Ricci v DeStefano - Clarifying What it Means for Affirmative Action

This is for the federal government contractors.  The Office of Federal Contract Compliance Programs (OFCCP) enforces certain obligations contractually imposed on larger companies that contract with the government.   The rules OFCCP enforce require contractors to, among other things, have affirmative action plans. 

Ricci v. DeStefano raised some questions about these affirmative action plans but only if they were being relied upon to fullfil a quota, something genuine affirmative action eschews.

The OFCCP looks to remedy systemic discrimination, however, so it is only natural for the OFCCP to clarify that Ricci does not significantly (if at all) change the agency's procedures or a contractor's obligations.  Some highlights:

• Ricci does not affect how OFCCP examines the use and impact of selection procedures, such as tests.
• Ricci does not change a contractor's affirmative action obligations under the mandates enforced by OFCCP.
• Ricci indicates that an employer's failure to conduct an appropriate job analysis, or to validate a test or other selection procedure prior to its implementation, places an employer in a position that may be difficult to defend should the test be found to have an adverse impact after it is used.