Part 2: New OFCCP Directive on “Pay Equity Audits” Raises More Questions Than it Answers

Directive Also Acknowledges That “Occupation Segregation,” Not Pay Discrimination Alone, is a “driver of persistent pay disparities.” 

Important: This Blog identifies four “Confusions” (and four Resolutions of those Confusions) springing from OFCCP’s new Compensation Directive 2022-01, and also includes one “Happy Observation.”

Confusion #4: The anxiety I have heard from several major vendors, companies, and defense law firms over that portion of the new Directive stating that OFCCP may obtain the “evaluations” of “compensation system(s)” contractors conduct pursuant to 41 CFR Section 60-2.17(b)(3) is overblown and should be arrested by the following observations:

1. First, please see section 7c. of OFCCP’s new Directive appearing at the top of page 3 of the 5-page Directive to find the language OFCCP has written which has caused (unnecessary and wasted) consternation primarily among some AAP vendors and some defense lawyers:

“OFCCP notes, however, that federal contractors must maintain and make available to OFCCP documentation of their compliance with OFCCP regulations. [Editor’s Note: Quite right, but only when appropriate…upon a showing of probable cause—but that is a much longer Blog for another day]. Contractors cannot withhold these documents by invoking Attorney-Client Privilege or the Attorney Work-Product Doctrine. [Editor’s Note: Quite right.] OFCCP has the authority under its regulations to request the analyses the contractor has conducted to comply with OFCCP regulations. [Editor’s Note: Quite right, but only when appropriate as noted above]. The contractor may conduct a separate pay equity audit for the purpose of obtaining privileged legal advice, and not for demonstrating compliance with OFCCP regulations. [Editor’s Note: Quite right.] Where the contractor has produced to OFCCP an acceptable pay equity audit sufficient to demonstrate compliance with 2.17(b)(3), OFCCP will not require production of these separate pay equity audits, to the extent that the contractor can verify that they conducted the analyses under privilege. [Editor’s Note: Not quite right: the privilege will stand REGARDLESS of whether “…the contractor has produced to OFCCP an acceptable pay equity audit sufficient to demonstrate compliance with 2.17(b)(3).” OFCCP gets further confused on this, too. See below.] “In the event a contractor conducts a dual-purpose pay equity audit or analysis of employment processes − i.e., one that implicates both legal concerns and OFCCP compliance − OFCCP may request those records in appropriate circumstances.” [Editor’s Note: Not sure what OFCCP is saying here with this ambiguous and unartful language. There will be a line-drawing and the contractor will have to prove what language is subject to the Attorney-Client Privilege and/or Attorney Work-Product, as per the usual.]

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OFCCP then goes on at a later time in section 7c. of its new Directive (find it at the top of page 4 of the new Directive) to seemingly repeat (but in significantly different words) blasphemy about invading the Attorney-Client Privilege and Attorney Work-Product Doctrine if OFCCP finds a 60-2.17(b)(3) “evaluation” of “compensation system(s)” is missing. OFCCP apparently views this invasion as a penalty authorized by the contractor’s violation of the requirement to undertake an “evaluation” of “compensation system(s)” pursuant to 41 CFR Section 60-2.17(b)(3). Here is the blasphemous OFCCP sentence:

“Provided that the contractor produces to OFCCP a pay equity audit and compliance records sufficient to comply with 41 CFR 60-2.17(b)(3) in the course of its evaluation, OFCCP generally will not seek additional privileged analyses where the contractor demonstrates that it also conducted a properly privileged pay equity process with an attorney.” (fn 9, omitted)

The only thing wrong and unenforceable about OFCCP’s above statements is the one asserting (twice) that OFCCP has a legal right to invade the Attorney-Client Privilege and/or Work-Product Doctrine if the contractor fails to have a 2.17(b)(3) “evaluation” “of compensation system(s).” A violation of 2.17(b)(3) is NOT grounds to invade either the Attorney-Client Privilege or Attorney Work-Product Doctrine. Zero chance that would happen. Rather it is entirely possible a contractor could violate 2.17(b)(3) by failing or forgetting to undertake the required “evaluation” (as hard to imagine as that is) but would nonetheless have a perfectly sound objection to disclosure to OFCCP of a corporate compensation analysis based on its bona fide Attorney-Client Privilege and/or Attorney Work-Product Doctrine claim. Rather, OFCCP would merely cite the contractor for having violated 2.17(b)(3) and would have no authority to punish the contractor by seeking to access the contractor’s private compensation analysis protected by either or both the Attorney-Client Privilege and/or the Attorney Work-Product Doctrine.

