OFCCP Week in Review, Special EditionThis is a special edition of the DirectEmployers Week In Review covering the three days of the DirectEmployers 2022 Annual Meeting (DEAMcon22) for Members and Non-Members held this year at the Park Hyatt Aviara Resort, Golf Club & Spa in sunny Carlsbad, California just north of San Diego. For this special event and this Special Edition, we asked Cynthia Hackerott, the former OFCCP and EEOC compliance reporter for CCH and thereafter Thomson Reuters, to join the conference, attend as many presentations as she could each day and write them up for this Special Edition. Because of concurrent sessions, Cyndi could not cover every session, but her report gives you a robust smattering of each day’s presentations.

We hope you enjoy this tour of the DEAMcon22 conference and vicariously absorb some of the rich content of what many describe as the country’s most diverse and educational EEO meeting each year. And with warm thanks to Cyndi for joining our WIR team for this special event! Explore key sessions on day three:

The final day of DEAMcon22 kicked off on a high note as Candee Chambers called the day to order, which began with a lively recap video of day one and day two of the conference – including footage from the Califor-neon Nights Party.

Panel Discusses Neurodiversity In The Workplace & Breaking Down Barriers

The final day of the conference started with a panel discussion, moderated by DE Executive Director Candee Chambers, on the significant talent opportunity of individuals who identify as Autistic or neurodivergent.

”Even if you don’t know it, you have a neurodiverse workforce. We all have different brains,” noted Attorney and Advocate Haley Moss. Joining Haley on the panel were: Susanne Bruyère, Professor of Disability Studies at Cornell University and the Director of the Yang-Tan Institute on Employment and Disability; Matthew Saleh, Research Associate at Cornell’s Yang-Tan Institute on Employment and Disability; and Tina Schmitt, Talent Acquisition and Retention Manager and Project SEARCH Business Liaison at the Kennedy Krieger Institute.

Neurodiversity panel takes Q&A from the stageCandee asked what the biggest knowledge barriers were to taking advantage of this talent opportunity. Tina replied: “starting out with an executive champion” and the ability to talk to hiring managers. “HR really has to be their support system,” she emphasized. “Over 85 percent of people with autism are unemployed. There is something incredibly wrong with that picture.”

Responding to the question of, “How do you suggest that we help other employees understand?” Haley offered that she describes neurodiversity as working with people who are bilingual when she slips up with the “language barrier.”

“A lot of us are engaging in normative assumptions,” Matthew observed. “We really want to connect [hiring criteria] to what is important to the job.”

“Which means you need to recheck your job descriptions,” Haley added. Too often, the hiring process tests not so much who is good at the job, but who is good at this specific process, she noted.

Being accommodating is not just a legal process, Matthew stated. “It is a way of being and existing.”

If you give the message at the top of the organization that “this is part of our business initiative,” it sets up the mindset, Susanne stated. Matthew cited a study that found a career webpage is one of the most cost-effective ways to show people your message. Furthermore, the best websites go beyond just EEO statements at the bottom of the page and don’t use just one stock image. “You want real people,” he advised.

OFCCP has recommended that the CEO, and other executives, do videos, Candee pointed out. Susanne immediately confirmed that when employers do that, they hire significantly more people from this talent group.

Tina said that Project Search is the biggest program on which she has worked. It involves workers rotating through jobs to get a good match. Her personal favorite is a job audition rather than traditional interviews. “We might walk around and show them the people on the floor. We have to change those standardized practices,” she said.

“If companies have internships, they are six times more likely to hire persons with disabilities. Suzanne noted. “We can train like crazy, but we cannot forget to inform people.”

Candee noted that some organizations do not have people with disabilities on their board. “People just tend to think [diversity] is [limited to] race and gender.

She also pointed out that remote work can be an excellent accommodation. “You might want to think about how people are effected by going to the office; it doesn’t have to be a neurodivergent issue.”

However, Tina cautioned that “virtual interactions can also be  problematic in terms of neurodiversity.”

Mathew noted that disclosure to employers “is very complicated, but if you hire more diverse people, you will have them as mentors in your organization. “

Susanne reported that research shows people are more likely to disclose if they see evidence that the employer wants people with disabilities in their workforce.

When Candee asked for final words of advice, the responses were:

Tina: “Hire with your head and your heart.”

Haley: “Time to get comfortable with being uncomfortable.”

Matthew: “Interrogate your idea about what is ‘normal.’”

Suzanne: “Feel empowered because you are really in a position to make changes in your organization.”

Logo for Recruit Rooster featuring two back to back R's and one orange triangle on top and one yellow upside down yellow triangle on bottom Editor’s note: Recruit Rooster specializes in recruitment marketing, and developing career websites with accessibility and inclusive hiring in mind. The Recruit Rooster Creative Services Team can guide employers one step further by planning, filming, and producing recruitment videos that help bring an employment brand to life.

Keith Sonderling presents from the podiumEEOC Commissioner Sonderling Told DirectEmployers Annual Meeting Attendees The EEO-1 Component 2 Survey Will Soon Return

We covered EEOC Commissioner Keith Sonderling’s Keynote presentation at length last week in our Week In Review published Monday April 25, 2022 which you may find here.

