications 

involved in the job, and responsibility 

level are crucial determinants of 

whether employees are similarly 

situated under Title VII. See, e.g., EEOC 

Compliance Manual on ‘‘Compensation 

Discrimination,’’ EEOC Directive No. 

915.003 (Dec. 5, 2000), at 10–5 to 10–

8 [hereinafter referenced as ‘‘CMCD’’] 8; 

Block v. Kwal-Howells, Inc., No. 03–

1101, 2004 WL 296976, at *2–*4 (10th 

Cir. Feb. 17, 2004); Williams v. 

Galveston Ind. Sch. Dist., No. 03–40436, 

78 Fed. Appx. 946, 949–50, 2003 WL 

22426852 (5th Cir. Oct. 23, 2003); 

Verwey v. Illinois Coll. of Optometry, 43 

Fed. Appx. 996, 2002 WL 1836507, at *4 

(7th Cir. Aug. 9, 2002); Lang v. Kohl’s 

Food Stores, Inc., 219 F.3d 919, 922–23 

(7th Cir. 2002); Rodriguez v. SmithKline 

Beecham, 224 F.3d 1, 8 (1st Cir. 2000); 

Coward v. ADT Sec. Sys., Inc., 140 F.3d 

271, 274 (D.C. Cir. 1998); Aman v. Cort 

Furniture Rental Corp., 85 F.3d 1078, 

1087 (3d Cir. 1996); Sprague v. Thorn 

Americas, Inc., 129 F.3d 1355, 1362 

(10th Cir. 1997); Tomka v. Seiler Corp.,

66 F.3d 1295, 1310–11 (2d Cir. 1995), 

abrogated on other grounds by 

Burlington Indus., Inc. v. Ellerth, 524 

U.S. 742 (1998); Mulhall v. Advance 

Sec., Inc., 19 F.3d 586, 598 (11th Cir. 

1994); Brinkley-Obu v. Hughes Training, 

Inc., 36 F.3d 336, 343 (4th Cir. 1994); 

Miranda v. B&B Cash Grocery Store, 

Inc., 975 F.2d 1518, 1526–31 (11th Cir. 

1992); EEOC v. Sears, Roebuck & Co.,

839 F.2d 302, 243–53 (7th Cir. 1988); 

Marcoux v. State of Maine, 797 F.2d 

1100, 1107 (1st Cir. 1986); Eastland v. 

Tennessee Valley Auth., 704 F.2d 613, 

624–25 (11th Cir. 1983); Woodward v. 

United Parcel Serv., Inc., 306 F. 

Supp.2d 567, 574–75 (D. S.C. 2004); 

Lawton v. Sunoco, Inc., No. 01–2784, 

2002 WL 1585582, at *7 (E.D. Pa. Jul 17, 

2002); Stroup v. J.L. Clark, No. 

99C50029, 2001 WL 114404, at *6 (N.D. 

Ill. Feb. 2, 2001); Donaldson v. Microsoft 

Corp., 205 F.R.D. 558, 563 (W.D. Wash. 

2001); Dobbs-Weinstein v. Vanderbilt 

Univ., 1 F. Supp.2d 783, 803–04 (M.D. 

Tenn. 1998); Beard v. Whitley Co.

REMC, 656 F. Supp. 1461, 1471–72 

(N.D. Ind. 1987); Dalley v. Michigan 

Blue Cross/Blue Shield, Inc., 612 F. 

Supp. 1444, 1451–52 (E.D. Mich. 1985); 

EEOC v. Kendall of Dallas, Inc., No. TY–

80–441–CA, 1984 WL 978, at *9–*12 

(E.D. Tex. Mar. 8, 1984); Presseisen v. 

Swarthmore Coll., 442 F. Supp. 593, 

615–19 (E.D. Pa. 1977), aff’d 582 F.2d 

1275 (3d Cir. 1978)(Table).

