Women's Earnings:

Federal Agencies Should Better Monitor Their Performance in Enforcing Anti-Discrimination Laws

GAO-08-799: Published: Aug 11, 2008. Publicly Released: Sep 10, 2008.

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In 2003, GAO found that women, on average, earned 80 percent of what men earned in 2000 and workplace discrimination may be one contributing factor. The Equal Employment Opportunity Commission (EEOC) and the Department of Labor (Labor) enforce several laws intended to prevent gender pay discrimination. GAO examined (1) how EEOC enforces laws addressing gender pay disparities among private sector employers and provides outreach and what is known about its performance, and (2) how Labor enforces laws addressing gender pay disparities among federal contractors and provides outreach and what is known about its performance. GAO analyzed relevant laws, regulations, monitoring reports, and agency enforcement data and conducted interviews at the agencies' central offices and two field offices experienced in gender pay cases.

EEOC addresses gender pay discrimination primarily by responding to individual charges, initiating investigations, and conducting outreach, but the agency does not fully monitor gender pay enforcement efforts. EEOC prioritizes incoming charges of discrimination against employers that appear to merit further investigation, and GAO's analysis of EEOC data showed that charges of gender pay discrimination were prioritized for investigation more frequently than non-gender pay charges. EEOC collects detailed information on all its enforcement efforts and uses these data to monitor enforcement performance overall as well as by statute, including one statute dedicated to gender pay. However, EEOC does not monitor gender pay enforcement efforts under another statute that covers multiple discrimination topics and under which more than half of gender pay charges are filed. As a result, EEOC does not make complete use of available information to help identify trends related to gender pay cases, set agency priorities, or understand how its gender pay enforcement efforts are contributing to overall performance goals relative to other efforts. EEOC also conducts both fee-based and free outreach on a broad range of topics, which can include gender pay. EEOC monitors the number and type of free outreach activities and holds itself accountable for providing outreach to both employers and employees and obtaining high audience ratings on some fee-based outreach. Labor's Office of Federal Contract Compliance Programs (OFCCP) conducts compliance evaluations targeted to federal contractors based on whether they may be engaging in systemic discrimination, but efforts to monitor the performance of enforcement and outreach activities are limited. OFCCP uses a mathematical model to select contractors for review based on the likelihood of noncompliance, but it has not yet evaluated the model for how well it predicts systemic discrimination due to resource constraints. In addition, regulations require contractors to conduct a self-evaluation of their compensation systems to identify and address gender pay disparities. However, OFCCP's guidance on this is found in different source documents that are not cross-referenced, and its data system lacks a unique code to help the agency easily determine the extent to which contractors are complying with the self-evaluation requirement. While OFCCP collects enforcement data by type of discrimination and monitors enforcement performance overall, it does not monitor enforcement trends and performance outcomes regarding gender pay or other specific areas of discrimination. Even if it were to do so, questionable reliability of certain enforcement data undermines performance monitoring. As a result, OFCCP may have difficulty determining how best to prioritize its resources among the different types of discrimination it addresses. To increase awareness of anti-discrimination laws, OFCCP also conducts outreach to federal contractors on topics that include gender pay. OFCCP holds itself accountable for achieving a targeted number of events, but does not systematically gather recipient feedback and use it to measure the quality of its outreach efforts. In contrast, Labor's Women's Bureau, which also provides outreach to working women, sets performance targets and systematically measures its impact.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: EEOC has created a specialized report from its information technology system tracking charges of gender pay discrimination by statute, including the Equal Pay Act, Title VII, and other statutes, and has used this report to generate historical gender pay data dating from FY 1997. EEOC plans to continue generating this data each quarter and to use this information to track and respond to trends in gender pay enforcement. EEOC has also incorporated this information into its budget and performance planning. EEOC noted that having this information available helped it respond effectively when Title VII was amended by the Lilly Ledbetter Fair Pay Act in early 2009.

    Recommendation: To gauge how well EEOC is carrying out its responsibilities regarding gender pay discrimination, the Chair of the EEOC should devise a cost-effective method to improve its ability to monitor the performance of its gender pay enforcement efforts relative to other areas, using information already captured in its databases and supplementing information already reported.

    Agency Affected: Equal Employment Opportunity Commission

  2. Status: Closed - Implemented

    Comments: In 2008, OFCCP evaluated the Westat model in-house and found that it was not an effective means of selecting contractors that were more likely to have findings of non-compliance. In 2011, OFCCP contracted with IMPAQ International to create a new model based on more current OFCCP administrative data and EEO-1 survey data submitted by contractors (which includes the total number of employees by race, gender, ethnicity and occupational categories). Internal evaluations found this new model to be statistically significantly more predictive of non-compliance than either the Westat model or random chance. Additionally, according to OFCCP officials, the IMPAQ model will improve on two of the problems identified with the method used prior to the Westat model: identifying all contractors, and ensuring complete and reliable data. Previously, contractors that did not fill out the EEO-1 survey were not included in the selection pool. Now, the contractors are selected from the Federal Procurement Data System, a more complete listing of contractors. Furthermore, OFCCP has taken steps to improve the reliability of its administrative data, which forms an important part of the IMPAQ model.

