Equal Employment Opportunity: Progress Made on GAO Recommendations to Improve Nondiscrimination Oversight, but Challenges Remain
Released: 2019-09-19T00:00:00

Letter

Background

Federal Requirements Related to Equal Employment Opportunity and Affirmative Action

Private companies are generally prohibited by federal law from discriminating in employment on the basis of race, color, religion, sex, national origin, age, and disability status. Additionally, federal contractors and subcontractors are generally required to take affirmative action to ensure that all applicants and employees are treated without regard to race, sex, color, religion, national origin, sexual orientation, and gender identity, and to employ or advance in employment qualified individuals with disabilities and qualified covered veterans. EEOC enforces federal antidiscrimination laws, and OFCCP enforces affirmative action and nondiscrimination requirements for federal contractors. EEOC and OFCCP share some enforcement activities and have established a memorandum of understanding (MOU) to minimize any duplication of effort.

U.S. Equal Employment Opportunity Commission

The EEOC enforces Title VII of the Civil Rights Act of 1964, as amended, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. EEOC also is responsible for enforcing other federal laws that prohibit discrimination in employment based on age and disability, among other characteristics. EEOC investigates charges of employment discrimination from the public, litigates major cases, and conducts outreach to prevent discrimination by educating employers and workers. EEOC also pursues a limited number of cases each year designed to combat systemic discrimination, defined by the agency as patterns or practices where the alleged discrimination presented by a complainant has a broad impact on an industry, profession, company, or geographic location. EEOC can also initiate a systemic investigation under Title VII with the approval of an EEOC commissioner provided the commissioner finds there is a reasonable basis for the investigation. In fiscal year 2018, EEOC resolved about 90,558 charges of discrimination, secured more than $505 million for victims of discrimination, and filed 199 lawsuits.

Office of Federal Contract Compliance Programs

The OFCCP within DOL is responsible for ensuring that about 200,000 federal contractor establishments comply with federal nondiscrimination and affirmative action requirements. Under Executive Order 11246 and other federal laws and regulations, covered federal contractors and subcontractors are prohibited from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin and are required to take affirmative action to help ensure that all applicants and employees are treated without regard to these factors. OFCCP also enforces Section 503, and the affirmative action provisions of VEVRAA, which require covered contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities and covered veterans, respectively.

OFCCP uses two approaches to ensure compliance with federal equal employment and affirmative action requirements—enforcement and compliance assistance. OFCCP’s enforcement program primarily involves conducting evaluations of contractors’ compliance with federal requirements and these evaluations represent the preponderance of agency activity. In 2015, OFCCP compliance officers conducted 2,345 compliance evaluations, which represented about 2 percent of federal contractor establishments in its jurisdiction. OFCCP has since significantly decreased the number of compliance evaluations it conducts. In fiscal year 2018, OFCCP completed 812 compliance evaluations, which is 65 percent fewer than in fiscal year 2015. Since fiscal year 2016, OFCCP has adopted a strategy of conducting fewer compliance evaluations and prioritizing larger systemic cases. Since OFCCP can only evaluate a small fraction of federal contractors each year, the agency also carries out compliance assistance efforts, including issuing guidance, conducting outreach concerning nondiscrimination requirements, and providing compliance assistance to contractors.

OFCCP’s regulations generally require that covered contractors prepare and maintain an affirmative action program (AAP). Contractors must also comply with certain recordkeeping requirements; for example, under Executive Order 11246, covered contractors are required to maintain records pertaining to hiring, promotion, layoff or termination, rates of pay, and applications, among other records. Under OFCCP’s Executive Order 11246 regulations, an AAP is a management tool that is designed to ensure equal employment opportunity, with an underlying premise that the gender, racial, and ethnic makeup of a contractor’s workforce should be representative of the labor pools from which the contractor recruits and selects. An AAP must also include practical steps to address underrepresentation of women and minorities, such as goals for expanding employment opportunities to these groups in instances in which they are underrepresented. Companies must create an AAP for each business establishment—generally, a physical facility or unit that produces goods or services, such as a factory, office, or store for the federal contractor.

Religious Freedom Restoration Act of 1993 (RFRA)

Each year the federal government provides billions of dollars to organizations that provide social services to needy families and individuals. Some of these funds are provided through competitive grants to faith-based organizations (FBO), which may include religious groups, like churches, mosques, synagogues, and temples, or charitable organizations affiliated with religious groups.