Contrary to these standards, the grade 

theory assumed that employers’ preexisting job-groupings, such as pay 

grades or pay ranges, are absolute 

indicia of similarity in employees’ job 

content, skills and qualifications 

involved in the job, and responsibility 

level. While all of the courts in the 

above string cite have implicitly rejected 

the grade theory by emphasizing the 

importance of facts about the work 

employees actually perform, several of 

these courts have expressly rejected the 

proposition that a pay grade offers 

absolute indicia of similarity in job 

content, qualifications and skills 

involved in the job, and responsibility 

level. See Williams, 78 Fed. Appx. at 

949 n. 9; Cort Furniture, 85 F.3d at 

1087; Woodward, 306 F. Supp.2d at 

574–75. The facts about employees’

actual work activities, the skills and 

qualifications involved in the job, and 

responsibility levels in a particular case 

may, of course, happen to coincide with 

the employer’s pay grade or pay range, 

but the crucial determinant of whether 

the employees are similarly situated is 

their actual work activities, not the fact 

that the employees have been placed in 

the same pay grade or range.

In practice, utilization of the grade 

theory (as defined by the discussion 

above) resulted in groupings of 

employees performing dissimilar work. 

Indeed, as noted above, this approach 

was described by some as ‘‘identify[ing] 

certain jobs as having similar value to 

the organization.’’ Update at 6. To 

evaluate discrimination based on the 

‘‘value’’ or ‘‘worth’’ of work to the 

employer constitutes the comparable 

worth theory of compensation 

discrimination which has been widely 

discredited by the courts. See American 

Federation of State, County, and 

Municipal Employees v. State of 

Washington, 770 F.2d 1401, 1404 (9th 

Cir. 1985)(‘‘The comparable worth 

theory, as developed in the case before 

us, postulates that sex-based wage 

discrimination exists if employees in job 

classifications occupied primarily by 

women are paid less than employees in 

job classifications filled primarily by 

men, if the jobs are of equal value to the 

employer, though otherwise 

dissimilar.’’); Colby v. J.C. Penney Co.,

811 F.2d 1119, 1125–26 (7th Cir. 

1987)(describing comparable worth 

theory as ‘‘bas[ing] liability on the fact 

that the[] employer paid higher wages to 

workers in job classifications 

predominantly occupied by men than to 

Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 67249

9Federal courts disagree on whether the Equal 

Pay Act’s standard of ‘‘substantial equality’’ applies 

to gender-based pay discrimination claims under 

Title VII, absent direct evidence of discrimination. 

See, e.g., Conti v. Universal Enter., Inc., 50 Fed. 

Appx. 690, 2002 WL 31108827, at *7 (6th Cir. Sept. 

20, 2002); Clark v. Johnson & Higgins, 181 F.3d 100, 

1999 WL 357804, at *3–*4 (6th Cir. May 28, 

1999)(Text in Westlaw); Loyd v. Phillips Bros., Inc., 

25 F.3d 518, 525 (7th Cir. 1994); EEOC v. Sears, 

Roebuck & Co., 839 F.2d 302, 243–53 (7th Cir. 

1988); Merrill v. S. Methodist Univ., 806 F.2d 600, 

606 (5th Cir. 1986); McKee v. Bi-State Dev. Agency, 

801 F.2d 1014, 1019 (8th Cir. 1986); Plemer v. 

Parsons-Gilbane, 713 F.2d 1127, 1133–34 (5th Cir. 

1983); see also CMCD, at 10–6 n.18. Because an 

OFCCP enforcement action may be subject to APA 

review in a federal court that does not adopt the 

‘‘similarly situated’’ standard, OFCCP will consult 

with the Office of the Solicitor to address this issue 

on a case by case basis.

workers in job classifications 

predominantly occupied by women, 

though it paid the same wages to men 

and women within each classification’’); 

American Nurses Association v. Illinois,

783 F.2d 716, 720–22 (7th Cir. 

1986)(considering plaintiffs ‘‘charge that 

the state pays workers in predominantly 

male job classifications a higher wage 

not justified by any difference in the 

relative worth of the predominantly 

male and the predominantly female jobs 

in the state’s roster.’’); Lemons v. City 

and County of Denver, 620 F.2d 228, 

229 (10th Cir. 1980)(‘‘In summary, the 

suit is based on the proposition that 

nurses are underpaid in City positions, 

and in the community, in comparison 

with other and different jobs which they 

assert are of equal worth to the 

employer.’’); Christensen v. Iowa, 563 

F.2d 353, 354–56 (8th Cir. 

1977)(‘‘Appellants, who are clerical 

employees at UNI, argue that UNI’s 

practice of paying male plant workers 

more than female clerical workers of 

similar seniority, where the jobs are of 

equal value to UNI, constitutes sex 

discrimination and violates Title VII’’); 

see also County of Washington v. 

