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Jana Garman

Jana Garman, M.A.

EEO Compliance Manager
Senior Consultant
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Jana Garman is a Senior Consultant, who joined DCI Consulting Group in the summer of 2010 as a graduate student intern. Jana provides consultation to federal contractor clients on AAP reporting and EEO regulatory compliance, audit strategy and risk assessment, and pay equity analysis. She has conducted a variety of adverse impact and compensation analyses, including selection-based step analyses, reduction in force analyses, and base pay analyses for litigation preparation. She has presented research at professional conferences on topics related to LGBT in the workplace, psychometrics, and academic opportunities in the human resources field.

Jana has provided consultation to federal and state government agencies on organization processes, such as job analysis questionnaire writing. She assists in conducting job analyses for such purposes as selection and performance appraisal and management, provides affirmative action and statistics training, and contributes to blogs and other written guidance provided by DCI for the contractor community. Additionally, Jana has been involved with a nationally-scaled job analysis for a selection system redesign.

Jana earned her Master of Arts degree in Industrial/Organizational Psychology from Radford University in Radford, Virginia. During her graduate studies, Jana contributed to client projects surrounding job analysis, employee satisfaction, training and development, test validation and selection, and performance appraisal. Jana has also participated in projects for the local community involving salary surveys and structured interview creation and implementation. Jana is a current member of several professional organizations including the American Psychological Association (APA), the Society for Industrial and Organizational Psychology (SIOP), the Washington Metro Industry Liaison Group (WMILG), the Personnel Testing Council Metropolitan Washington (PTCMW), and the Society for Human Resource Management (SHRM).

Jana Garman ’s Recent Posts

President Trump’s office issued a press release on January 31st, stating his intention to continue enforcing Executive Order 13672. This order was issued by President Obama in July 2014, amending Executive Order 11246 to extend protection from workplace discrimination to the LGBT population. This press release refutes speculation that President Trump would be rescinding this order entirely, however, it is currently unclear if there will be stronger religious exemptions to follow. President Obama’s original order did not include any religious exemptions. However, an order signed by President Bush amended EO 11246 to exempt religious organizations from non-discrimination on the basis of religion. This exemption is nearly identical to the language of the religious exemption in Title VII. Such exemptions, as currently written, state that religious organizations are able to “favor or prefer to employ individuals of a particular religion when making employment decisions.”

If President Trump intends to increase the parameters of the current religious exemption, there are a number of possible outcomes. First, the exemption could be broadened to all contractors and not just specifically religious ones. Additionally, a possible iteration of the exemption in the form of the Employment Non-Discrimination Act, would allow religious contractors to require employees “to conform to a declared set of significant religious tenets.” In the coming weeks, it is possible that President Trump may draft a new EO focused on religious freedom. DCI will be tracking this issue closely to provide the most up to date information for contractors.

By Rachel Monroe, HR Analyst, and Jana Garman, Senior Consultant at DCI Consulting Group

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DCI Consulting Group (DCI) had representatives attend the SHRM Diversity and Inclusion (D&I) conference held October 25-27, 2016 in Austin, TX. A draw for the conference was to hear from business leaders on D&I initiatives, such as aligning D&I strategy to business objectives and attracting and retaining diverse talent by striving for an inclusive culture. A recap of the conference sessions, in which DCI was present and deemed to be a direct relation to both D&I and compliance, can be found within this blog.

The Business Case for Hiring Military Veterans: Strategies, Approaches and Best Practices

Nathan D. Ainspan, Ph.D., of the Transition to Veterans Program Office (TVPO) Department of Defense, spoke to attendees about initiatives to attract and retain veterans in the workplace. With approximately 200,000 annual transitions from the military, there is ample opportunity to improve and bridge the transition process for this skilled population. Dr. Ainspan has partnered with the Society of Industrial and Organizational Psychology and the Society of Human Resource Management for education, training and research in this field.

He outlined the skills veterans have that are in need as identified in a literature review, concerns by veterans transitioning (i.e., may be considered more of a career change than a transition which may take 6 months to a year for placement), as well as successful practices for attracting and retaining veterans (e.g., effective on-boarding, mentoring programs, and affinity groups). In addition, Dr. Ainspan noted the following resources:

Resources for Hiring

  • Local Installation Transition Office;
  • American Job Centers; and
  • Hiring Our Heroes.

Recruiting Resources

  • DoD SkillBridge Program;
  • DoDs Transition Assistance Program; and
  • VA’s Veteran Employment Toolkit.

