National Association of Government Contractors

Contractors Entitled to See Compliance Review Data

Recently, an Administrative Law Judge (ALJ) issued an important decision for Oracle America, Inc. against the Office of Federal Contract Compliance Programs requiring the agency to respond to Oracle's request to know what factual and statistical the OFCCP's has the would support allegations that the company discriminated in its pay and hiring practices -- the ALJ agreed the information should be shared.

The decision arose out of a compliance review, after which the OFCCP filed a January 2017 administrative complaint against Oracle alleging pay disparities among blacks, women and Asians within three of Oracle's business lines at its California headquarters and that the company favored Asian applicants for some jobs.

Oracle denied the charges and pursued its defense though the administrative hearing process. When OFCCP denied Oracle's reasonable discovery requests, Oracle filed a motion with the ALJ seeking an order compelling the agency to provide responsive information in its possession that formed the basis for its allegations – namely, the underlying statistical analyses and other evidence of discrimination gathered during the compliance review. The OFCCP, in accordance with its usual tactics, opposed Oracle's motion.

The ALJ agreed that Oracle was entitled to discover the information -- to the extent OFCCP relied upon it in filing the complaint.

This decision was significant for federal contractors because the OFCCP typically does not disclose to target contractors its internal data and evaluations formed during, and possibly before, a compliance review claiming that the information is protected and privileged.

This creates a heavy burden for contractors seeking to comply with their legal obligations, respond to a notice of violation or defend against a complaint alleging that their employment practices were statistically shown to have a discriminatory impact on a class or classes of individuals. Put simply, contractors are often fighting blind.

To be sure, this is only one ALJ ruling early in the litigation on an issue that ultimately could be reviewed on appeal. Nevertheless, requiring the government agency to provide, at least at the discovery stage, the factual basis for its determinations is a welcome development in ensuring a fairer process.

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