Gunther, 452 U.S. 161, 165 

(1981)(‘‘Respondents’’ claim is not 

based on the controversial concept of 

‘comparable worth’ under which 

plaintiffs might claim increased 

compensation on the basis of a 

comparison of the intrinsic worth or 

difficulty of their job with that of other 

jobs in the same organization or 

community.’’ [footnotes omitted]); 

Gunther, 452 U.S. at 203 (Rehnquist, J., 

dissenting)(‘‘The opinion does not 

endorse the so-called ‘comparable 

worth’ theory: though the Court does 

not indicate how a plaintiff might 

establish a prima facie case under Title 

VII, the Court does suggest that 

allegations of unequal pay for unequal, 

but comparable, work will not state a 

claim on which relief may be granted. 

The Court, for example, repeatedly 

emphasizes that this is not a case where 

plaintiffs ask the court to compare the 

value of dissimilar jobs or to quantify 

the effect of sex discrimination on wage 

rates.’’); Judith Olans Brown et al., Equal 

Pay for Jobs of Comparable Worth: An 

Analysis of the Rhetoric, 21 Harv. C.R.–

C.L. Rev. 127, 129 (1986)(‘‘ ‘Comparable 

worth’ means that workers, regardless of 

their sex, should earn equal pay for 

work of comparable value to their 

common employer. . . . The basic 

premise of comparable worth theory is 

that women should be able to 

substantiate a claim for equal wages by 

showing that their jobs and those of 

male workers are of equal value to their 

common employer.’’); Hydee R. 

Feldstein, Comment, Sex-Based Wage 

Discrimination Claims After County of 

Washington v. Gunther, 81 Colum. L. 

Rev. 1333, 1333 (1981)(noting 

comparable worth ‘‘theory holds that 

employees performing work of equal 

value, even if the work they do is 

different, should receive the same 

wages.’’). 

Based on these considerations, the 

Department interprets E.O. 11246 and 

the SDG as not permitting the grade 

theory approach to systemic 

compensation discrimination. Instead, 

the Department interprets E.O. 11246 

and the SDG as prohibiting systemic 

compensation discrimination involving 

dissimilar treatment of individuals who 

are similarly situated, based on 

similarity in work performed, skills and 

qualifications involved in the job, and 

responsibility levels. 

E. The Department Has Decided To 

Promulgate Interpretive Guidance on 

Systemic Compensation Discrimination 

To Guide Agency Officials and Covered 

Contractors and Subcontractors 

The Department of Labor has decided 

to formally propose detailed standards 

interpreting E.O. 11246 and the SDG 

with respect to systemic compensation 

discrimination and to solicit public 

comment on the proposed standards. 

This interpretive guidance also will 

provide standards and methods for 

OFCCP evaluations of contractors’

compensation practices during 

compliance reviews. This will ensure 

that agency personnel and covered 

federal contractors and subcontractors 

understand the substantive standards 

for systemic compensation 

discrimination under E.O. 11246. The 

Department believes that contractors 

and subcontractors are more likely to 

comply with E.O. 11246 if they 

understand the substantive standards 

which determine whether there is 

systemic compensation discrimination 

prohibited by E.O. 11246. Further, 

agency officials will have a stronger 

basis for pursuing investigations of 

possible systemic compensation 

discrimination because of the 

transparency and uniformity provided 

by these standards. Finally, the 

Department will have the benefit of 

commentary from all interested parties 

in developing final guidelines. 

These proposed standards are 

intended to govern OFCCP’s analysis of 

contractors’ compensation practices, 

and in particular, OFCCP’s 

determination of whether a contractor 

has engaged in systemic compensation 

discrimination. In addition, these 

proposed standards are intended to 

constitute a definitive interpretation of 

the SDG and E.O. 11246 with respect to 

systemic compensation discrimination. 

II.Discussion of the Proposed Standards 

OFCCP proposes to adopt standards 

for interpreting E.O. 11246 and the SDG 

with respect to systemic compensation 

discrimination. The systemic 

compensation discrimination analysis 

as set forth in these proposed standards 

has two major characteristics: (1) the 

determination of employees who are 

‘‘similarly situated’’ for purposes of 

comparing contractor pay decisions will 

focus on the similarity of the work 

performed, the levels of responsibility, 

and the skills and qualifications 

involved in the positions; and (2) the 

analysis will rely on a statistical 

technique known as multiple regression.