Creating an Inclusive Culture in Your Organization

Lauren Aguilar, with Paradigm, summarized empirical evidence supporting an inclusive culture in this session. She covered the following concepts and shared how to optimize each for a more inclusive organizational culture:

  • Physical environment (e.g., cues in the environment)
  • Growth mindset (e.g., learn from mistakes)
  • Team communications (e.g., impact of interruptions)
  • Psychological safety (e.g., interpersonal risk taking)
  • Feedback (e.g., delivery and focus of feedback)

Managing D&I: Religion and LGBTQ Issues in the Workplace

Michael S. Cohen of Duane Morris LLP discussed the legal and practical implications of organizations addressing issues that arise related to LGBTQ status and requests for religious accommodation. This session included discussion of:

Response Options to Religious Accommodation Requests

  • Accommodation denied due to employee not holding a bona fide religious belief
  • Accommodation not available or poses undue hardship on the employer
  • Accommodation not needed, as request has no conflict with employment requirements
  • Accommodation offered (which employee may accept or reject)

LGBTQ Considerations

  • Effect of local laws on practices and policies
  • Level of inclusiveness in organization policies
  • Environment and culture
  • Demographics of leadership

Invisible No More ® – Seven Realities of the Invisible Becoming Visible

In a session focusing on invisible disabilities, Wayne Connell, founder and president of Invisible Disabilities Association based in Denver, CO, highlighted some points to keep in mind when working with individuals with invisible disabilities inside and outside of the workplace:

  • 74% of individuals with severe disabilities do not use assistive devices
  • 24% of Americans have 1 or more chronic illnesses
  • You can support individuals with invisible disabilities by:
    • Acknowledging their situation – do not assume that because you cannot see what they are going through that it is not real. Believe them first.
    • Acknowledging their losses – many people with invisible disabilities have had to alter or completely change the way they live their life as a result of their disability
    • Respecting their boundaries and limitations – ensure they have equal access/invitation to positive opportunities at work (i.e. just because they say no to participating in an activity once, do not assume they never want to be invited again or are always unable to participate)
    • Showing them you are listening – they are the best person to show you what they need to succeed
    • Showing them you are willing to help – maintain a friendly and open orientation toward assisting them with daily activities

Everything You Wanted to Know About Gender Transition in the Workplace but Didn’t Even Know to Ask

Grace Stevens, President of GVET, described her experience transitioning in the workplace and provided employers with best practices on supporting transgender individuals in their organizations. Here are some of the key takeaways:

  • Educate transgender employees that it’s OK for them to set boundaries (e.g., to not go into detail with others about their transition unless they want to)
  • Educate non-transgender employees to accept and respect the boundaries set by transgender coworkers
  • Advise employees going through transition that it may be beneficial for them to write a “coming out” letter to coworkers to address common questions (e.g., pronoun use)
  • HR should create and make publicly available (e.g., dissemination from top leadership recommended) a policy promoting the inclusion of transgender employees in the workplace and highlight resources available to transgender employees and how to access them.

What the #%!*: Political Correctness in the Workplace

In this session led by Marc Scheiner, attorney at Duane Morris LLP, discussion surrounding the issue of navigating political correctness in the workplace took stage. “Political correctness,” according to Scheiner, can be more applicably interchanged with “treating people with respect,” which is the ultimate goal of any harassment prevention program. Scheiner reminds us that we need to not only train managers on dealing with obvious inappropriate conduct (e.g. patent racism or sexism) but also less obvious forms such as:

  • Jokes
  • Stereotyping
  • Requests for dates
  • Pop culture references
  • And even more subtle forms such as:
    • “Positive” stereotypes
    • Unconscious bias
    • Microaggressions
    • Non-inclusiveness

While HR’s focus should be on managing and preventing inappropriate behavior and harassment, the focus of organizational leaders should center on creating a culture that encourages openness, promotes listening and mutual respect, and supports a learning environment.

The Neuroscience of Mitigating Bias and Elevating D&I

David Rock of NeuroLeadership Institute provided advice to employers based on research conducted at the Institute on understanding and breaking bias. The model he proposed using consisted of:

  • Accepting that brains are biased
  • Labeling the bias you are dealing with
  • Mitigating biases with brain-based strategies

Instead of raising awareness of the exclusion of particular groups, David Rock suggests employers build new habits that create inclusion, focusing on the smallest possible set of behaviors to shape in these new habits.

DCI staff look forward to networking with you at the 2017 D&I conference! Stay informed of DCI’s D&I initiatives (e.g., D&I program evaluations, trainings, employee life-cycle diversity dashboards and metrics) through our bi-weekly blogs.

