OFCCP Draft Bias Rule Overrelies On Statistical Significance

By Joanna Colosimo and Lisa Harpe (February 25, 2020, 3:59 PM EST) -- The Office of Federal Contract Compliance Programs ended 2019 by releasing a notice of proposed rulemaking[1] attempting to codify procedures the agency uses to resolve alleged violations of systemic discrimination.

The regulation would establish differing standards for anecdotal evidence based on strength of presented statistical evidence, solidify the importance of practical significance, and clarify the procedures surrounding two formal notices, the predetermination notice, or PDN and notice of violation, or NOV.

The OFCCP will issue PDNs in matters premised on statistical evidence only when the statistical finding equates to three or more standard deviations (roughly 99% confidence rate), but will require anecdotal...

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