Under OFCCP’s proposed standard, 

employees are similarly situated with 

respect to pay decisions where the 

employees perform similar work, have 

similar responsibility levels, and occupy 

positions involving similar 

qualifications and skills. See discussion 

and cases cited under Section ID, 

supra.9

The determination of whether 

employees are similarly situated must 

be based on the actual facts about the 

work performed, the responsibility level 

of the employees, and whether the 

positions involve similar skills and 

qualifications. The employer’s 

preexisting groupings developed and 

maintained for other purposes, such as 

job families or affirmative action 

program job groups, may provide some 

indication of similarity in work, 

responsibility level, and skills and 

qualifications. However, these 

preexisting groupings are not 

dispositive, and OFCCP will not assume 

that these groupings involve groupings 

of similarly situated employees. For 

example, it cannot be assumed that 

employees are similarly situated merely 

because they share the same pay grade 

67250 Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 

10 In this respect, OFCCP will not rely on the 

grade theory assumptions discussed supra., at 

Sections IC and ID.

or range, or because their pay can 

progress to the top of a pay grade or 

range without changing jobs.10 Thus, 

OFCCP will investigate whether such 

preexisting groupings do in fact group 

employees who perform similar work, 

and whose positions involve similar 

skills, qualifications, and responsibility 

levels, by looking at job descriptions 

and conducting employee interviews. 

Based on sufficient empirical data (e.g., 

job descriptions and employee 

interviews), OFCCP will determine 

which employees are in fact similarly 

situated.

In addition to similarity in work 

performed, skills and qualifications, and 

responsibility levels, systemic 

compensation discrimination under 

E.O. 11246 requires that the comparison 

take into account legitimate factors that 

affect compensation. In order to account 

for the influence of such legitimate 

factors on compensation, a statistical 

analysis known as ‘‘multiple 

regression,’’ must be used. Multiple 

regression is explained as follows:

Multiple regression analysis is a statistical 

tool for understanding the relationship 

between two or more variables. Multiple 

regression involves a variable to be 

explained—called the dependent variable—

and additional explanatory variables that are 

thought to produce or be associated with 

changes in the dependent variable. For 

example, a multiple regression analysis 

might estimate the effect of the number of 

years of work on salary. Salary would be the 

dependent variable to be explained; years of 

experience would be the explanatory 

variable. Multiple regression analysis is 

sometimes well suited to the analysis of data 

about competing theories in which there are 

several possible explanations for the 

relationship among a number of explanatory 

variables. Multiple regression typically uses 

a single dependent variable and several 

explanatory variables to assess the statistical 

data pertinent to these theories. In a case 

alleging sex discrimination in salaries, for 

example, a multiple regression analysis 

would examine not only sex, but also other 

explanatory variables of interest, such as 

education and experience. The employer—

defendant might use multiple regression to 

argue that salary is a function of the 

employee’s education and experience, and 

the employee—plaintiff might argue that 

salary is also a function of the individual’s 

sex.

Daniel L. Rubenfeld, Reference Guide 

on Multiple Regression, in Federal 

Judicial Center, Reference Manual on 

Scientific Evidence, at 181 (2d ed. 

2000). 

The multiple regression model must 

include those factors that are important 

to how the contractor in practice makes 

pay decisions. ‘‘Such factors could 

include the employees’ education, work 

experience with previous employers, 

seniority in the job, time in a particular 

salary grade, performance ratings, and 

others.’’ CMCD, at 10–18. OFCCP 

generally will attempt to build the 

regression model in such a way that 

controls for the factors that the 

investigation reveals are important to 

the employer’s pay decisions, but also 

allows the agency to assess how the 

employers’ pay decisions affect most 

employees. One factor that must be 

controlled for in the regression model is 

categories or groupings of jobs that are 

similarly situated based on the analysis 

of job similarity noted above (i.e., 

similarity in the content of the work 

employees perform, and similarity in 

the skills, qualifications, and 

responsibility levels of the positions the 

employees occupy). This will ensure 

that the analysis compares the treatment 

of employees who are in fact similarly 

situated.