In some instances, FBOs believe it is necessary to hire only individuals who share their religious beliefs in order to carry out their mission. Title VII of the Civil Rights Act of 1964 generally prohibits employment discrimination based on religion. However, section 702(a) of the Act exempts FBOs with respect to basing employment decisions on religion, thereby permitting FBOs to intentionally, and exclusively, hire individuals who share their religious beliefs. In light of this exemption, FBOs that receive federal grant funding or that contract with the federal government have also generally been permitted to make employment decisions based on religion. OFCCP is responsible for ensuring that federal contractors comply with federal nondiscrimination requirements and provides compliance assistance to the entities it oversees, including guidance related to this exemption.

There are, however, certain federal grant programs that are subject to statutory restrictions that prohibit recipients from using grant funding, in whole or in part, to discriminate or deny employment on the basis of religion, among other factors. In June 2007, the Department of Justice’s Office of Legal Counsel issued an opinion in a particular case stating that the Religious Freedom Restoration Act of 1993 (RFRA) could be reasonably construed to require an agency to exempt FBOs from statutory requirements that restrict federal grantees from hiring on the basis of religion. Pursuant to that opinion, and the RFRA, certain federal agencies have permitted FBOs that receive funding under a program that is subject to a statutory restriction on religious-based hiring to certify that they are exempt from such restrictions, allowing these FBOs to engage in religious-based hiring, provided that they do not discriminate on other bases.

OFCCP and EEOC Could Improve the Effectiveness of their Processes to Ensure Employers Meet Equal Employment Opportunity Requirements

OFCCP and EEOC face challenges in conducting oversight efforts to ensure that employers meet applicable federal equal employment opportunity requirements. For example, in our September 2016 report, we found several shortcomings that limited OFCCP’s oversight efforts, including weaknesses in OFCCP’s compliance evaluation selection process, its reliance on voluntary compliance, and the lack of staff training. Also, in our November 2017 report, we found that OFCCP’s planned methodology for identifying equal employment disparities by industry, such as the technology sector, might not accurately identify industries at greatest risk of potential noncompliance with affirmative action and nondiscrimination requirements. Additionally, we reported that while EEOC had identified barriers to recruitment and hiring in the technology sector as a strategic priority, it had not consistently captured information identifying specific industries when conducting investigations. EEOC’s inability to capture this information using standard industry codes impeded its ability to conduct related analysis that could be used to more effectively focus its limited enforcement resources and outreach activities.

Weaknesses in the Compliance Evaluation Process Limited OFCCP’s Ability to Ensure Federal Contractors’ Nondiscrimination Compliance

In September 2016, we reported that about 22 percent of OFCCP’s compliance evaluations of supply and service contractors found violations of some type and about 2 percent had discrimination findings, since 2010 (see figure 1). When OFCCP found violations during compliance evaluations, it often resolved those violations with conciliation agreements that outlined remedial action that contractors agreed to take.

As a result of our work, we made six recommendations (see table 1). The agency has taken action to fully implement three of our recommendations: (1) to address the risk geographic imbalances in compliance evaluation assignments; (2) to review outreach and compliance assistance efforts and identify options for improving information provided to federal contractors; and (3) assess existing contractor guidance for clarity. However, the agency has not taken action to fully implement our other three recommendations that focus on improving enforcement and compliance.

With regard to the recommendations that have not been fully implemented, OFCCP has taken action to date as described below.

Focus compliance evaluations on greatest violation risk. We found the process OFCCP used to select contractors for compliance evaluations could not ensure that contractors with the highest risk of noncompliance were being selected. OFCCP’s selection process was nonrandom and did not produce a generalizable sample of contractors for evaluation. As a result, OFCCP was unable to draw conclusions about noncompliance risk in the overall federal contractor population. While the selection process included consideration of a number of neutrally applied factors, such as alphabetical order, employee count at the establishment, contract value, or contract expiration date, OFCCP was not able to identify which of these factors, or any factors, are associated with risk of noncompliance. Thus, OFCCP was unable to quantify the extent to which federal contractors in its jurisdiction are noncompliant, and did not have reasonable assurance that it was focusing its efforts on those contractors at greatest risk of not following equal employment opportunity or affirmative action requirements. Because OFCCP only conducts evaluations about 2 percent of federal contractor establishments in its jurisdiction, without an effective risk-based contractor selection process, OFCCP may be missing opportunities to evaluate whether there is a significant segment of contractors who may be more likely to violate nondiscrimination and affirmative action requirements, leaving workers potentially vulnerable.

