1. One Step Forward, Two Steps Back (aka No Good Deed Goes Unpunished)
Patrick M. Nooren, Ph.D.
Executive Vice President. Biddle Consulting Group, Inc.

2. Contact Information
Patrick M. Nooren, Ph.D.
Biddle Consulting Group, Inc. |

3. Overview of Biddle Consulting Group, Inc.
Affirmative Action Plan (AAP) Consulting and Fulfillment
Thousands of AAPs developed each year
Audit and compliance assistance
myAAP™ Enterprise software
HR Assessments
AutoGOJA™ online job analysis system
TVAP™ test validation & analysis program
CritiCall™ pre-employment testing for 911 operators
TestGenius™ pre-employment testing for admin prof
Encounter™ Video Situational Assessments
Custom Test Development & Validation
“High stakes” test development
Validation studies in response/prevention to litigation
EEO Litigation Consulting /Expert Witness Services
Over 200+ cases in EEO/AA (both plaintiff and defense)
Focus on disparate impact/validation cases
Compensation Analysis
Proactive and litigation/enforcement pay equity studies
COMPare™ compensation analysis software
Publications/Books
EEO Insight™: Leading EEO Compliance Journal
Adverse Impact (3rd ed.) / Compensation (1st ed.)
BCG Institute for Workforce Development
7,500+ members
Free webinars, EEO resources/tools
Speaking and Training
Regular speakers on the national speaking circuit 3

4. Biddle Consulting Group Institute for Workforce Development (BCGi)
BCGi Memberships (free): ~7500+ members / 13,000+ HRCI credits to-date
Online community
Monthly webinars on EEO compliance topics
EEO Insight Journal (e-copy)
BCGi Platinum Membership ($299/yr)
Includes validation/compensation analysis books
EEO Tools including those needed to conduct AI/comp analyses
EEO Insight Journal (e-copy and hardcopy)
Access to the BCGi library of webinars, training materials, and much more …

5. Agenda Historical Overemphasis on Goals
Shooting Yourself in the Foot: Addressing Goals Solely Through Expanded Outreach/recruitment
Pulling on the Thread: Investigating the Real Reason(s) Behind Goals
One Step Forward, Two Steps Back: Compensation

6. Analyses Within an AAP
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

7. Analyses Within an AAP
Which analyses have historically driven OFCCP’s enforcement success?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

8. Analyses Within an AAP
Which analyses have historically driven OFCCP’s enforcement success?
ANSWER: Apps v Hires (disparity analyses)
OFCCP likes to focus on entry-level, blue collar jobs
Those positions tend to result in high numbers of applicants/hires
Analyzing high volume transactions increases the likelihood of statistically significant results
The “make-whole relief ($)” is larger when the sample sizes are big (i.e., more “bang for the buck”)

9. Analyses Within an AAP
Which analyses currently drive (the majority of) OFCCP’s enforcement success?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

10. Analyses Within an AAP
Which analyses currently drive (the majority of) OFCCP’s enforcement success?
ANSWER: Apps v Hires (disparity analyses)
Ever-shrinking budgets are driving the OFCCP to continue focusing on the “best bang for the buck.”
OFCCP has a (relatively) successful historical track record with Applicants v Hires analyses.
OFCCP 2019 Budget Justification outlines the #1 Agency priority being “High-Impact Systemic Compliance Evaluations”

11. Analyses Within an AAP
Which analyses comprise the fastest growing area of OFCCP’s enforcement success?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

12. Analyses Within an AAP 12

13. Analyses Within an AAP
Which analyses comprise the fastest growing area of OFCCP’s enforcement success?
Answer: Compensation Analyses
Equal pay is still a very relevant topic within the current Whitehouse Administration
OFCCP 2019 Budget Justification outlines the #1 Agency priority being “High-Impact Systemic Compliance Evaluations” and specifically calls out Systemic Pay Investigations

14. Analyses Within an AAP
Which analyses are often used as the foundation to a claim of unlawful discrimination?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

15. Analyses Within an AAP
Which analyses lead to the greatest legal exposure?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

16. Analyses Within an AAP
Which analyses have led to zero (0) conciliation agreements with substantive violations (i.e., make- whole relief, forced hiring decisions, back-pay)?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses

17. WHY? Analyses Within an AAP
Which analyses often garner the most contractor attention, action-oriented programs, and good-faith efforts (based on the results)?
Comparison of Incumbency to Availability (women/minorities/individuals with a disability)
Disparity Analyses (all gender/race, protected veterans)
Hires
Promotions
Terminations
Compensation Analyses
Because to most, “diversity” is what you see when you look around the office so just talk to the recruiters and get some more diverse people in here!
WHY?

