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OFCCP Week In Review: April 2022 #4 | DirectEmployers Association

Friday, April 22, 2022: EEOC Commissioner Sonderling Told DirectEmployers Annual Meeting Attendees The EEO-1 Component 2 Survey Will Soon Return

“Watch out, it is coming. Talk to your bosses,” EEOC Commissioner Keith Sonderling said regarding the Commission’s/Joint Reporting Committee’s intent to again collect the EEO-1 Survey Component 2 data. The Trump Administration discontinued the controversial pay data reporting requirement which the Obama Administration had added to the annual EEO-1 Survey. In September 2021, the OFCCP published a notice in the Federal Register (86 FR 49354) announcing its intent to “devote further agency resources to evaluate the [EEO-1 Component 2] data’s utility because the joint collection [with the EEOC] and analysis of compensation data could improve OFCCP’s ability to efficiently and effectively investigate potential pay discrimination.” [See WIR for September 7, 2021 for more background]

Currently a panel at the National Academies of Sciences, Engineering, and Medicine (NASEM) is evaluating the quality of data collected from the short-lived previous Component 2 requirement. The panel intends to issue a report to the EEOC to assess the data’s “quality and usefulness for different uses” with conclusions and recommendations.

“We hope to see what the data shows,” Sonderling said. Nevertheless, “I don’t think it matters what the report says. It’s become so political,” Sonderling observed.

DE Executive Director Candee Chambers also asked why the EEOC is getting involved in affirmative action Webinars with the OFCCP.

“Because the lines are being blurred,” Sonderling responded. “The EEOC is now very much involved with OFCCP matters.”

Editor’s Note: Is this yet another trail sign of the long-running discussion in the Congress and in virtually every White House about why there are two federal civil rights agencies and whether OFCCP should be merged into the EEOC?

Ms. Chambers also assured the audience that when the Component 2 collection goes to rulemaking, DE will comment.

Democrats will soon become the majority on the Commission

Recently, President Biden nominated attorney Kalpana Kotaga to replace Janet Dhillon, whose term on the Commission expires on July 1, 2022. Among other notable qualifications, Kotaga is perhaps best known as a co-author of the “Inclusion Rider,” a legal template some actors require to be in their performance contracts to require diversity in the acting crew. Once the Senate confirms Ms. Kotaga, Democrats will have a 3-2 majority of the Commission, Sonderling noted.

The number of charges filed annually with the EEOC is down – and that’s a good thing, Sonderling reported. The number of Charges filed with the EEOC in FY 2021 was down in comparison to the previous year by about 9% as we reported here. He added that he thinks it is a “good thing” because he believes that “#MeToo awareness” was a significant factor in the decline.

Artificial Intelligence

Regarding the use of Artificial Intelligence (AI) tools, Sonderling pointed out that “the question is not whether but when for using AI.” Employers must consider how to use AI while still complying with the longstanding civil rights obligations, he said. Because the Commission currently has no guidance on how to test AI’s impact on EEO concerns or suggestions for best practices, the Commission last year launched an “Artificial Intelligence and Algorithmic Fairness Initiative.”

As HR professionals, you are being sold left and right,” Sonderling observed. “A lot of these vendors are Silicon Valley engineers who believe robots are going to handle everything.” Consequently, AI “is being sold as the cure all,” with claims that computers cannot discriminate, he added.

While AI has significant benefits – such as sifting through resumes and helping organizations identify their current employees’ best skills – it also has drawbacks, Sonderling noted. In some instances, AI could eliminate some bias, but it could create possible disparate impact far greater than what one individual could do, he explained. AI can be used to intentionally discriminate as well and it creates a trail, he cautioned.

These drawbacks could be particularly egregious as to workers with disabilities. “We are seeing HR replaced by a chat box, which could prevent employees engaging in the interactive process,” Sonderling said. “There are some areas where a human has to be there, especially when it comes to disabilities.” If vendors cannot answer basic questions, such as how their products protect against disparate impact, they are going to wind up with some very significant problems, he warned.


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