OFCCP has taken steps to improve its contractor selection process, but has not fully implemented either this 2016 recommendation or a related recommendation we made in 2017 that it assess the quality of its proposed methods to incorporate consideration of disparities by industry before selecting contractors for compliance evaluation. Beginning in fiscal year 2020, contractors will be able to apply to the Voluntary Enterprise- wide Review Program (VERP), which aims to remove top-performing contractor participants from the pool of contractors scheduled for compliance evaluations. OFCCP also recently implemented a new scheduling list (the list of contractor establishments selected for evaluation) methodology based on research on closed cases from the previous five years (2014-2018). Thirty-three percent of the new scheduling list was comprised entirely of contractor establishments from the three industries with the highest rates of violation based on this sample of closed cases. However, the scheduling lists of the previous 5 years included nonrandom selections of contractor establishments that included a number of neutrally applied factors. If OFCCP’s goal is to prioritize contractors at highest risk of noncompliance, this new scheduling methodology may not achieve this, because contractors selected will be weighted towards prior neutrally applied selection factors, such as employee count, in addition to violation risk. Further, while VERP may remove some compliant contractors from the scheduling list pool, without overwhelming volunteer participation, it will do little to help identify those most likely to violate. Consequently, it remains unclear whether contractors with the highest risk of not following equal employment opportunity and affirmative action requirements will be selected for compliance reviews.

Monitor affirmative action programs. In 2016 OFCCP relied significantly on voluntary compliance by federal contractors, and this approach could not ensure that contractors were complying with basic requirements like developing and maintaining an AAP. By signing a qualifying federal contract, covered contractors are required to develop an AAP within 120 days of contract commencement and update it annually. However, OFCCP had no process for ensuring that the tens of thousands of establishments that had signed a qualifying federal contract do so.

OFCCP has taken steps towards implementing a mechanism to monitor AAPs but has not fully implemented this recommendation. In 2018 OFCCP contracted with an information technology vendor to develop a web-based portal to allow contractors to upload their AAPs electronically for convenience, increased compliance, and for OFCCP review and resource prioritization. Officials anticipate delivery of the portal by the close of fiscal year 2019. Simultaneously, according to officials, OFCCP has developed the necessary information collection request to obtain approval from OMB to collect all contractors’ AAPs annually. The agency anticipates that OMB approval will be timely to align with completion of the AAP portal.

Facilitate timely compliance officer training. In 2016, we found that OFCCP may not be providing timely training for new compliance officers. According to OFCCP officials, budget constraints had made it difficult to hold timely centralized training for new compliance officers. In half of the regions we visited, compliance officers or management officials we spoke with noted that this training was not provided in a timely manner after new officers are hired. For example, one compliance officer told us they worked for 8 months before receiving formal training. In one district office, compliance officers we spoke with explained that the lack of uniform, timely training made compliance officers feel unprepared when they began their job. Further, without providing timely training to new compliance officers, OFCCP cannot ensure consistency in its enforcement efforts across its offices.

OFCCP has taken steps to improve its training program, but has not fully implemented this recommendation. In 2018, OFCCP retained an expert consultant to assess its national training program and standardize its training development and evaluation process. The assessment was completed in 2019 and a plan of action was created to address any program gaps, according to agency officials. Officials reported that the plan of action was fully implemented in fiscal year 2019 and OFCCP obtained a 5 year International Association for Continuing Education and Training (IACET) accreditation for its program. OFCCP officials told us they are developing a learning management system that will allow new compliance officers easy access to training soon after the hiring. OFCCP plans for the system to include the development of course requirements by level of competence— basic, intermediate, and advanced. OFCCP officials told us they plan to roll out the new system in January 2020.

Weaknesses in Oversight Efforts Impact EEOC’s and OFCCP’s Effectiveness in Ensuring Nondiscrimination and Equal Employment Opportunity in the Technology Sector

In November 2017, we reported that the estimated percentage of minority technology workers had increased from 2005 to 2015, however, while we found statistically significant increases in the numbers of Asian and Hispanic workers, no growth had occurred for either female or Black workers (see figure 2). Further, female, Black, and Hispanic workers remain a smaller proportion of the technology workforce—mathematics, computing, and engineering occupations—compared to their representation in the general workforce. These groups have also been less represented among technology workers inside the technology sector—those companies that have the highest concentration of technology workers in such industries as computer systems design and software publishing—than outside the technology sector such as retail or finance companies. In contrast, Asian workers were more represented in these occupations than in the general workforce.

As a result of our work, we made one recommendation to EEOC and five recommendations to OFCCP (see table 2). EEOC has taken action, but not fully implemented our recommendation on identifying missing standard industry classification data from its handling of charges. By providing guidance to contractors regarding the option to include more specific goals in their AAPs, OFCCP has taken actions to implement one of our six recommendations—to take steps toward requiring contractors to disaggregate demographic data for the purpose of setting placement goals in the AAP. The agency has not taken action to fully implement our other four recommendations that focus on improving oversight, as shown in table 2 and discussed below.

