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Barack Obama, The OFCCP, and The Presidency

By Bryan Johanson, August 27, 2008

Note: this article has raised some controversy. Feel free to comment on Lou's Recruiters Roundtable blog.

It seems that an increasing number of our clients are undergoing frequent, and in some cases constant, audits by the OFCCP regarding their hiring practices. The audits are costly, nerve-wracking, time consuming, and often monopolize the entire focus of the department under scrutiny. This week the Democratic National Convention roared into my newly adopted home town of Denver, CO. It's quite the spectacle. The streets are closed, security has never been tighter, and the excitement is hard to contain. Michelle Obama hit a home run on Monday night with her speech. Edward Kennedy never looked statelier. Hillary Clinton took the podium on Tuesday, and Thursday we'll hear from the star of the show, Barack Obama himself. No matter what your political persuasion (and I won't reveal mine in this article), I can't help feeling a bit proud of our country for selecting a diverse candidate for the Democratic nominee for President of the United States.

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Then my somewhat twisted mind asked the question, "What would an OFCCP audit reveal about our process for selecting candidates for the presidency of the United States?" Surely this year of all election years would pass an OFCCP audit with flying colors, wouldn't it? After all, the highest office in the land is finally in reach of one of our African American citizens, and I for one am proud that at least on the surface we're starting to put some of our old bigotries and biases aside to consider all contenders. Hillary's accomplishments are no less important. Never has a woman come so close to earning the presidential nomination and her efforts were truly historic. This important change in the political climate is at some level a reflection of the many individual contests waged each day as America strives to become more color and gender blind in its hiring practices.

Seeing the forest through the trees

However, even in this historic year the actual numbers that the OFCCP would use to evaluate the process would absolutely reveal severe, and in some cases insurmountable, adverse impact in the process of selecting nominees for the presidency. I am convinced that the Democrats would have to enter into a conciliatory agreement with the OFCCP based on their process and the Republicans would probably be paying some significant fines based on their performance this year. While it's true the overall field was more diverse than in past contests, it was only diverse on two dimensions. What about the other important diverse populations tracked by the OFCCP including African American Women, Asian Americans, Native Americans, and Latinos, not to mention the fact that almost all candidates come from the highest echelon of top income earners in the country? Are rich people the only ones smart enough to run the country? Surely the candidate pool should and could have been more diverse. Thanks to John McCain at least we've eliminated ageism as a potential problem as he turned 72 last week. (We'll see in November if the electorate remains as open mined about that issue during the actual election.) At some point, if you slice the data narrowly enough, you will eventually have to hire someone at the exclusion of all the other protected classes, and it's easy in that environment to claim racism or sexism or any other type of ism you choose.

I wholly support the color/gender blind approach to hiring. While progress in the area of fair hiring practices is desirable, it's also important to remember that race, religion, color, gender, or any other physical or ethnic distinction is not a sufficient condition for electing a president, or making a hiring decision for that matter. Color blind? Yes. Gender neutral? Absolutely. But the overriding consideration for hiring any person for any job should be the person's ability to perform that job with distinction, not what their physical characteristics are. One thing to remember is that the OFCCP has only one mandate - to ensure fair and equal employment opportunities and to eliminate discrimination. Their mandate is not to ensure that you make a great hire. "Quality of hire" is not part of their vocabulary. They don't write about it and they don't report on it and they don't care about it. They don't care if turnover is reduced or if productivity is increased or if earnings go up. That's not their mission, but it should be yours.

How to survive an OFCCP audit

Part of the training we provide hiring managers and recruiters is designed to help our clients put their biases aside and suspend their judgment on candidates for at least 30 minutes during a face-to-face interview. The idea here is to use the interview to gather data and qualify the candidate for the job. We don't want our clients to be fooled by either a positive or negative first impression. It's been our experience that 50% of all hiring errors can be eliminated if hiring managers and recruiters will religiously adhere to this simple rule. However, it's become increasingly clear that corporations are living in fear of the OFCCP. Even the slightest indication of adverse impact toward any one cultural or ethnic group causes panic and the need to find a scapegoat. Even if the hiring practices are sound and producing better results, many are tempted to alter sound hiring approaches by lowering standards to ensure that nobody is left out. The effects are costly. So whether you are already under a conciliatory agreement with the OFCCP, just looking internally at your own data and noticing some impact, or you're a federal contractor about to be audited, take heart. Below are a few rational approaches for surviving an audit:

Don't act out of fear. This is a process not an event. If there truly is adverse impact, it is attributable to something. Don't throw out your whole process because you think it might cause adverse impact. Don't act until you absolutely understand the root cause. You must approach this process with an open mind.

Double-check the numbers. I was an economics major and took multiple high-level stats classes in college. My first professor introduced the topic of statistics with the saying, "There are lies, damn lies, and statistics!" Don't be fooled by the numbers. Understand what they mean and how they were derived. The numbers only identify problems, but generally they don't prove what caused them; they can be misleading.

Don't eliminate important qualifications for your positions. This is absolutely not the answer! The job is the job. Never compromise on qualifications that are essential to job success. Make sure the qualifications are relevant to job performance and then enforce them evenly and fairly with all candidates.

Do evaluate your sourcing channels. Has your sourcing changed? Do you need to put more effort into creating a diverse candidate pool? Should diverse candidates who meet all the qualifications be given special priority? Is there something in your process that systematically excludes good diverse candidates?

Keep an open mind. Last week we had an extensive call with one client about the possibility of adverse impact within their organization. As we reviewed the data and brainstormed it was clear that there were many possible explanations and multiple potential causes, each of which had to be explored and vetted before jumping to any conclusion. Here are some of the questions we asked:

There are hundreds of sound reasons for why there might be adverse impact in a hiring process - all of which are explainable and reasonable and 100% addressable. The one knee-jerk reaction that must be avoided is to lower the standards to allow more people into the pool. The standards are there for a reason.

Do Measure your results. With one client who fully implemented Performance-based Hiring the data is very compelling. Thrity-, sixty-, and ninety-day turnover was reduced by 67%. The speed at which applicants in their call centers became productive was also dramatically better. The quality of candidates based on the observations of both the recruiting and hiring manager evaluations was much better. All the numbers were good, but in some locations there was some adverse impact. In these cases you have to make sure the data is good and then justify that your process is indeed unbiased. Don't trust the number. Often the reporting isn't as good as you might think it is.

While the OFCCP scrutinizes every detail, let's not throw the baby out with the bathwater. We should celebrate the diversity of our country and the fact that we've made some major improvements in the area of diversity hiring (and electing!). It's never going to be perfect, but certainly our current performance isn't cause for a conciliatory agreement. We are moving in the right direction, we've certainly made a good faith effort, and that should be cause enough for hope and celebration.

If you have any comments or want to share your experience with the OFCCP, please email me directly at bryan@adlerconcepts.com.

Happy recruiting,
Bryan Johanson