By Keli Wilson, Principal Consultant; Jana Garman, Senior Consultant; and Jeff Henderson, Associate Consultant, at DCI Consulting Group 

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DCI has recently seen an increase of audit “pre-requests,” in which a compliance officer requests that a contractor submit additional items to those found in the Itemized Listing. This request is made by OFCCP prior to receiving the contractor’s desk audit submission and asks for items that often appear in an early post-submission request, such as job listing evidence, copy of VETS reporting, copy of employee handbook, etc. It’s unclear whether these requests are consistently asked of all contractors audited through particular district offices; however DCI has seen some consistency of items in such requests.

There are some concerning aspects to these “pre-requests,” including the following points:

  • Although these items are typically requested post-desk audit submission, there is no Office of Management and Budget (OMB)-approved form to request these items of all contractors. When requested before receipt and review of a contractor’s submission, these items appear to be a more indiscriminate solicitation, similar to an OMB-approved information collection request (ICR).
  • Following the previous point, these requests are typically presented as though they are required as part of the desk audit submission and many contractors may not understand they can (and often should) request extra time to fulfill the request or explanation of why certain items are being requested.
  • In spite of providing some helpful tips as part of these requests, some of the guidance provided by the compliance officer is incorrect or may be confusing. For example, we have seen guidance noting that hiring numbers with 1:1 selection to pool ratios, or small ratios, are not to be included in the submission. This implies that in all instances a 1:1, or small, hiring ratio would be incorrect or a violation of the regulations, yet we know that in some cases this scenario occurs for legitimate reasons; see this blog for additional exploration of this topic.

Because these “pre-requests” appear to be increasing in frequency, contractors are advised that if they receive such a request for an establishment, begin by engaging with the compliance officer. Outright denying access to requested materials is not recommended; however, DCI does recommend acknowledging receipt.  Contractors should work with the compliance officer to determine a different submission date and/or politely request that OFCCP first review the desk audit package once delivered, before requesting items that are not a part of the OMB-approved scheduling letter and itemized listing.

By Jana Garman, Consultant, and Amanda Shapiro, Senior Consultant at DCI Consulting Group

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A recently updated OFCCP infographic illustrates the jurisdictional thresholds triggering the requirement for contractors to comply with nondiscrimination and affirmative action requirements. Every five years, the Federal Acquisition Regulatory Council (FAR Council) is required to review the dollar threshold amounts in some federal agency procurement related laws to determine if adjustments need to be made for inflation. The FAR Council does not review EO 11246 thresholds, but does determine thresholds for Section 503 and VEVRAA.

Effective October 1, 2010, the FAR Council implemented inflationary adjustments for Section 503; changing the supply and service contractor threshold for a written affirmative action plan (AAP) from $10,000 in contracts to $15,000. Effective October 1, 2015, inflationary adjustments have been implemented for VEVRAA; changing the supply and service contractor threshold for a written affirmative action plan (AAP) from $100,000 in contracts to $150,000. Notably, this increase in the VEVRAA threshold applies to VETS-4212 filing requirements, as well. Additional information on the effect of the FAR adjustment on these filing requirements can be found here.

By Jana Garman, Consultant, and Kristen Pryor, Consultant at DCI Consulting Group 

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The OFCCP announced a new Functional Affirmative Action Plan (FAAP) directive this week, which is effective as of April 28, 2016 through April 30, 2019. Although largely unchanged, there are some important updates for federal contractors to note regarding the application and maintenance processes of a FAAP agreement.

Previously, the guidance from the OFCCP was that to be eligible for a renewal of an existing FAAP agreement, the contractor must have had at least two functional units undergo a compliance evaluation during the three-year term of the agreement. Now, contractors are told that by having an approved FAAP agreement, they will undergo at least one compliance evaluation during the agreement period, which is not guaranteed of contractors developing establishment-based plans. Additionally, instead of requiring a conference to review and discuss the FAAP application materials, the FAAP unit now engages in FAAP negotiation processes that may not warrant a conference.

Updated FAQs on the FAAP program have not yet been released. Because there are few modifications resulting from the new directive, contractors may consider referencing the existing FAQs, keeping in mind the above noted changes.

By Keli Wilson, Principal Consultant, and Jana Garman, Consultant, at DCI Consulting Group 

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In response to the call for public comments, The OFCCP Institute submitted comments regarding the EEOC’s proposed update to the EEO-1 annual report. The OFCCP Institute’s feedback addresses concerns about the burden estimate and pay data proposed for collection. Data concerns include the type of data collected (i.e., W-2 earnings), the utility of pay banding, and the level of security employers should expect when submitting sensitive data. Supporting their comments, The OFCCP Institute included results of a member survey on system updates and costs that would be necessary for meeting the data requirements of the proposed report.

