Just don’t tell anyone! The OFCCP’s website has various pages detailing the leadership structure, their biographies, and even a National Office directory that can be used to confirm who is sitting in what chair. Although those pages have yet to be updated and still list Craig Leen as the Director, the parent site over at the Department of Labor was updated on Inauguration Day and now clearly lists Jenny Yang as the Director of the Office of Federal Contract Compliance Programs.
This appears to confirm what has been swirling around the rumor mill for the last couple of weeks. It could be an over-eager staffer jumping the gun before things are final, but it is looking like the former Chair of the EEOC will be the next OFCCP Director.
So, Who Is Jenny Yang?
Well, she is an attorney who, in her early career, was an investigating prosecutor for the Labor Litigation Section of the DOJ’s Civil Rights Division for three years. Then she joined a private law firm where she primarily represented workers in civil rights litigation. Perhaps her most notable accomplishment there was as counsel of record in Dukes v. Wal-Mart, the largest sex discrimination class action ever in which she represented 1.6 million women alleging discriminatory pay and promotion policies and practices in Walmart stores.
From there, she was appointed to the EEOC by President Barack Obama in 2012 and was eventually chosen as that agency’s Chair. During her tenure at EEOC she established the Select Task Force on the Study of Harassment in the Workplace, specifically focusing on workplace sexual harassment. She was also a prime influence behind the now somewhat defunct “Component 2” pay data reporting requirement.
Since leaving the EEOC in 2017, Yang has championed, among other things, increased workplace protections for temporary workers and independent contractors, LGBTQ+ protections, and has a particular interest in potential discrimination in “algorithmic employment decisions” (selections made with the assistance of artificial intelligence).
So, What Can We Expect From a Yang-led OFCCP?
This is speculation, of course, but it should come as no surprise if the OFCCP continues to focus on pay discrimination and turns up the heat there. Unlike the options Yang had as a private plaintiffs’ attorney and at the EEOC, the options for the OFCCP are more limited to a Title VII discrimination framework, as distinct from other theories of pay equity that have generally gained more traction.
Harassment is likely to become more of a focus in OFCCP audits, and the agency now has more tools at its disposal for that. In addition to simply emphasizing harassment in audits generally, outgoing Director Leen has cleared the path for things like compensation and harassment focused reviews.
And the interest in machine-assisted selection tools and methods will likely add a complicating element to the OFCCP’s traditional bread-and-butter hiring discrimination investigations.
So, What Should You Be Doing Now?
To be clear, nothing changes overnight, though the incoming administration does appear to be hitting the ground running in general, so we might see change come a bit faster to the OFCCP than we have experienced in past transitions.
Proactive federal contractor employers will be partnering with someone to get their compensation house in order. Simply checking the technical compliance box by doing some sort of annual compensation analysis has been insufficient for a couple of years now, so if your organization is not going beyond that, there is no time like the present (to start).
And keep in mind that your compensation analysis project should not be a “one and done” affair. Smart money is invested in ongoing analyses and reviews by people who know what they’re doing and can give your organization a clear picture of potential risk posed by a Title VII framework to be sure, but also an Equal Pay Act perspective, various state and local approaches where you operate, and “pay equity” in more general terms. Because it isn’t just the OFCCP, EEOC, and/or private litigators who could come knocking at your door, but external and internal activist groups could show interest as well, including your own executive leadership and/or employees.
Anti-harassment policies should be reviewed and updated, if necessary, and it would be a good idea to get those policies back in front of your employees’ eyes as a periodic reminder of expectations and the organization’s commitment. Review internal complaint processes and any outstanding or even recently concluded internal complaints and investigations. And review the extent to which employees and supervisors are trained on anti-harassment issues.
Automated employment selection tools should be monitored for potential adverse impact just like any other selection process. They should be treated like an employment test, not like a “step” in the overall process (which isn’t examined unless and until analyses of the overall process indicate a problem). Analyze them separately. And speaking of employment tests, be sure those are being analyzed for potential adverse impact and validated, if necessary.
Other than that, keep following developments and reading our blog! We will continue to bring you the news you need when you need it. And, of course, if you have any questions or concerns, feel free to reach out to us at firstname.lastname@example.org.