HR Director Rises to the Challenge Of Implementing National HRIS At Decentralized Construction Company

Ashley Valenzuela-Ruesgen, Director of Human Resources at Hensel Phelps Construction Co shared how she successfully spearheaded the effort to move her employer — an 85-year-old construction company that previously never even had an HR department — from theory to implementation of a human resources information system (HRIS) on a national scale.

The employer, a U.S. Department of Defense contractor, had made the intentional decision for 85 years to not have an HR department. Yet, “[w]hat’s working today isn’t necessarily going to work for tomorrow,” she said.

Ashley Valenzuela-Ruesgen presents from the stageWhen the Board wanted her to fix their HRIS system, she set a goal to implement an end-to-end system. They started with an Applicant Tracking System, document control, reporting, compliance, recruiting, and onboarding. She talked to a total of fifteen vendors and asked her team and the Board their opinions.

One big challenge was the company’s decentralized organization. Because it did not have a Talent Acquisition function, they had over five hundred people in the recruiting function. Therefore, she had to take the Talent Acquisition Managers (TAMs) and bring them along. She recognized that she had to balance the autonomy of the company’s regions with the need for compliance consistency. Moreover, she was determined to prove that it wasn’t just a cost exercise.

She concluded her presentation by telling the audience to remember the following factors for success:  future envisioned state; change champions; executive sponsorship; process owners; business alignment; and “your why.”

Attorney Explains How To Lawfully Use Race & Gender In The Selection Process

Cara Crotty presents from the stage“Creativity and strategy can sometimes create unintended consequences from a legal standpoint,” cautioned attorney Cara Crotty (Partner – Affirmative Action/OFCCP Compliance Practice Group Chair at Constangy, Brooks, Smith & Prophete) in the final presentation of the conference, which addressed how employers may lawfully use race and gender in the selection process.

There are two rules sometimes cited in efforts to increase diversity. First, the Rooney Rule,  adopted by the NFL in 2003, is the policy that each team in the league consider minority applicants for head coach and upper-level coaching positions. Second, the Mansfield Rule, which was inspired by the Rooney rule and applies to law firms, legal departments, and companies, requiring them to consider protected groups for at least 30% of promotional opportunities.

Tension Between EEO and Affirmative Action

Yet, there is a tension between the legal requirement to make employment decisions that are not based on protected factors and the desire to ensure unrepresented groups are fully considered in the employment process. AAP Placement goals (41 CFR §60-2.16(e)(2)) do not provide the contractor with a justification to extend a preference to any individual, Cara noted. Likewise, the EEOC says in its Compliance Manual that employers cannot use race/gender in the selection process. Nevertheless, the U.S. Supreme Court ruled in United Steelworkers v Weber (1979) and Johnson v Transportation Agency, Santa Clara County (1987) that employers may develop voluntary AAPs in certain circumstances.

Legally Permissible Voluntary AAPs

Cara noted three lawful bases for voluntary AAPs. First, employers may take affirmative action if an analysis shows actual or potential adverse impact caused by existing or contemplated practices (29 CFR §1608.3(a)). Second, employers “may take affirmative action to correct the effects of prior discriminatory practices,” which “can be initially identified by a comparison between the employer’s work force, or a part thereof, and an appropriate segment of the labor force” (29 CFR §1608.3(b)). Third, “Because of historic restrictions by employers, labor organizations, and others, there are circumstances in which the available labor pool, particularly of qualified minorities and women, for employment or promotional opportunities is artificially limited” (29 CFR §1608.3(c)).

Under EEOC Guidelines, voluntary AAPs must contain three elements: (1) Reasonable self-analysis; (2) Reasonable basis for concluding action is appropriate; and (3) Reasonable action (29 CFR §1608.4). Moreover, voluntary affirmative action without a plan or program will not satisfy the EEOC guidelines. Such a plan must be a concerted and reasoned program, rather than a series of isolated events. In addition, employers will not receive the benefits of Guidelines and affirmative defense without the plan.

Cautionary Notes When Considering Voluntary AAPs

Cara then offered examples that satisfy the necessary criteria referenced above. She cautioned that voluntary AAPs should not contain: quotas; specific numerical objectives; specific dates for achievement; discharge of employees and replacement with covered persons; and an absolute bar.

Finally, Cara recommended that employers considering voluntary AAPs follow EEOC guidelines to the letter, and they must not forget to consider state and local laws.

That’s a wrap on day one of DEAMcon22! Want to discover additional incredible content shared at this year’s event? Dive into to day one and day two coverage.

 

Want to see yourself on the DEAMcon stage in 2023?

DEAMcon23 Call for Presenters | Deadline August 12, 2022

Day 3 Recap

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

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About the Guest Author

Cyndi Hackerott
Cyndi Hackerott
Cynthia L. Hackerott is a legal writer/analyst who is licensed to practice law in Illinois and Kansas. She formerly worked for Wolters Kluwer Law & Business as the lead editor of its publication of the OFCCP Federal Contract Compliance Manual. In addition, she was a contributing editor to Employment Law Daily, Employment Practices Guide, EEOC Compliance Manual and Employment Safety and Health Guide, among other publications. Prior to joining Wolters Kluwer, she practiced employment law in the state and federal courts in Chicago.
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