Do Job Descriptions Really Matter in an OFCCP Compliance Review?
The Office of Federal Contract Compliance Programs (OFCCP) does not require that employers create written job descriptions for positions within their companies; however, well-written job descriptions can play a vital role before and during an OFCCP compliance review.
An OFCCP compliance review is initiated by a company’s receipt of a scheduling letter from the agency. The scheduling letter’s Itemized Listing requires the company to provide, within 30 days (as part of the desk audit response), information on the “most recent assessment of physical and mental qualifications . . . including the date the assessment was performed, any actions taken or changes made as a result of the assessment, and the date of the next scheduled assessment.” This requirement arises from 41 C.F.R. sections 60-300.44(c) and 60-741.44(c), which require covered federal contractors to establish schedules to periodically analyze the physical and/or mental job qualifications for positions. Such job qualifications are typically found in job descriptions and each physical and/or mental job qualification required for a position must be shown to be job-related, as well as consistent with business necessity.
In the course of a compliance review, OFCCP also sends the employer supplemental data requests, which may include a request for job descriptions. Depending on the issues presented in the compliance review, job descriptions can be critical to establishing the employer’s defense to a claim of discrimination. For example:
- OFCCP compares the data on the race and gender of applicants to the data on the race and gender of those who were hired to determine whether statistically significant selection disparities exist. As part of this exercise, OFCCP will often combine applicant flow data for different jobs without considering whether each job requires distinct minimum qualifications. OFCCP will assume that an applicant for one job is equally qualified and should be considered for other jobs that the agency views as similar. Job descriptions can establish that positions are materially different and that applicant and hires pools should not be aggregated together in a disparity analysis.
- In every compliance review, OFCCP focuses intently on compensation. Well-written, accurate job descriptions can capture the differences between jobs that justify pay differences for employees in those jobs. If the employer has written guidelines on how jobs are assigned to levels or job families, it is critically important that job descriptions reflect those differences and contain content that establishes the proper classification of jobs within the employer’s compensation structure. Generic job descriptions that do not differentiate in terms of essential functions or minimum objective qualifications will not aid (and often hinder) an employer in defending against claims of discrimination where employees in one job title are paid less than those in a different job title.
Be proactive by ensuring written job descriptions are reviewed regularly, are accurate, and identify all essential job functions and minimum qualifications.