What OFCCP was probably thinking, but did not write it correctly, is that the presence of an Attorney-Client Privileged/Attorney Work-Product Doctrine-protected Compensation Analyses and the simultaneous absence of a 2.17(b)(3) “evaluation” would (and should) lead to great (factual) wonderment at OFCCP whether the Compensation Analyses the contractor asserts are protected are in fact the missing 2.17(b)(3) required “evaluation.” But that is a factual question OFCCP would have the right to pursue in the proper circumstances if it thought the contractor were either lying to it or possibly confused and in error. The contractor would have every right, AND LEGAL DUTY as OFCCP quite rightly points out (see footnote 9 of the new Directive) to pony up its proof that the at-issue Compensation Analyses were properly Attorney-Client Privileged and/or properly subject to the Attorney Work-Product Doctrine to deny OFCCP’s access request and end OFCCP’s inquiry.

We have discussed the below two practice tips ad nauseum in over twenty of the annual NELI Affirmative Action Briefings over the last thirty-eight years awaiting this very day to deal with the Attorney-Client Privilege and Attorney Work-Product dilemmas. And, I think most AAP developers and defense lawyers now have this well in hand, as a result.

Practice Tip 1: Always write into the Narrative section of your AAP for Minorities and Women a short two or three sentences describing what I call: “What is in the 2.17(b)(3) box.” Just tell OFCCP what your “evaluation” of “compensation system(s)” is. Once we know what is in the 2.17(b)(3) “box,” then we also know what is NOT in the 2.17(b)(3) box (all the juicy Attorney-Client Privileged/Attorney Work-Product Doctrine analyses OFCCP wants to get its prying hands on)…so there can be NO CONFUSION or opportunity for mystery and drama with OFCCP.

My absolute favorite story about this this simple and efficient PRACTICE TIP is this. I was lecturing in San Francisco at the annual National Employment Law Institute’s (NELI’s) Affirmative Action Briefing probably in 1995-ish (important to measure the dollar values in this story, below). In that conference, I spent a few minutes discussing an OFCCP Administrative Law Judge’s (“ALJ”) then recent decision involving a compensation discrimination lawsuit OFCCP had taken to trial. OFCCP had gotten slaughtered in a harsh decision because its Labor Economist had really fouled up and turned in truly unacceptable work product which just infuriated the ALJ (you could just tell from his strong tone and words in the decision…not to mention that the good Judge also went out of his way to bury this unfortunate Expert Witness’ reputation by reciting in his written opinion all the many other times other courts in cases unrelated to OFCCP litigation had rejected this Expert Witness’ opinions and Expert Reports to these various other federal courts. (As an Expert Witness, myself, I can tell you the LARGE concern experts have for their reputation being publicly besmirched. It not only hurts professionally, but personally I hear from those who have ended up at the wrong end of the pen of a Judge who thought the Expert was just blowing smoke).

At the first break after I discussed the slaughter of this unfortunate Labor Economist, the senior Labor Counsel for one of the largest defense contractors in the United States came up to the podium to introduce himself. He said he wanted to retain me to deal with a rather substantial series of nationwide compensation analyses his office was planning to soon undertake with the company’s (what he described as) large and sophisticated Compensation Department. He wanted me to design the compensation analyses a Labor Economist I would recommend would soon undertake.

At breakfast the next day and before I resumed the NELI Affirmative Action Briefing, the Labor Counsel approached me again and reported that he had called into company headquarters after yesterday’s Briefing to advise his Compensation Department Head I was going to join a major compensation project the General Counsel’s Office was about to announce and initiate. During that call, a startled head of the Compensation Division of the company reported she had already taken the liberty to commence such a review almost a year previously. And worse, (and I am not making this up: just cannot make this stuff up) the Comp Department, it turned out, had hired the very same Labor Economist which the USDOL ALJ had shredded in the case decision I had just discussed the prior afternoon. Can you imagine? Worse, Labor Counsel reported that he learned that the LE had recently tendered his reports to the Comp Department, which was still digesting them. The shredded LE’s conclusion for one Division of the company was that there was over $12M of compensation the company owed African Americans; in another Division, the LE had concluded that the company owed almost $4M to Women and in a third Division the company owed almost $3M to Hispanics (men and women) and White men.