18. Analyses Within an AAP
Which analyses often garner the most contractor attention, action-oriented programs, and good-faith efforts (based on the results)?
Answer: Comparisons of Incumbency to Availability (Goals)
Goals appear to be the “easiest” to fix
Employers tend to think that goals can/should be addressed through expanded outreach/recruitment.
"We are underrepresented in X, so all we need to do is cast a broader net!”

19. Current Representation
(+)
Hires
(-) Promotions From
(+) Promotions Into
Current Representation
Your current workforce is the result of all the different ways in which employees move into, within, and out of your organization!
(+)
Transfers Into
(-)
Transfers From
(-) Involuntary Terms
(-)
Voluntary Terms 19

20. Comparison of Incumbency to Availability
Snapshot Date: 12/31/2017
Comparison of Incumbency to Availability
Job Group: 7-03: Skilled Machine Operator
Test: Whole Person
Total Employees (#): 53
Total
Female
Minority
Employee (#) 9 48
Employee (%)
17.0
90.6
Availability (%) – Goal
34.9
73.9
Yes No
Additional Needed to Eliminate Problem Area (#)

21. Comparison of Incumbency to Availability
Can having goals be considered discrimination?
Only in very rare occasions (for example):
Failure to keep applicant records (sometimes referred to as an “adverse inference”—see 4D of the Guidelines)
Failure to collect/keep data on selection or promotional processes (also an “adverse inference”—see 4D of the Guidelines)
Discriminatory recruiting practice (e.g., Hazelwood School District v. United States)
Discriminatory reputation “chilled” or “discouraged” certain group members from applying
Promoting employees through “appointment only” process (rather than conducting promotional processes)
Invalid “Basic Qualifications”

22. Comparison of Incumbency to Availability
So why do most organizations focus so much time/effort on goals…and why do most think the best (or only) way to address goals is to make it a “recruitment” issue?

23. Addressing Goals Solely Through Outreach/Recruitment
Skips the entire question, “Why are we underutilized?”
Goes straight to a solution…that might be unrelated to the problem…and might be potentially harmful!
It’s like taking an x-ray, disregarding the results, and undergoing a treatment that may be unrelated to the injury/illness!

24. Addressing Goals Solely Through Outreach/Recruitment
Normal Circumstances (an example)
Selection Process
Passing Rate:
White (60.0%)
STD = 1.80
The difference in hiring rates is close to, but not, statistically significant.
Applicant Pool
50 White (50%)
50 Min. (50%)
Hires
30 White
20 Min.
Passing Rate:
Minority (40.0%)

25. Addressing Goals Solely Through Outreach/Recruitment
Expanded Outreach (an example)
Selection Process
Passing Rate:
White (60.0%)
STD = 4.72
The disparity got worse and we made ourselves a bigger target.
Applicant Pool
50 White (33.3%)
100 Min. (66.7%)
Hires
30 White
20 Min.
Passing Rate:
Minority (20.0%)

26. Addressing Goals Solely Through Outreach/Recruitment
Expanded Outreach (an example)
Selection Process
Passing Rate:
White (50.0%)
STD = 2.95
We helped to address the goal, but the disparity got worse and we made ourselves a bigger target.
Applicant Pool
50 White (33.3%)
100 Min. (66.7%)
Hires
25 White
25 Min.
Passing Rate:
Minority (25.0%)

27. Addressing Goals Solely Through Outreach/Recruitment
Executive Summary
Disparity Analyses
Job Group
Goal(s)
Hires
Promotions
Term. (All)
Fem
Min.
Fem.
Plan 1
1.1 - Exec/Sr. Off. and Mgrs N 6
2.43
1.2 – Entry Off. and Mgrs 1
1.68
2.3 - Other Professionals
5 - Admin Support Workers 7
3.23
2.98
3.63
What happens in JG 1.1 when you expand minority outreach/recruitment?
Likely move toward goal, but all else remaining the same, SD gets worse!
What you should do: look at the selection process! 27

