Several BCGi members have recently raised questions regarding whether and to what extent the OFCCP’s affirmative action obligation for federal contractor employees requires contractors to monitor employment selection decisions based on the various combinations of sex and race/ethnicity. Unfortunately, the answer is somewhat complicated. As it stands, the OFCCP’s regulations do not explicitly require these intersectional analyses—but that does not necessarily mean that the OFCCP is prohibited from citing contractors for intersectional discrimination violations.
What Does “Intersectional” Mean in This Context?
“Intersectionality” is defined as “the interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.”
The Uniform Guidelines on Employee Selection Procedures requires contractors to maintain records that can be used to determine the impact that employment tests and other selection procedures have on the employment opportunities of people “by identifiable race, sex, or ethnic group.” The regulations go on to define the applicable race, sex, and ethnic groups that contractors are required to use, though the OFCCP has long allowed contractors to use the current sex and race/ethnicity designations used for EEO-1 reporting.
Typically, contractors monitor employment selection procedures (hiring, promotion, termination, etc.) by comparing the selection rates among the sexes and among the various race/ethnicity groups (individually and people of color (POC) in the aggregate) separately. For example, one might compare the selection rate of all Hispanics to the selection rate of all Asians.
An “intersectional” analysis might examine the selection rates of, for example, Hispanic women to Hispanic men.
Are Intersectional Analyses Required for “Compliance?”
Performing statistical analyses of employment selection procedures by sex and by race/ethnicity are required, and failure to perform such analyses would be deemed “non-compliant” by the OFCCP and result in a technical violation in an audit. However, it is unclear whether or not failing to perform intersectional analyses violates the OFCCP’s regulations. As happens in statutory interpretation, the answer could come down to a single, seemingly innocuous word, “or.”
As it stands, and as noted above, the Uniform Guidelines require statistical analyses “by identifiable race, sex, or ethnic group.” So if, for example, the OFCCP decided to start “recognizing” a new race/ethnicity group for people of “Middle-Eastern” descent, it is highly unlikely that the agency could require contractors to perform analyses using this new group without updating the regulations or absent wider adoption of the group by, for instance, the EEOC and/or the U.S. Census Bureau. The Uniform Guidelines prohibit the OFCCP from making up their own sex or race/ethnicity combinations. And while contractors are free to analyze their employment selection procedures any way they like and are not prohibited from using “non-standard” sex or race/ethnicity designations, failure to perform analyses using the standard designations is a violation.
But the regulations are silent on whether and to what extent analysis by different combinations of “identifiable” sex or race/ethnicity are required. The phrase, “by identifiable race, sex, or ethnic group” (emphasis added), is not made any clearer by the substitution of the word “and” for “or,” and does not make the obligation any clearer. In fact, we read-in an “and” rather than “or,” otherwise the regulations would seem to give contractors the choice of performing analyses only by sex and not at all by race/ethnicity, or vice versa, when that clearly is not the case. If the OFCCP were to interpret the regulations to require intersectional analyses, such interpretation is unlikely to be deemed unreasonable, though the resulting requirement would likely face additional challenges.
Actually requiring contractors to perform intersectional analyses across the board is highly unlikely due to practical considerations more so than legal ones. In years gone by, contractors traditionally performed two statistical analyses for each employment selection process (typically also by AAP job group): one comparing the selection rates of men and women, and one comparing the selection rates of Whites* to all POC in the aggregate. Several years ago the OFCCP began enforcing the Uniform Guidelines as written and contractors began performing “race-by-race” analyses, potentially increasing the number of analyses for each process (in each AAP job group) from two to eight.
Assuming that all possible combinations of sex and race/ethnicity are comprised of at least 2% of the overall analysis population, intersectional analyses could mean that the number of analyses a contractor would need to perform for a single AAP could go from the dozens to the thousands. And while the analyses themselves might be able to be performed “programmatically” by a computer, the interpretation of those thousands of results still lies with human beings who have limited time and resources. The burden of such a requirement is likely to be too cumbersome to be reasonable, and therefore likely to fail should the OFCCP decide to go down that road.
Is the OFCCP Performing Intersectional Analyses in Audits?
There is some indication that the OFCCP is pursuing cases of potential intersectional discrimination, but that is not necessarily to say that the agency is running thousands of intersectional analyses in every audit. Another practitioner recently gave a presentation that included discussion of an OFCCP intersectional discrimination settlement, but little detail is publicly known about the case.
Keep in mind that the OFCCP’s resources are not unlimited. Even if the agency has coded their systems to perform intersectional analyses, it is impractical for them to do so and provide any reasonable level of interpretation in every audit. Accordingly, it is unlikely for the agency to even consider intersectionality when reviewing hiring, promotion, and termination data unless the OFCCP compliance officer is “tipped off” to a specific issue based on other information such as employee complaints or employee interview responses.
The OFCCP might be more likely to explore intersectionality issues with respect to compensation, given the new OFCCP Director’s emphasis on pay equity and where discussions of intersectionality are more common. But intersectional analyses of compensation data suffers from the same burden of such analyses in the employment selection process context. So without some other indicator of an intersectional issue, or someone randomly deciding to look into intersectionality, it is still unlikely for the agency to perform intersectional compensation analyses as a matter of course.
When Should Contractors Consider Intersectional Analyses?
Your mileage may vary, as they say, but most contractors will likely take things one step at a time and only investigate intersectionality after eliminating potential discrimination on the basis of sex or race/ethnicity alone. But if there are indications of potential intersectional issues, by all means investigate them.
Any robust investigation of “hot” analysis results (statistically significant differences), be it an employment selection process or compensation, should include inquiries into whether anyone has come forward with relevant complaints. If there are indications of potential intersectionality issues, the employer should strongly consider intersectional analyses, even if the initial, “traditional” analyses are coming back “clean” (no statistically significant differences).
Absent that, BCGi recommends using your best judgment. Few people in your organization, if any, are as “plugged in” to operations in this context than you, the compliance professional. Trust your gut if you think there are certain areas of your organization where intersectionality is more or less likely to be an issue.
The AAP Workforce Analysis might shed some light on areas where there could be intersectional issues since the report breaks down your demographics by sex and individual race/ethnicity category. However, the Workforce Analysis is performed by department or other business unit and not AAP job group, so the Workforce Analysis might be of limited value.
Contractors are not required to prepare AAP Job Group Analyses breaking out the individual race/ethnicity groups, though BCGi does recommend contractors do so. Not only is it one of the first things the OFCCP will request in an audit (until they update the regulations, at which point it will almost certainly become required), a Job Group Analysis by individual race/ethnicity group (and sex) could be a useful tool for identifying potential intersectionality issues using the same analysis groups the OFCCP will use in an audit.
Biddle AAP clients should talk to their consultant about any potential needs regarding intersectional analyses. Non-clients are invited to contact BCGi for further discussion.
*Note that BCGi capitalizes all “official” race/ethnicity categories in conformity with longstanding EEOC practice. Capitalization is not meant to connote relative importance.