And it still got worse: none of these analyses were under Attorney-Client Privilege or the Attorney Work-Product Doctrine. Indeed, the General Counsel’s office was entirely unaware that the Comp Department had initiated this major compensation audit and had already paid this LE $3.5M for his analyses, with a final bill coming any day. (No kidding!) But, if this was not enough, you should have seen the shocked look on my face when the Labor Counsel came running up breathless to me at the podium as I was preparing to call all the NELI attendees back to order after our 10:30am Break that Friday morning. Barely able to speak, the Labor Counsel could only blurt out that he had just heard during our morning Break from the CEO’s Executive Secretary that she had that morning opened mail from OFCCP announcing a “Glass Ceiling audit” of the HQ offices. (Really, you just cannot make this stuff up).

So, now my assignment immediately changed to defending the audit and determining how to proceed with the shredded LE’s compensation reports.

On Monday morning, I received and began an almost 24-hours straight-through vigil to read the shredded LE’s reports and go over his spreadsheets as best I could without benefit of my LE. (Labor Counsel and Labor Economists need to work hand-in-glove on compensation analyses: each is blind and incompetent without the other.) I met with Labor Counsel and the Head of Compensation and her senior staff by conference call the next day and confirmed my understanding that the shredded LE’s reports, and analyses were in fact NOT protected by the Attorney-Client Privilege or the Attorney Work-Product doctrine. I then called the shredded LE to check with him, in an abundance of caution, as to whether he had perhaps hired legal counsel himself to work with the company (as many AAP vendors with whom I work do) to shroud his work product in one or both the Privilege and/or the Doctrine. No such luck. Worse, as I reviewed the various compensation reports, I could see many analytical errors (and mathematical errors, too) the Labor Economist had committed. Within my first few days on this matter, I began to suspect the compensation reports were terribly flawed.

The Glass Ceiling Audit Letter, in what was the habit of the day, requested copies of any compensation non-privileged compensation analyses the company may have completed. Whoops! I then advised a very unhappy client that the bad news flowing from this sequence of events was about to get even worse. I explained that it was my legal duty to advise the company that it had to pony up the shredded LE’s compensation reports to OFCCP—the ones seemingly confessing almost $20M in compensation backpay due and owing. There was a moment in the following week that the Head of the Compensation Department’s job was reportedly on-the-line (for lack of good judgement). But I suggested that cooler heads should prevail because her real mistake was to hire the shredded LE in the first place because his analyses were “junk,” in technical legal terms! (Ha-Ha!). I had by that time confirmed the presence of many analytical errors in all three analyses. This Labor Economist had clearly never been trained in Title VII law, had not collaborated with legal counsel to properly frame up his analyses. Moreover, while he had built this analyses on entirely proper statistical analyses in many cases, he had not followed Title VII’s limits and footprint. Accordingly, the architecture of his analyses were all wrong because he made assumptions and had used otherwise sound statistical analyses but which Title VII did not permit.

(NOTE: This is quite common yet to this day, even among noted Labor Economists on both sides of the analyses because compensation discrimination lawsuits are so exceedingly rare. As a result, most LE’s have not had a chance to be trained by the legal community through dozens of lawsuits per year, as has happened with failure to hire audits and age discrimination lawsuits under the Age Discrimination Act and as to wage and hour lawsuits under the Fair Labor Standards Act). The usual mess we see so often from Plaintiff LEs, while often possessed of brilliant minds and excellent statistical analyses and algorithms, is that they lack sufficient training in the applicable discrimination law, or any training in discrimination law at all. This lack of education prevents them from knowing how to properly frame their economic analyses to meet Title VII’s unique requirements and Executive Order 11246’s even more unique and more restrictive requirements. (One of the tell-tale signs of an LE who has failed to have a lawyer competent in compensation analyses by his or her side is the LE (which is most of them) who undertakes the same “compensation analyses” for Title VII, Executive Order 11246, the Equal Pay Act and for California non-discrimination law. All four statutes have different elements of proof and permissions and limitations. As a result, Labor economists must work with compensation law counsel to build each compensation analysis differently for that particular statutory analysis). We often find, too, plaintiff-side LE’s lack both the proper staffing (they no longer have graduate students to run the analyses they formerly framed for their junior LEs in training to run) and resources to do quality work they otherwise know how to do properly. (Lack of resources was NOT the problem here, however, in this unfolding drama as my client had paid the shredded LE FAR too much money for the work he did, competent or otherwise).