In addition, OFCCP will investigate 

the facts of each particular case to 

ensure that factors included in the 

regression are legitimate and are not 

themselves influenced by unlawful 

discrimination, which is often discussed 

in case law as a factor ‘‘tainted’’ by 

discrimination. However, OFCCP will 

not automatically presume that a factor 

is tainted without initially investigating 

the facts of the particular case. OFCCP 

will determine whether a factor is 

tainted by evaluating proof of 

discrimination with respect to that 

factor, but not based on the fact that the 

factor has an influence on the outcome 

of a regression model that includes the 

factor. See, e.g., Morgan v. United Parcel 

Service of America, Inc., 380 F.3d 459, 

470 (8th Cir. 2004) (‘‘Plaintiffs’’ only 

evidence of discrimination in past pay 

is the apparent correlation between race 

and center-manager base pay during the 

class period. But that correlation is what 

Plaintiffs have evidence of only by 

omitting past pay. They have no 

evidence, statistical or otherwise, that 

past pay disparities were racially 

discriminatory. This sort of 

bootstrapping cannot create an inference 

of discrimination with regard to either 

class-period base pay or past pay.’’); 

Smith v. Xerox Corp., 196 F.3d 358, 371 

n. 11 (2d Cir. 1999) (‘‘Absent evidence 

tending to show that the CAF scores 

were tainted they should have been 

included in a multiple regression 

analysis in an effort to eliminate a 

relatively poor performance compared 

to coworkers as a cause of each 

plaintiff’s termination. Certainly, 

performance is a factor Xerox was 

permitted to consider in deciding whom 

to retain.’’); Ottaviani v. State Univ. of 

New York, 875 F.2d 365, 325 (2d Cir. 

1988) (‘‘The question to be resolved, 

then, in cases involving the use of 

academic rank factors, is whether rank 

is tainted by discrimination at the 

particular institution charged with 

violating Title VII. Although appellants 

reiterate on appeal their claim that rank 

at New Paltz was tainted, it is clear that 

the district judge accepted and 

considered evidence from the parties on 

both sides of this issue, and that she 

rejected the plaintiffs’ contentions on 

this point. At trial, the plaintiffs failed 

to adduce any significant statistical 

evidence of discrimination as to rank. 

As the district court stated in its 

opinion, the plaintiffs’ studies of rank, 

rank at hire, and waiting time for 

promotion ‘were mere compilations of 

data’ which neither accounted for 

important factors relevant to assignment 

of rank and promotion, ‘nor 

demonstrated that observed differences 

were statistically significant.’ Ottaviani, 

679 F.Supp. at 306. The defendants, on 

the other hand, offered persuasive 

objective evidence to demonstrate that 

there was no discrimination in either 

placement into initial rank or promotion 

at New Paltz between 1973 and 1984, 

and the district court chose to credit the 

defendants’ evidence. Upon review of 

the record, we cannot state that the 

court’s rulings in this regard were 

clearly erroneous.’’); CMCD, at 10–18 

(discussing use of performance rating in 

multiple regression analysis for 

assessing systemic compensation 

discrimination). 

The factors that influence pay 

decisions may not bear the same 

relationship to compensation for all 

categories of jobs in the employer’s 

workforce. For example, performance 

may have a more significant influence 

on compensation for a high-level 

executive, than for technicians or 

service workers. This issue must be 

addressed through either of two 

methods. One method is to perform 

separate regressions for each category of 

jobs in which the relationship between 

the factors and compensation is similar 

(while including category factors in 

each regression that control for 

groupings of employees who are 

similarly situated based on work 

performed, responsibility level, and 

skills and qualifications). If separate 

regressions by categories of jobs would 

not permit OFCCP to assess the way the 

contractor’s compensation practices 

impact on a significant number of 

employees, OFCCP may perform a 

‘‘pooled’’ regression, which combines 

Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 67251

11An ‘‘interaction term’’ is a factor used in the 

regression model whose value is the result of a 

combination of subfactors, which allows the factor 

to vary based on the combined effect of the 

subfactors. For example, a performance by job level 

interaction term would allow performance to have 

a different impact on compensation depending on 

the job level.

these categories of jobs into a single 

regression (while including an OFCCPdeveloped category factor in the 

‘‘pooled’’ regression that controls for 

groupings of employees who are 

similarly situated based on work 

performed, responsibility level, and 

skills and qualifications). However, if a 

pooled regression is used, the regression 

must include appropriate ‘‘interaction 

terms’’ 11 in the pooled regression to 

account for differences in the effects of 

certain factors by job category. OFCCP 

will run statistical tests generally 

accepted in the statistics profession 

(e.g., the ‘‘Chow test’’), to determine 

which interaction terms should be 

included in the pooled regression 

analysis.