The OFCCP Institute’s comments and member survey results can be accessed here.

By Jana Garman, Consultant at DCI Consulting Group 

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On March 15, 2016, The Wall Street Journal released an article focusing on the results of pay discrimination investigations carried out by the Office of Federal Contracts Compliance Programs (OFCCP) through their standard compliance review process. The author’s inquiry was informed by settlement outcomes, OFCCP activity measures, and interviews with experts in the field, including David Cohen with DCI. The article suggests that the agency’s results have been inadequate given the importance of their charge to address the wage gap.

After 7 years under Director Patricia Shiu, the article reports that OFCCP has had few results based on pay discrimination investigations. Between the start of 2010 and September 2015, the total relief funds collected by OFCCP equaled about $5 million. When compared to a single $5.5 million settlement collected under the Bush administration in 2004, pay discrimination settlements have notably decreased. This downward trend in settlements is also evident in that only 8 compliance reviews resulted in a pay discrimination settlement during fiscal year 2015, the lowest annual sum of pay cases thus far under this administration.

In defense of OFCCP’s results, Director Shiu said that the agency has made considerable changes that have required extensive training of personnel. She noted that the increased scope of audits has led to a more lengthy review of each audited contractor, which partially resulted from the rescission of the 2006 Standards and Guidelines and implementation of a new Directive. She also noted that the agency had a workforce overhaul, adding statisticians and compliance officers. Although not noted in the article, contractors may also recall that OFCCP rescinded the protocol of “Active Case Management”, replacing it with “Active Case Enforcement,” as well as implemented several new Executive Orders and revised regulations; all of which likely contributed to the extensive training mentioned.

OFCCP has received an increased budget for several years with a current $105 million annual budget, up from about $82 million in 2009. In spite of increased resources, OFCCP’s results have been underwhelming, which may call into question the methods utilized to investigate pay discrimination. Director Shiu stated that systemic compensation cases take time to develop and that the agency has many cases in the pipeline. It will be interesting to see what the remainder of the fiscal year brings.

By Jana Garman, Consultant, and Amanda Shapiro, Senior Consultant at DCI Consulting Group 

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In addition to the federal government’s national focus on the gender pay gap, individual states have recently been furthering their own agendas for addressing sex disparities in pay as well. Amendments to fair pay laws in both California and New York took effect in January 2016, increasing protections against sex-based wage discrimination. Since then, additional states have followed suit and taken steps to advance equal pay by signing into law more stringent standards for pay equity.

For example, governors in Connecticut, Missouri, Delaware, and Oregon have supported measures aimed at narrowing the gender wage gap by increasing the employer burden to justify pay disparities through non-work related defenses. Both Massachusetts and New Jersey have also passed bills through their Senates to increase protections that are now being considered by their Houses. Both include prohibition of discrimination based on performance of similar work, following the lead of the standards set in California.

Although the majority of states already have equal pay laws in place, this recent trend in amending toward more rigorous standards is important for employers to monitor. With this heightened focus on pay discrimination, it is increasingly critical for all employers to be proactive in analyzing compensation and explaining pay disparities in accordance with relevant state regulations.

By Jana Garman, Consultant, and Brittany Dian, Associate Consultant at DCI Consulting Group 

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Prior to the recently enacted California Fair Pay Act (CFPA), federal and state laws and regulations allowed employers to justify sex differences in salaries by using statistical methodologies to control for legitimate pay factors such as education, experience, and performance. Although the CFPA provides defenses for compensation differences based on seniority systems, merit systems, earnings systems based on quantity/quality of production, and bona fide occupational factors (other than sex), the law directs employers to explain the entire pay differential between men and women. This unprecedented requirement has already resulted in confusion within the employer community.

One of the most common questions we are already receiving from clients is, does the word “entire” actually mean a $0 average difference in salary between men and women?

The standard used by the courts (in cases tried under Title VII of the Civil Rights Act of 1964) has always been that the observed difference in salary must be statistically significant.  That is, the observed difference from $0 is not likely to be due to chance. For example, a contractor finds that there is a $1,500 average difference in salary between male and female administrative assistants and that difference is statistically significant (i.e., t ≥ 2.00).  After running a regression analysis that controls for years of experience and education, the difference drops to $400, which is not statistically significant (i.e., t < 2.00).  Years of case law are clear that the statistically non-significant difference would not be viewed as pay discrimination under Title VII guidelines for pay enforcement.  Would this statistically non-significant difference, however, be viewed by the CFPA as being illegal?  DCI has never seen a situation in which a regression analysis resulted in an average difference of exactly $0.