So, I proposed that I write a letter to OFCCP tendering the shredded LE’s compensation reports, but also suggesting OFCCP hold them in abeyance. I told OFCCP I was retaining, under Attorney-Client Privilege, a new competent Labor Economist to undertake the same studies, evaluations and reports and see where that took OFCCP and my client. Within the hour, I had retained one of my Labor Economist mentors, Finis Welch, the founder of Welch Consulting and one of the finest LEs in the country. Finis was also a favorite of USDOL’s Bureau of Labor Statistics for which he programmed many of their large national jobs reports and forecasts, and who once or twice was thought to be on the short list for the Nobel Prize in Economics.

Finis and I then went to work. A short three months later (and after digitizing thousands of data files improperly not included in the prior LE’s work) Finis produced three magnificent reports properly analyzing the company’s pay. And, to the company’s great relief, Finis entirely repudiated the shredded LE’s work product and conclusions. I concurred. In fact, as to the big Division of my client as to which the shredded LE had reported $12M+ in backpay due to African Americans, the pay to African Americans was revealed in Finis’ reports to be almost exact to the penny (non-unionized production line employees) …one of the cleanest corporate compensations reports I have ever reviewed.

I then urged the company to now WAIVE its Attorney-Client Privilege and Attorney Work-Product Doctrine protections and to authorize me to deliver the Finis Welch reports to OFCCP. The Company did, and I did. OFCCP then had two competing, or what I called, “dueling compensation reports.” I invited OFCCP to read and analyze both sets of reports. (In paper form, the reports were about five-feet high, with computer print outs). OFCCP had to pick one of these “two horses to ride” or produce a third and different analysis. A disbelieving, but delighted, OFCCP then went to work on the new Finis Welch compensation analyses while the Glass Ceiling Audit progressed on schedule without a hitch and without making any adverse findings. Nonetheless, OFCCP naturally held the Glass Ceiling Audit open pending its review of the mountains of compensation data I had just delivered. The agency reportedly hired outside LEs to review both reports, but I was never able to determine who they hired. OFCCP came back a year later with a formal letter accepting Finis Welch’s report, disregarding, and repudiating the shredded LE’s reports, and closing the compensation matter and Glass Ceiling Audit with no adverse findings.

The successful conclusion to this story got happier because the Comp Manager also kept her job, the General Counsel’s Office learned it needed to conduct a broad educational campaign within this massive company to explain the Attorney-Client Privilege, and when and how to invoke the Privilege and get lawyers competent in compensation analyses in the room. The company also installed, as a by-product of this bizarre and expensive corporate experience, rules for the vetting and retention of outside consultants to ensure competent retention of consultants, including LEs and lawyers. Oh, and by the way, Finis Welch’s bills, even when bundled in with my law firm’s bills, were under 1/3^rd the cost of the shredded LE’s charges, even with the large and expensive data digitization sub-project. It pays to vet LEs thoroughly, even ostensibly experienced ones, as OFCCP and my client both found out the hard way. Experience does not necessarily always equate to competence: it could be much experience doing things incorrectly.

Practice Tip 2: Teach corporate managers how to properly invoke the Attorney-Client Privilege. The lawyers cannot invoke the privilege. The client company must do that, even with in-house counsel, to seek counsel to lower the legal risk to the company. And engage the lawyer in a writing. It is ALWAYS nice to have a letter or an e-mail with a date (and time, even better) identifying the precise moment when the Privilege first attached. It is SOMETIMES critical to know whether the Attorney-Client Privilege “cone of silence” came dropping down at 9:00 am or 4:00 pm on the day the company invoked the Privilege to know whether potentially sensitive or problematic analyses published at 3:00 pm are protected.