Systemic compensation 

discrimination under E.O. 11246 must 

be based on disparities that are 

‘‘statistically significant,’’ i.e., those that 

could not be expected to have occurred 

by chance. ‘‘While not intending to 

suggest that ‘precise calculations of 

statistical significance are necessary in 

employing statistical proof,’ the 

Supreme Court has stated that ‘‘a 

fluctuation of more than two or three 

standard deviations would undercut the 

hypothesis that decisions were being 

made randomly with respect to [a 

protected trait].’’ Hazelwood Sch. Dist. 

v. United States, 433 U.S. 299, 311 n.17 

(1977).’’ CMCD, at 10–14 n.32. To 

ensure uniformity and predictability, 

OFCCP will conclude that a 

compensation disparity is statistically 

significant under these standards if it is 

significant at a level of two or more 

standard deviations, based on measures 

of statistical significance that are 

generally accepted in the statistics 

profession. 

OFCCP will seldom make a finding of 

systemic discrimination based on 

statistical analysis alone, but will obtain 

anecdotal evidence to support the 

statistical evidence. See, e.g., Teamsters, 

431 U.S. at 338–39 (‘‘The Government 

bolstered its statistical evidence with 

the testimony of individuals who 

recounted over 40 specific instances of 

discrimination. * * * The individuals 

who testified about their personal 

experiences with the company brought 

the cold numbers convincingly to life.’’); 

Bazemore, 478 U.S. at 473 (noting that 

statistics were supported by ‘‘evidence 

consisting of individual comparisons 

between salaries of blacks and whites 

similarly situated’’); Morgan, 380 F.3d at 

471 (‘‘One of the most important flaws 

in Plaintiffs’’ case is that they adduced 

no individual testimony regarding 

intentional discrimination. As 

mentioned above, Plaintiffs’ purported 

anecdotal evidence was insufficient for 

the working-conditions claim, and we 

see none with regard to pay. Although 

such evidence is not required, the 

failure to adduce it ‘‘ ‘reinforces the 

doubt arising from the questions about 

validity of the statistical evidence.’ ’’

EEOC v. Sears, Roebuck & Co., 839 F.2d 

302, 311 (7th Cir. 1988) (quoting Griffin

v. Board of Regents, 795 F.2d 1281, 

1292 (7th Cir. 1986))’’); Dukes v. WalMart Stores, Inc., 22 F.R.D. 137, 165–66 

(N.D. Cal. 2004) (‘‘[P]laintiffs have 

submitted * * * 114 declarations from 

class members around the country 

* * *. [who will] testify to being paid 

less than similarly situated men, * * *, 

and being subjected to various 

individual sexist acts.’’); Bakewell v. 

Stephen F. Austin Univ., 975 F. Supp. 

858, 905–06 (E.D. Tex. 1996) (‘‘The 

paucity of anecdotal evidence of 

discrimination severely diminishes 

plaintiffs’ contention that a pattern or 

practice of salary discrimination against 

female faculty members prevails at 

SFA.’’); see also CMCD, at 10–13 n.30 

(‘‘A cause finding of systemic 

discrimination should rarely be based 

on statistics alone.’’). 

In order to equip OFCCP to conduct 

statistical analysis necessary for 

evaluating whether there is systemic 

compensation discrimination, the 

agency has created a Division of 

Statistical Analysis and hired expertlevel statisticians to staff this new unit.

III. Proposed Standards 

Standards for Systemic Compensation 

Discrimination Under Executive Order 

11246 

1. As used herein, ‘‘systemic 

compensation discrimination’’ is 

discrimination under a pattern or 

practice theory of disparate treatment. 

2. Employees are similarly situated 

under these standards if they are similar 

with respect to the work they perform, 

their responsibility level, and the skills 

and qualifications involved in their 

positions. In determining whether 

employees are similarly situated under 

these standards, actual facts regarding 

employees’ work activities, 

responsibility, and skills and 

qualifications are determinative. 