What about a job title in which there are too few employees to run a regression analysis?  Take, for example, a situation in which a male employee was paid $55,000 and a female employee $53,000. Both have the same amount of experience but the male employee has a master’s degree whereas the female employee only has a bachelor’s degree.  Does the master’s degree explain the “entire” $2,000 difference?  What if the master’s degree was actually valued at $5,000 per year? Does the male employee now have a case for pay discrimination?

We can’t wait for the first test of this concept to go to court – with a non-DCI client, of course.

By Mike Aamodt, Principal Consultant, and Jana Garman, Consultant at DCI Consulting Group 

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We have written several blogs (e.g., regarding the recent Apsley v. Boeing case) discussing the influence of sample size on the likelihood of observing statistically significant indicators in adverse impact analyses. As covered in those blogs, the larger the samples being analyzed, the higher the likelihood of observing statistically significant indicators of protected class subgroup differences, regardless of how different the pass rates are in practical terms. However, even in cases of small sample sizes, the differences between protected class subgroups may be statistically significant, and it is equally important (as it is with large samples) to evaluate the practical significance of the difference. In the following paragraphs, we discuss interpreting analysis results based on small pools or small numbers of selections.

In any case in which statistically significant indicators between protected class subgroups are found, it is critical to consider the practical significance of the difference. A common measure of practical significance is the shortfall, which is defined as the difference between expected selections and actual selections. The shortfall is calculated by (1) determining the number of selections that would have been expected from a group given the overall selection rate and (2) subtracting the number of actual selections from that group. This is often used in the EEO realm as an indicator of the magnitude of the adverse impact effect.

As an example of the importance of evaluating the magnitude of the shortfall when sample sizes are small, but selection rate differences are statistically significant, refer to the example data below:

Chart

Given an overall selection rate of 20%, it is expected that 2 females would have been selected from the 10 that applied. Only 1 was actually selected, yielding a shortfall of one female. The question here becomes: With a relatively small applicant pool and few selections made, does the shortfall of one female indicate a true problem of selection rate differences?

There have been a variety of uses of the shortfall utilized in the courts and by EEO enforcement agencies. The “flip-flop” standard has been endorsed by the courts and addressed by the Uniform Guidelines on Employee Selection Procedures (UGESP) as a viable assessment of whether small changes to underlying numbers (the selection decision data) would change the analysis results significantly. The UGESP Question and Answer (#21) illustrates this standard in saying:

Generally, it is inappropriate to require validity evidence or to take enforcement action where the number of persons and the difference in selection rates are so small that the selection of one different person for one job would shift the result from adverse impact against one group to a situation in which that group has a higher selection rate than the other group.

To demonstrate from our example above, the hiring of one more female and one fewer male would have resulted in a 0% difference in selection rates. Recently, a different interpretation of the shortfall figure was presented in the case of Apsley v. Boeing Co. (2012). The court determined in this case that if the shortfall was a low percentage of the overall number of selections, the analysis results were not deemed robust enough to support a claim of adverse impact. Use of the shortfall in this manner allows for taking the pool size into account, which may warrant wider use in future court decisions. In the above case, the shortfall is 20% of the total selections made.

With the backing of UGESP and case law precedent, contractors are encouraged to interpret adverse impact analysis results of small pools and small numbers of selections with additional practical significance measures.

By Jana Garman, Consultant and Kayo Sady, Senior Consultant at DCI Consulting Group 

 

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Really, I Come Here for the Food: Sex as a BFOQ for Restaurant Servers

Michael Aamodt, Principal Consultant at DCI Consulting Group, wrote an article featured in SIOP’s TIP publication, January 2017.

Recent Blog Posts

OFCCP Begins Mailing Scheduling Letters

DCI has just learned that OFCCP began to send out audit scheduling letters on March 17th.  At this time we are not certain how many were sent out, but we do know that 800 CSALs (Corporate Scheduling Announcement Letters) were sent to contractor establishments last month.  It is critical that corporate compliance representatives notify individual establishments in their organization to be on the look-out for any official OFCCP correspondence.  If you did receive a scheduling notice, please notify DCI immediately so that we can assist you with the audit process.

To read the audit distribution notice, please click here.

By Rosemary Cox, Senior Consultant at DCI Consulting Group

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