With regard to the recommendations that have not been fully implemented, EEOC and OFCCP have taken action to date as described below.

Capture standard industry classifications on charges. In our November 2017 report, we found that EEOC could not analyze charge data by industry to help identify investigation and outreach priorities. This was inconsistent with EEOC strategic planning documents and EEOC Inspector General reports which, had emphasized the importance of analyzing charge data by industry. EEOC’s inability to analyze charge data by industry limits EEOC’s ability to identify trends by industry sector and conduct sector-related analyses that could be used to more effectively to focus its limited enforcement resources and outreach activities. EEOC has taken some action towards addressing missing industry code data, but has not taken actions sufficient to fully implement this recommendation. As part of an effort to overhaul its data system, EEOC has begun developing an Employer Master List that will provide a source of employer information, including industry codes, but EEOC told us that it has not yet completed this effort. It anticipates this system will be more fully developed by spring 2020.

Use data on closed evaluations to address delays. In our November 2017 report, we found that OFCCP did not analyze data on closed evaluations to understand the root causes of delays in its compliance review process that may be straining its resources and inhibiting OFCCP’s efforts to identify potential discrimination. This evaluation could help OFCCP determine whether changes are needed in its own internal policies and processes, as well as guide OFCCP’s selection of improved methods for obtaining complete, accurate, and timely documentation from federal contractors. OFCCP has taken actions but it does not fully address this recommendation. In June 2019, OFCCP officials reported that OFCCP’s procedures outlined in the Active Case Enforcement Directive (DIR 2011-01) caused delays in case closures, but it does not indicate that this conclusion resulted from the recommended analysis of internal process data from closed evaluations. OFCCP officials reported that the agency’s aged case rate—defined as a case which is open for more than 730 days and has not been referred for further enforcement— has dropped from 27.7 percent in fiscal year 2017 to 20.9 percent in fiscal year 2019, though they did not report any corresponding change in case outcomes. In September 2019, OFCCP officials told us they continue to study causes and how to address delays with effective policies that make the agency more efficient.

Assess the methods used to consider industry disparities in compliance. In our November 2017 report, we found that OFCCP’s current methodology for identifying disparities by industry—using data from the American Community Survey—may not have accurately identified industries at greatest risk of potential noncompliance with nondiscrimination and affirmative action requirements. In its agency response to our November 2017 report, OFCCP officials reported that the agency was exploring the use of U.S. Census Bureau and administrative data to refine its selection process to focus on industries with a greater likelihood of noncompliance. OFCCP has taken some action, but has not fully implemented this recommendation. In January 2019, DOL officials reported that DOL had revised its scheduling methodology to include industries with the highest rates of violations. OFCCP published the scheduling list in March 2019 and its field offices started scheduling cases in May 2019. OFCCP stated it will continue to monitor results from this revised scheduling methodology to determine its effectiveness. It will be important for OFCCP to refine these methods based on its experiences with them. This new process is a step toward focusing efforts on industries at greater risk of potential noncompliance with nondiscrimination or affirmative action requirements.

Evaluate establishment-based approach to compliance evaluations. In our November 2017 report, we found that OFCCP had made no changes to its establishment-based approach since OFCCP was founded in 1965. However, OFCCP officials acknowledged the changing nature of a company’s work can involve multiple locations and corresponding changes in the scope of hiring and recruitment. OFCCP has taken some action, but has not fully addressed this recommendation. In fiscal year 2019, OFCCP evaluated its current approach for identifying subcontractors for review. OFCCP stated that the current approach does not reliably include subcontractors in the pool from which contractors are scheduled because there is no government or public database that captures the complete universe of subcontractors and other important data. In June 2019, OFCCP submitted revisions to its process to the Office of Management and Budget (OMB) for approval.

Evaluate the Functional Affirmative Action Program. In November 2017, we found that OFCCP had not evaluated its Functional Affirmative Action Program (FAAP)—an alternative affirmative action program for a business function or unit that may exist at multiple establishments or multi-establishment contractors. OFCCP offered the FAAP so that companies could move away from establishment-based reviews, which may be more appropriate for some multi-establishment contractors.

However, few contractors participate in this program and the agency has not conducted an evaluation of it. OFCCP has taken some action, but has not fully implemented this recommendation. OFCCP has taken steps to encourage contractors to use the FAAP program without fully evaluating it as an alternative to the establishment-based program. Evaluating the FAAP could help OFCCP improve its ability to achieve its objectives and may provide broader insight for OFCCP’s overall enforcement approach.