Preexisting groupings, such as pay 

grades or AAP job groups, are not 

controlling; rather, such groupings may 

be relevant only to the extent that they 

do in fact group employees with similar 

work, skills and qualifications and 

responsibility levels. To determine 

whether such preexisting groups are 

relevant one must evaluate and compare 

information obtained from job 

descriptions and from employee 

interviews. The determination that 

employees are similarly situated may 

not be based on the fact that the 

contractor or subcontractor has grouped 

employees into a particular grouping, 

such as a pay grade or pay range, or that 

employees’ pay can progress to the top 

of the pay grade or range based on 

performance or without changing jobs. 

Rather, such preexisting groupings must 

in fact group employees who perform 

similar work, and who occupy positions 

involving similar skills, qualifications, 

and responsibility levels, which may be 

determined only by understanding 

employees’ actual work activities. 

3. Systemic compensation 

discrimination exists where there are 

statistically significant compensation 

disparities between similarly situated 

employees (as defined in Paragraph 2, 

above), after taking into account 

legitimate factors which influence 

compensation. Such legitimate factors 

may include education, experience, 

performance, productivity, location, etc. 

The determination of whether there are 

statistically significant compensation 

disparities between similarly situated 

employees after taking into account 

such legitimate factors must be based on 

a multiple regression analysis.

4. A compensation disparity is 

statistically significant under these 

standards if it is significant at a level of 

two or more standard deviations, based 

on measures of statistical significance 

that are generally accepted in the 

statistics profession. 

5. If a pooled regression model is 

used, this must be accompanied by 

statistical tests generally accepted in the 

statistics profession (e.g., the ‘‘Chow 

test’’), to determine which interaction 

terms should be included in the pooled 

regression model. 

Standards for OFCCP Evaluation of 

Contractors’ Compensation Practices 

1. OFCCP will investigate contractors’

and subcontractors’ compensation 

practices to determine whether the 

contractor or subcontractor has engaged 

in systemic compensation 

discrimination under these standards. 

OFCCP will issue a Notice of Violations 

alleging systemic discrimination with 

respect to compensation practices based 

only on these standards. 

2. OFCCP will make a finding of 

systemic compensation discrimination 

in those cases where there is anecdotal 

67252 Federal Register / Vol. 69, No. 220 / Tuesday, November 16, 2004 / Notices 

evidence of discrimination (as discussed 

in Paragraph 6, below, which notes that, 

except in unusual cases, OFCCP will not 

issue a Notice of Violation (NOV) 

alleging systemic compensation 

discrimination without providing 

anecdotal evidence to support OFCCP’s 

statistical analysis) and where there 

exists a statistically significant (as 

defined in Paragraph 4, below) 

compensation disparity based on a 

multiple regression analysis that 

compares similarly situated employees 

(as defined in Paragraph 3, below) and 

controls for factors that OFCCP’s 

investigation reveal were used in 

making pay decisions. OFCCP may 

reject inclusion of such a factor upon 

proof that the factor was actually tainted 

by the employer’s discrimination. 

OFCCP will attach the results of the 

regression analysis to, and summarize 

the anecdotal evidence in, the Notice of 

Violations issued to the contractor or 

subcontractor. 

3. Employees are similarly situated 

under these standards if they are similar 

with respect to the work they perform, 

their responsibility level, and the skills 

and qualifications involved in their 

positions. In determining whether 

employees are similarly situated under 

these standards, OFCCP will collect and 

rely on actual facts regarding 

employees’ work activities, 

responsibility, and skills and 

qualifications. In addition, OFCCP will 

investigate whether preexisting 

groupings, such as pay grades or AAP 

job groups, do in fact group employees 

with similar work, skills and 

qualifications and responsibility levels, 

by evaluating and comparing 

information obtained from job 

descriptions and from employee 

interviews. OFCCP will not base its 

determination that employees are 

similarly situated on the fact that the 

contractor or subcontractor has grouped 

employees into a particular grouping, 

such as a pay grade or pay range, or that 

employees’ pay can progress to the top 

of the pay grade or range based on 

performance or without changing jobs. 

Rather, OFCCP will investigate whether 

such preexisting groupings do in fact 

group employees who perform similar 

work, and who occupy positions 

involving similar skills, qualifications, 

and responsibility levels, by looking at 

job descriptions and conducting 

employee interviews. 

4. A compensation disparity is 

statistically significant under these 

standards if it is significant at a level of 

two or more standard deviations, based 

on measures of statistical significance 

that are generally accepted in the 

statistics profession. 