28. Addressing Goals Solely Through Outreach/Recruitment
Executive Summary
Disparity Analyses
Job Group
Goal(s)
Hires
Promotions
Term. (All)
Fem
Min.
Fem.
Plan 1
1.1 - Exec/Sr. Off. and Mgrs N 6
2.43
1.2 – Entry Off. and Mgrs 1
1.68
2.3 - Other Professionals
5 - Admin Support Workers 7
3.23
2.98
2.23
What happens in JG 1.2 when you expand minority outreach/recruitment?
All else remaining the same, this (likely) becomes significant!
What you should do: look at the selection process! 28

29. Analyzing the Selection Process . . .
1. Applications Submitted
Hiring Process
Census Data
2. Application Review
Q1: How would you conduct an overall analysis?
Q2: How many steps are there in the process (subject to AI)?
Q3: How would you analyze the BQ’s for AI?
Q4: How would you analyze the pool of applications received (i.e., is the pool “tainted”)?
Applicant Pool
3. Invitation to Interview
4. Interview
5. Offer/Hire 29

30. Analyzing the Selection Process . . .
Male v. Female
Steps
Starting
Completing
Result
Overall (App vs. Hired)
Male - 100
Female - 100
Male - 50
Female - 30
2.81 SD
1. Basic Qualifications
Female -100
Male – 79
Female - 77
0.25 SD
2. Test
Male - 79
Male – 65
Female - 35
4.80 SD
3. Interview
Male - 65
Male – 60
Female - 32
0.18 SD
4. Final Selection
Male - 60
Male – 50
0.00 SD 30

31. Addressing Goals Solely Through Outreach/Recruitment
Expanded Outreach/Recruitment (in the absence of addressing the ‘real’ issues)
Did you improve outreach?
Yes
Did you
make progress toward goal? Yes (maybe)
Did you increase your legal exposure? Yes (!!)
This is like taking ibuprofen to address the symptoms, without addressing the actual illness!

32. Narrowing the Focus: Conducting an External “Barrier” Analysis
75% White
25% Minority vs
60% White
40% Minority
Applicant Data
External Availability Data (Census and/or AAP)
Applicant representation less than external availability - possibly an outreach/recruitment issue!
60% White
40% Minority vs
65% White
35% Minority
Applicant representation more than external availability – not likely an outreach/recruitment issue! 32

33. Narrowing the Focus: Conducting an External “Barrier” Analysis33

34. Narrowing the Focus: Conducting an Internal “Barrier” Promotions Analysis
Investigate those transactions that (typically) evade OFCCP scrutiny.
75% White
25% Minority vs
60% White
40% Minority
Ex. Mentoring Program
Minority representation within mentoring program is less than feeders - possibly evidence of barrier and/or glass ceiling.
Feeder Jobs
What other programs/processes can impact incumbency headcounts? 34

35. Addressing Goals Solely Through Outreach/Recruitment
Executive Summary
Disparity Analyses
Job Group
Goal(s)
Hires
Promotions
Term. (All)
Fem
Min.
Fem.
Plan 1
1.1 - Exec/Sr. Off. and Mgrs N 6
2.43
1.2 – Entry Off. and Mgrs 1
1.68
2.3 - Other Professionals
5 - Admin Support Workers 7
3.23
2.98 4
What happens in JG 5 when you expand minority outreach/recruitment?
(Likely) make progress toward goal, but not addressing the ‘real’ issue(s)!
What you should do: look at the promotion/termination process (and the work environment)! 35

36. Narrowing the Focus: Terminations
Significant disparities in retention rates? Yes!
Then ask “why”?
Voluntary Terminations
Glass ceiling: Only men/whites advance
Lack of opportunities: Only men/whites get invited into the mentoring program; only men/whites get the good roles (promotable positions); only men/whites get the good routes (sales)
Hostile work environment
The job was physically harder than I thought (invalid JA/BQs?)
Compensation disparities (perceived or real?)
Involuntary Terminations
Poor performance?
Reduction in Force (RIF)
Outright discrimination? Manager-specific issues? 36