Few Faith-based Grantees Certified They Were Exempt from Statutory Restrictions on Religious-based Hiring

In our October 2017 report, we found that from fiscal years 2007 through 2015, 9 of the 117 potential FBOs we identified across HHS, DOJ, and DOL, certified that they were exempt based on RFRA from nondiscrimination laws related to religious-based hiring (see fig. 3). As a result, the nine FBOs were allowed to consider a prospective employees’ religious faith when making employment decisions. All nine of the FBOs were awarded funding by DOJ primarily through the agency’s Justice Programs, and collectively received approximately $3.2 million, which is less than 1 percent of the $804 million in grants that DOJ awarded that were subject to statutory restrictions from fiscal years 2007 to 2015. HHS, DOJ, and DOL awarded funding to at least 2,586 grantees through 53 grant programs that were subject to statutory restrictions on religious- based hiring. The number of relevant grant programs could be higher because GAO could not identify all such programs due to data limitations.

We interviewed six of the nine faith-based grantees that certified that they were exempt from religious-based hiring restrictions. Each of the six grantees emphasized the importance of hiring someone of the same religious faith to assist with grant activities. For example, the grantees said that hiring someone with the same religious faith was critical to their mission and organizational success, and if the RFRA exemption were not available, they may not have sought the grant. We also interviewed grantees from five of 35 potential FBOs that did not certify that they were exempt from statutory restrictions based on religious-based hiring to see if they were aware of the potential for an exemption. The five grantees said that they did not recall seeing information about the exemption option in the grant application or grant award documentation. They said that they also may not have been looking for the information because they were not considering religion in their hiring decisions.

HHS, DOJ, and DOL used various methods for informing grant applicants and recipients of the statutory restrictions on religious-based hiring and their processes for obtaining an exemption from such restrictions. Specifically:

DOJ had made this information available on agency web pages as well as in the documentation that is provided to grant recipients.

DOL had a web page dedicated specifically to explaining statutory restrictions on religious-based hiring to faith-based grant applicants and recipients, which also covers the process for seeking exemptions from the restrictions.

In addition to providing information in grant announcements, HHS provided all Substance Abuse and Mental Health Services grant applicants seeking funds for substance abuse prevention and treatment services with a form that cites laws and regulations governing religious organizations that receive grant funding, including the regulation that outlines the exemption process.

As we reported in 2016, DOJ, DOL, and HHS all required grantees that seek to make employment decisions based on religion to self-certify that they met requirements to be eligible for an exemption from statutory restrictions on religious-based hiring, but varied in how they reviewed and approved requests for approval. All three agencies required that faith- based grantees complete a form or some written request to demonstrate their eligibility for the exemption, but DOL is the only agency that reviewed and approved the requests. For example, DOL required that faith-based grantees submit their requests for the exemption for review and approval by the Assistant Secretary responsible for issuing or administering the grant. Conversely, while DOJ and HHS required that faith-based grantees submit a form or written request, respectively, neither reviewed nor approved the requests.

On August 15, 2019, OFCCP proposed regulations intended to clarify the scope and application of the religious exemption to help religious employers with federal contracts and subcontracts and federally assisted construction contracts and subcontracts better understand their obligations. OFCCP proposes to add definitions of the following terms: exercise of religion; particular religion; religion; religious corporation, association, educational institution, or society; and sincere. In addition, the proposed rule states that the religious exemption should be construed to provide the broadest protection of religious exercise permitted under the Constitution and related laws, consistent with the administration policy to protect religious freedom. The stated intent of the proposed rule is to make clear that religious employers who contract with the federal government can condition employment on acceptance of or adherence to religious tenets, provided that they do not discriminate on other bases.

Chairwoman Bonamici, Senior Republican Comer, and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions you may have at this time.

GAO Contact and Staff Acknowledgments

If you or your staff have any questions about this testimony, please contact Cindy Brown Barnes, Director, Education, Workforce and Income Security Team at (202) 512-7215 or brownbarnesc@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. GAO staff who made key contributions to this testimony are Blake Ainsworth, Amber Yancey- Carroll, Melinda Bowman, Sheranda Campbell, Sarah Cornetto, Mary Crenshaw, Helen Desaulniers, Holly Dye, Michael Erb, Monika Gomez, LaToya King, Joel Marus, Diana Maurer, Heidi Neilson, James Rebbe, Katrina Taylor, Rosemary Torres Lerma, Kathleen van Gelder, and Betty Ward Zukerman.

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