Except for the one blooper I identified above, OFCCP’s recitation of the Attorney-Client and Work-Product Doctrine is well considered, professionally written and worth reading.

Happy Observation:

Here is language which leads me to believe the OFCCP is finally maturing and changing in incremental steps its views as to who/what is responsible for the so-called “gender pay gap” between ALL women and ALL men (even though the so-called “gender pay gap” is none of the agency’s concern and it has no mission or authority to address it. Yes, really. Pay discrimination, yes. Pay gap, no. And OFCCP would not want to limit itself to a “gender” anything, at any rate. OFCCP’s mandate is broader and extends to race and national origin, as well, of course.

Here is the evidence I found heartening as copied from Section 5 (Background) on page one of the new OFCCP Directive:

“OFCCP is also committed to facilitating a transparent and efficient process to identify and remove barriers to opportunity, including pay discrimination and occupational segregation. Hiring barriers, steering, and assignment patterns can contribute to occupational segregation, which is a driver of persistent pay disparities.”

The OFCCP is finally catching on to the primary driver of the so-called “pay gap”: “occupational segregation” as a driver for the so-called gender “pay gap” between ALL women (as a whole) and ALL men (as a whole). It used to be OFCCP’s (and the EEOC’s) wrongly held view that the employers were EXCLUSIVELY responsible for the so-called pay gap because they paid similarly situated male and female employees differing amounts of pay to perform the same jobs. But employers and contractors, familiar with how they in fact pay their employees, knew, and know now that is not true. The simplistic pay gap methodology measures the pay of Airline Pilots against the pay of Flight Attendants…who are not “similarly situated” employees, as but one example to illustrate the larger analytical difficulty with OFCCP showing any concern to address that component of the so-called “gender pay gap.” Concerning itself with compensation discrimination, and whether employers are steering employees differentially to lower paying jobs than are otherwise available and of interest to “Applicants” and/or refusing to hire true “Applicants” based on a protected status is, of course, the OFCCP’s mandate.

At the same time, employers have been aware that there have been at best only aberrational pay differences at some companies between men and women who were similarly situated. Everybody knows, too, there are typically momentary pay gaps among specific men and specific women and/or other protected group employees following quickly accomplished mergers until HR can level pay across the two merged companies. But few in the employer/contractor community believe there is “widespread” compensation discrimination in America today. Pam Coukos, the lead Obama OFCCP champion of pay discrimination investigations and prosecutions, confirmed that despite 8 years of attacking it hard, the Obama OFCCP had not, in fact, found widespread pay discrimination among the federal government contracting workforces.

EEOC and OFCCP statistics also bear out the conclusion of companies that it is occupational segregation often driven by self-choice which has played by far the greatest role in the so-called gender pay gap.

For example, at the EEOC, Equal Pay Act claims total only a little over 1,000 per year of the typically 50,000 to 80,000 Charges filed each year (usually comprising only between 1.3% and 1.6% of EEOC’s annual Charge “inventory”). And, of those, the EEOC typically finds “probable cause” to believe an employer violated the Equal Pay Act only about 20% of the time (although EEOC data on that violation rate have not been recently available, or at least I cannot find them anymore). As an aside, I so wish the EEOC would also go back to being candid and calling its Charge “inventory” what it is, and what everybody knows it is: “backlog” …so we do not feel like the Commission is trying to spin us with marketing headlines and language, as it so often, and increasingly, seeks to do).

At the same time, OFCCP has found very little evidence historically or currently of pay discrimination or steering protected group employees differentially to lower paying jobs when other higher paying jobs in which the Applicant is interested and qualified to perform exist. This OFCCP’s lack of any appreciable number and value of findings of unlawful pay discrimination among federal contractors has occurred and is still unfolding even though the agency has made it the top discrimination law priority every year for the past 30 years (since the George H. W. Bush Administration: #41, the father). Indeed, it was in 1991 that OFCCP Director Cari Dominguez inaugurated “Glass Ceiling Audits” in the George H.W. Bush Administration which featured compensation analyses, quickly followed by OFCCP Director Shirley Wilcher in the Clinton Administration. Shirley upped the ante and in 1996 incorporated reviews of employee compensation into each and every OFCCP audit.

