OFCCP recently entered into two hiring settlements where the Agency alleged systemic discrimination against male applicants. These settlements reminds us OFCCP is not just focused on statistical trends against minorities and females, but that the Agency is also running adverse impact analyses against whites and males and will “go where the numbers take them.”
In our experience working with employers, some AAP software only “red flag” adverse impact analyses for minorities and females. Employers should take this opportunity to check their software and/or AAPs to ensure the statistical analyses are looking for trends against whites and males as well. In your software and AAPs, this may be reflected by a negative standard deviation (for example, -2 standard deviations reflects a statistically significant trend against the traditionally favored group, either non-minorities or males).
If you are not running these analyses, there could be big potential liability lurking beneath the surface OFCCP will find in an audit. [Along these same lines, check your software/AAPs to ensure the standard deviation calculation is turned “on” and run in this way. While the Uniform Guidelines’ 80% Rule is still the statistical “rule of thumb” , OFCCP analyzes the data (and makes findings) based on a standard deviation analysis, so it is important that we run the analyses the same way to identify potential problem areas.]