5. OFCCP will determine whether a 

pooled regression model is appropriate 

based on two factors: (a) The objective 

to include at least 80% of the employees 

(in the workforce subject to OFCCP’s 

compliance review) in some regression 

analysis; and (b) whether there are 

enough incumbent employees in a 

particular regression to produce 

statistically meaningful results. If a 

pooled regression is required, OFCCP 

will conduct statistical tests generally 

accepted in the statistics profession 

(e.g., the ‘‘Chow test’’), to determine 

which interaction terms should be 

included in the pooled regression 

model. 

6. In determining whether a violation 

has occurred, OFCCP will consider 

whether there is anecdotal evidence of 

compensation discrimination, in 

addition to statistically significant 

compensation disparities. Except in 

unusual cases, OFCCP will not issue a 

Notice of Violation (NOV) alleging 

systemic compensation discrimination 

without providing anecdotal evidence to 

support OFCCP’s statistical analysis. In 

unusual cases, OFCCP may assert a 

systemic discrimination violation based 

only on anecdotal evidence, if such 

evidence presents a pattern or practice 

of compensation discrimination. 

7. OFCCP will also assert a 

compensation discrimination violation 

if the contractor establishes 

compensation rates for jobs (not for 

particular employees) that are occupied 

predominantly by women or minorities 

that are significantly lower than rates 

established for jobs occupied 

predominantly by men or nonminorities, where the evidence 

establishes that the contractor made the 

job wage-rate decisions based on the 

sex, race or ethnicity of the incumbent 

employees that predominate in each job. 

Such evidence of discriminatory intent 

may consist of the fact that the 

contractor adopted a market survey to 

determine the wage rate for the jobs, but 

established the wage rate for the 

predominantly female or minority job 

lower than what that market survey 

specified for that job, while establishing 

for the predominantly male or nonminority job the full market rate 

specified under the same market survey.

Signed at Washington, DC this 10th day of 

November, 2004. 

Victoria A. Lipnic, 

Assistant Secretary for the Employment 

Standards Administration. 

Charles E. James, Sr., 

Deputy Assistant Secretary for Federal 

Contract Compliance.

[FR Doc. 04–25401 Filed 11–15–04; 8:45 am] 

BILLING CODE 4510–CM–P

DEPARTMENT OF LABOR

Employment Standards Administration 

Office of Federal Contract Compliance 

Programs; Guidelines for SelfEvaluation of Compensation Practices 

for Compliance With 

Nondiscrimination Requirements of 

Executive Order 11246 With Respect to 

Systemic Compensation 

Discrimination, Notice

AGENCY: Office of Federal Contract 

Compliance Programs, Employment 

Standards Administration, Department 

of Labor.

ACTION: Notice of proposed guidelines 

for self-evaluation of compensation 

practices for compliance with Executive 

Order 11246 with respect to systemic 

compensation discrimination; request 

for comments. 

SUMMARY: The Office of Federal Contract 

Compliance Programs requests 

comments on proposed guidelines for 

self-evaluation of compensation 

practices for compliance with Executive 

Order 11246 with respect to systemic 

compensation discrimination.

DATES: Comments must be submitted by 

the following dates: 

Hard Copy: Your comments must be 

postmarked by December 16, 2004. 

Facsimile: Your comments must be 

sent by December 16, 2004.

ADDRESSES: Comments should be 

submitted to Joseph DuBray, Jr., 

Director, Division of Policy, Planning 

and Program Development, OFCCP. 

Electronic mail is the preferred method 

for submittal of comments. Comments 

by electronic mail must be clearly 

identified as pertaining to the notice of 

guidelines for self-evaluation of 

compensation practices for compliance 

with nondiscrimination requirements of 

Executive Order 11246 with respect to 

systemic compensation discrimination, 

and sent to ofccp-public@dol.gov. As a 

convenience to commenters, public 

comments transmitted by facsimile 

(FAX) machine will be accepted. The 

telephone number of the FAX receiver 

is (202) 693–1304. To assure access to 

the FAX equipment, only public 

comments of six or fewer pages will be 

accepted via FAX transmittal. Where 

necessary, hard copies of comments, 

clearly identified as pertaining to the 

notice of proposed standards and 

methodologies for evaluating 

contractors’ and subcontractors’

compensation practices, may also be 

delivered to Joseph DuBray, Jr., Director, 

Division of Policy, Planning and 

Program Development, OFCCP, Room 

C–3325, 200 Constitution Avenue, NW.,