In the 30+ years since 1991, OFCCP has now conducted more than 150,000 Compliance Reviews of federal Government contractors. Over that lengthy span of time, the agency has found far less than ½ of one percent compensation violations in over 31 years, despite trying everything it could think of through three Republican and three Democrat presidential administrations to find and root out compensation discrimination. OFCCP has reviewed and blessed over at least two hundred million pay decisions federal government contractors have made in the last three decades. However, OFCCP has found fault with fewer than about one out of a million contractor pay decisions.

Now, the debate between the employer/contractor community and the federal agencies should shift to a topic as to which OFCCP (and the EEOC) have not yet acceded: the view of employers/contractors that with rare exception the choice of jobs Applicants seek is governed by their personal choices, training, education, and experience. That view is now more fiercely held by employers and contractors following the exploding economy before the COVID-19 pandemic. During the last years of the Obama Administration and during the entire Trump Administration and to the present there were DAILY almost 100,000 open and available jobs going unfilled and between 3 and 6 million such jobs going unfilled annually (depending on year). Since the onset of the COVID-19 pandemic, employee-starved employers know there are now typically almost two million more jobs per year going unfilled as “Help Wanted” ads and cash sign-on bonuses abound and appear on every business block in every metropolis, city, town, village, and burg in the country. Employees can apply for any ten thousand different types of jobs, often with little or no competition. So, why aren’t minorities and women filling those currently open and available jobs which are just going begging to be filled?

And what did OFCCP find when it started auditing federal contractors closely for steering claims? OFCCP has found almost no “steering claims”…a half dozen alleged at best over the years. Rather, OFCCP found only a handful of employers hiring for large volumes of not so pleasant production line heavy-labor jobs with Applicants changing their minds about which of several different jobs to take in the middle of interviews. Documentation of these in-progress preference choices was sometimes poor as overwhelmed HR departments and Talent Acquisition managers fought to just keep up with the flow of Applicants for these high volume/rapid-turnover “Evergreen” jobs. So, a half dozen federal contractors out of the thousands of OFCCP audits “copped a plea” to get rid of the OFCCP audit with their bad documentation case and get back to the difficult and never-ending business of putting “butts in seats.”

Most contractors share OFCCP’s objective: to ensure employees are not discriminated against in their pay based on a protected status. Most contractors nevertheless feel strongly, however, OFCCP is aiming its energy and arrows at the wrong target. Most feel as a hiring manager of a Silicon Valley company client of mine felt during the Internet Bubble: that he was chasing after and looking in vain for protected group member applicants who he could not convince to take the available open jobs. During the Bubble, it was fairly common for companies in the Silicon Valley to hang large (often 10-story) banners on the sides of their buildings visible from far-away freeways saying things like “HIRING: ALL JOBS.”

The Reverend Jessie Jackson and his Rainbow PUSH Coalition came to visit my client’s high-tech company, among many others, in the heart of Silicon Valley in what must have been 1998. Reverend Jackson had sought an invitation and meeting stating his concern from Chicago that The Valley was not hiring enough African Americans into high-paying Tech jobs. After the CEO of my client company and my client contact, the senior HR Manager-Global, an African American, sat in their main conference room and listened to Reverend Jackson and his Coalition partners, my HR Manager client calmly reached into his large brief case under the conference room table and took out five open job requisitions, looked Reverend Jackson right in the eyes and handed them across the table to him saying: if you can get applicants to fill these jobs, Reverend Jackson, I will hire the candidates and pay you the hiring commission I would otherwise pay my outside recruiters to find somebody to fill these jobs.

As Reverend Jackson inhaled that information, while apparently realizing this was a genuine and sincere offer, my client then reached under the conference room table again and brought up his entire brief case this time. He then removed from his case an additional one hundred (exactly) open job requisitions and pushed the large stack across the table to Reverend Jackson. My client accompanied his delivery of this second batch of requisitions with the comment that if the Reverend could fill those jobs, too, he would be very obliged, especially since all the requisitions in the stack of one hundred had been open for 60 or more days. And my client further explained that he had MANY more open requisitions and that there would likely be 5-10 new open job requisitions in the morning, so the Reverend ought to get to work on these open reqs right away.

