The CO will obtain, review and analyze employment data, documents, policies, procedures, interview statements and observations throughout the review. An example of an observation that might be significant is the absence of women working on the loading dock. The CO will examine all the information to assess whether sufficient evidence exists to determine whether prohibited discrimination or other violation occurred during the review period. If either did occur, the CO must determine whether the discrimination or other violation is ongoing.
There are two broad types of evidence: direct evidence and circumstantial evidence. Direct evidence is evidence that, if true, directly proves a fact. For example, an email from the contractor’s director instructing supervisors not to hire women into certain jobs or a statement by a manager that “we don’t hire women here” would constitute direct evidence of discrimination against women. In contrast, circumstantial evidence is evidence that relies on an inference to prove a fact. For example, three standard deviations in the selection rates for similarly situated blacks and whites within the laborer job group is circumstantial evidence of discrimination against blacks. The statistics do not directly prove discrimination but can raise an inference of discrimination.
The CO may use direct evidence and circumstantial evidence, either alone or in combination, to prove discrimination. The key question when determining if the contractor has engaged in discrimination is assessing whether the evidence, direct or circumstantial or both, satisfies the appropriate burden of proof of discrimination.
OFCCP performs statistical analyses during its compliance evaluations and also seeks a variety of other types of nonstatistical evidence. Anecdotal evidence, a type of nonstatistical evidence, often supports statistical evidence of discrimination in systemic cases. Anecdotal evidence, which may be either direct or circumstantial, may consist of first-hand accounts of personal experiences with discrimination by the contractor at issue that brings “the cold numbers convincingly to life.” International Brotherhood of Teamsters v. United States, 41 U.S. 324, 339 (1977). Documents the contractor submits may contain anecdotal evidence, or COs may obtain anecdotal evidence from interviews with managers, employees, or applicants. In determining which cases to pursue, OFCCP will be less likely to pursue a matter where the statistical data are not corroborated by nonstatistical evidence of discrimination unless the statistical evidence is exceptionally strong. In some cases, OFCCP may find systemic discrimination based only on anecdotal evidence that directly supports a pattern or practice of discrimination.
For example, the company president sends an email to managers stating his concern that women are unable to lift heavy objects and that, if women are hired for stockroom positions, there will be a higher risk of on the job injuries that will impact the company’s profitability. This anecdotal evidence could support a finding of discrimination against women applicants for stockroom positions at that establishment.