37. Narrowing the Focus: Promotions
Significant disparities in promotion rates? Yes!
Then ask “why”?
Women/minorities not getting:
the right experience?
the right opportunities?
the right training/mentoring?
Outright discrimination? 37

38. Recommendations re Placement Goals
Understand that:
Goals are the starting line of the race your job is to understand what is driving the goal
Goals are not addressed solely via recruitment/hiring
Action-oriented programs (AOPs) are about more than just addressing numerical goals - don’t forget things like: updating job analyses, creating defensible BQs, amassing validity documentation for all steps in the process, cleaning ATS data/processes, etc., etc., etc., etc.
Be the investigator, ask the questions, find the ‘real’ issue…and then craft a solution that makes sense!
Failure to understand the above points will likely lead to wasted time and solutions that only serve to make the problems worse!

39. One Step Forward, Two Steps Back:
Compensation
Original Compensation – Problem!
Job Title
Data
Female
Male
Impacted Grp
Expected Pay
Diff ($)
Diff (%)
Recommended Action
Analyst
Count: GENDER 27 23
$50,986
$5,967
11.7%
Cohort & Regression
Avg: SALARY_ORIGINAL
$45,019
Avg: TIC
1.0
Post Adjustment – No Problem?!
Job Title
Data
Female
Male
Impacted Grp
Expected Pay
Diff ($)
Diff (%)
Recommended Action
Analyst
Count: GENDER 27 23
$50,986
$1,131
2.2%
Avg: SALARY_PostAdjustment
$49,854
Avg: TIC
1.0 39

40. One Step Forward, Two Steps Back:
Compensation
Females = Whites + Minority
GENDER
RACE
SALARY_ORIGINAL
Adjustment
SALARY_PostAdjustment
TIC
Job Title
FEMALE
WHITES
$49,717.48
$4,835.50
$54,552.99 1
Analyst
$49,482.40
$54,317.90
$47,928.46
$52,763.97
$47,904.29
$52,739.79
$47,475.55
$52,311.05
$47,447.27
$52,282.77
$47,230.45
$52,065.95
$46,279.18
$51,114.68
$45,926.03
$50,761.54
$45,398.75
$50,234.25
$45,356.34
$50,191.84
$45,263.83
$50,099.33
$45,203.31
$50,038.81
$44,734.76
$49,570.26
$44,728.02
$49,563.53
$44,699.26
$49,534.76
$44,687.34
$49,522.84
MINORITY
$44,624.28
$49,459.78
$44,446.78
$49,282.29
$44,126.86
$48,962.36
$44,010.06
$48,845.56
$44,004.31
$48,839.81
$42,969.81
$47,805.31
$42,917.30
$47,752.81
$40,623.98
$45,459.48
$39,598.37
$44,433.87
$38,722.89
$43,558.39 40

41. One Step Forward, Two Steps Back:
Compensation
Original Compensation – No Problem!
Job Title
Data
Minority
White
Impacted Grp
Expected Pay
Diff ($)
Diff (%)
Recommended Action
Analyst
Count: RACE 21 29
$48,666
$2,149
4.4%
Avg: SALARY_ORIGINAL
$46,517
Avg: TIC
1.0
Post Adjustment – Problem!
Job Title
Data
Minority
White
Impacted Grp
Expected Pay
Diff ($)
Diff (%)
Recommended Action
Analyst
Count: RACE 21 29
$51,501
$2,681
5.2%
Cohort & Regression
Avg: SALARY_PostAdjustment
$48,820
Avg: TIC
1.0 41

42. General Recommendations
Understand OFCCP’s priorities
Where does the OFCCP focus during Compliance Reviews?
Which analyses have the highest potential for (painful) exposure?
Do NOT be myopic in your review – analyses are connected?
If you consistently have the same goals every year, try to identify the root cause (e.g., lack of applicants, work environment, selection procedures, etc.)
There is a story behind every identified issue (and it’s your job to figure out what it is)!
Lastly, remember that every problem is not a nail, and every solution is not a hammer! 42

43. 43