Reverend Jackson had the same experience across the Silicon Valley for the next two days and left the Valley without headlines. He understood. He got it. He saw what was happening down on the ground. Employers were not steering away from protected group members: rather employers were steering towards protected group Members, but could not find nearly enough interested, let alone qualified persons, to fill their open reqs. Yes, pipeline is a major problem in thousands of job titles in America. (By the way, nothing has changed in the ensuing almost 25 years since Reverend Jackson’s visit to Silicon Valley. Google and Apple often have 2,000 to 3,000 thousand jobs open per month, Microsoft, and Facebook about the same; LinkedIn maybe half that; who knows with Salesforce…and on and on and on.) J.B. Hunt, one of the country’s largest interstate trucking companies located in northeast Arkansas, would probably hire the next 1,000 women with Commercial Drivers Licenses applying for over-the road truck driving jobs if they were out there to hire. Amazon has permanent job listings for OTR and inner-city truck driver jobs, always eager to add to its army of 115,000 existing driver jobs. And the list of employers and large numbers of available jobs just goes on and on. Have you seen an Amazon, Fed Ex, or UPS female truck driver delivery agent lately? They exist, but nowhere near to either their proportion to their statistical presence in society or in the workforce as a whole, even as tens of thousands of these jobs remain open and available.

Allegations of job steering, and employer-induced job segregation are not going to go far with employers and contractors which are often hiring for virtually every job they staff while giving the candidate the benefit of the doubt about his or her qualifications and experience to fill the job. Contractors know better than to accept these generalized allegations of steering and of differential compensation. OFCCP’s last 100,000 audits of federal contractors alone, in effect one of the largest cross-sectional longitudinal studies of hiring in America, proves convincingly the contractors’ point of view given the paucity of OFCCP findings on unlawful pay, unlawful failure to hire and unlawful steering to back up the agency’s claims that it is contractors which are at fault for the so-called “gender pay gap.” With only an exceedingly small number and very tiny percentage of OFCCP audits even making steering and/or unlawful differential compensation claims, let alone entering into Conciliation Agreements resolving such claims, OFCCP’s accusations against contractors ring hollow. These hollow claims in fact undermine the agency’s credibility in the contractor community and diminish the deference which contractors once extended to OFCCP making the agency’s work now more difficult for its Compliance Officers to undertake. Waiving fingers in federal contractor faces also diminishes the partnership the contractor community has been trying to foster with OFCCP for decades.

It is time for candid discussion, not mouthing marketing themes tailored to political and societal arguments of the day. Maybe the discussion could dial back to an early idea of the Nixon Administration which OFCCP removed from its Rules in 2000: the notion that contractors had a role to play to help “create availability”—the highest state of the art of “Affirmative Action.” For starters, maybe the discussion should turn to what federal contractors might exercise their discretion to do to support early childhood and middle school education in STEM, particularly in inner-city schools? (It’s typically over for students interested in engineering jobs by the seventh or eighth grade if the building blocks have not been in place since grade school).

Or perhaps, contractors should discuss sponsoring a greater number of meaningful internships leading to hire in not only professional jobs but also in technical and craft positions? Or how about apprenticeships with guaranteed offers of employment as the prize for the student’s journey? (Monsanto Corporation did this several years ago as an Affirmative Action effort to increase the number of women in a high-paying craft job: a combined journeyman plumber/electrician/welder/maintenance position. Monsanto succeeded in doubling the paltry 4% availability of women qualified to do the job at its rock plant in the wilds of Idaho which created the minerals for its Roundup product). Federal contractors could affect the conditions and barriers which cause the “gender” and “minority” pay gaps which precede an Applicant’s decision not to apply for higher-paid non-traditional technical, skilled and craft positions. What is stopping you?

Have you tried to hire a carpenter lately? This is one profession suffering its greatest recorded shortage of employees in history. Or what about welders? Most of us do not ever have need to hire a welder, but one of my clients last year turned down a $1B+ bridge and highway construction contract because it was 400 welders short of the number of welders the company would have needed to have accepted the work. It’s time to start a different kind of “Affirmative Action” conversation and develop different hiring strategies designed to think long-haul and cure the deficiencies public school education programs are leaving to employers nationwide.