    Recommendation: To strengthen OFCCP's enforcement and outreach efforts and gauge the performance of those efforts, the Secretary of Labor should direct the Director of OFCCP to evaluate the Westat mathematical model and incorporate lessons learned from the prior model to ensure contractors are appropriately being selected for compliance evaluations and to maximize limited enforcement resources.

    Agency Affected: Department of Labor

  3. Status: Closed - Not Implemented

    Comments: OFCCP did not create a unique code to document such non-compliance. Additionally, in 2006, OFCCP created voluntary standards that contractors could choose to follow when conducting their self-evaluations. However, we found that the guidance about the differences between the voluntary and mandatory self-evaluation requirements was confusing and outdated. To help remedy this, we recommended that OFCCP make its guidance about self-evaluations easier to find, both for contractors and its own employees. To date, OFCCP has begun the process of rescinding the voluntary guidelines. When this process is complete, it should lessen the confusion. However, OFCCP has not taken any steps to update or clarify its guidance for the mandatory self-evaluation that contractors must undertake to satisfy their affirmative action requirements. For this reason, and because there is still no discrete violation code for failure to complete a compensation self-evaluation, this recommendation has not been implemented.

    Recommendation: To strengthen OFCCP's enforcement and outreach efforts and gauge the performance of those efforts, the Secretary of Labor should direct the Director of OFCCP to improve oversight of compliance evaluations for contractors by establishing linkages between relevant and current guidance on conducting compensation self-evaluations and devising a unique violation code to document any non-compliance with the compensation selfevaluation requirement.

    Agency Affected: Department of Labor

  4. Status: Closed - Implemented

    Comments: The Office of Federal Contract Compliance Programs (OFCCP) awarded a contract for its new data system, to be called the Federal Contract Compliance System (FCCS), in FY 2011. According to OFCCP documents, the new system will modernize agency data collection and methods to include standardized and configurable workflows, business rules for quality management, case management data validation, alerts and notifications, document management, records management, robust reporting, security, privacy, and accountability safeguards. Additionally, OFCCP plans to make efforts to correct inaccuracies and enter missing fields in its current data. They will also address inconsistencies in data entry and accuracy via enhanced data integrity reporting, data quality reviews, and by holding employees and supervisors accountable for maintaining data integrity through their performance reviews. OFCCP expects FCCS to begin operation in late 2012.

    Recommendation: To strengthen OFCCP's enforcement and outreach efforts and gauge the performance of those efforts, the Secretary of Labor should direct the Director of OFCCP to ensure the planned new data system incorporates standardized data entry instructions and adequate internal controls to screen for erroneous, inconsistent, or missing data, and ensures violation codes are correctly entered.

    Agency Affected: Department of Labor

  5. Status: Closed - Implemented

    Comments: Since the time of our review, the Office of Federal Contract Compliance Programs (OFCCP) has greatly increased its focus on compensation, although it does not monitor these efforts by discrimination factors such as gender or race. In its FY 2012 operating plan, OFCCP identified two performance goals that it would use to monitor compensation enforcement efforts on a quarterly basis: increases in (1) the number of notices of violations and (2) the number of conciliation agreements with findings of pay discrimination. While neither of these is specific to gender, over half of OFCCP's pay discrimination cases involve gender, with the rest involving race. In addition, OFCCP created new compensation evaluation guidelines for its compliance officers in 2012, which aim to improve the quality and depth of its compensation evaluations. They further plan to have the national office review a sample of completed compensation assessments to ensure that the new guidance is properly implemented, to see whether it is clear and effective in practice, and to address deficiencies immediately through revision and/or additional training and tools. Finally, at the end of each quarter, OFCCP will prepare a qualitative review, which will assess the extent to which its compensation evaluations address systemic issues and identify any gaps in training or implementation.

    Recommendation: To strengthen OFCCP's enforcement and outreach efforts and gauge the performance of those efforts, the Secretary of Labor should direct the Director of OFCCP to develop a cost-effective means for monitoring performance of gender pay enforcement efforts relative to other areas, using information generally already captured in existing databases, once determined reliable.

    Agency Affected: Department of Labor

  6. Status: Closed - Implemented

    Comments: According to Labor, the Office of Federal Contract Compliance (OFCCP) developed a feedback form and began distributing it to contractors receiving compliance and technical assistance in FY 2009. Analysis of this feedback was included in OFCCP's semi-annual Compliance Assistance Plan beginning March 31, 2009. Additionally, from September 2009 to June 2010, OFCCP sent feedback surveys to over 9,000 webinar participants, 40 percent of whom returned the surveys. Labor reports that OFCCP used the feedback to plan future technical assistance.

    Recommendation: To strengthen OFCCP's enforcement and outreach efforts and gauge the performance of those efforts, the Secretary of Labor should direct the Director of OFCCP to devise a method for systematically collecting feedback from recipients of outreach and technical assistance and using this information to measure and monitor outreach performance.

    Agency Affected: Department of Labor


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