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Affirmative Action is a set of steps that employers use to promote equal employment opportunity and to eliminate discrimination. It includes expanded outreach, recruitment, mentoring, training, management development, and other programs designed to help employers hire, retain, and advance qualified workers from diverse backgrounds, including persons with disabilities.
Scope
The federal program is administered by the Office of Federal Contract Compliance Programs (OFCCP) under authority of Executive Order 11246 . Often, state or local governments impose similar requirements. The information presented here refers only to the federal program.
Regulatory citations
- None
Key definitions
- Affirmative Action Plans (AAPs): A set of specific and result-oriented procedures to which a contractor commits itself to apply every good faith effort.
Summary of requirements
Who must comply? When a non-construction (service and supply) government contractor has 50 or more employees and a contract of $50,000 or more, the contractor must take certain actions.
Affirmative action requirements also apply to construction contractors and subcontractors that hold any federal or federally assisted construction contract in excess of $10,000.
The regulations implementing affirmative action establish different provisions for non-construction (i.e., service and supply) contractors and for construction contractors.
Written AAPs. Non-construction (service and supply) contractors with 50 or more employees and government contracts of $50,000 or more are required to develop and implement a written AAP for each establishment.
The AAP is developed by the contractor (with technical assistance from OFCCP if requested) to assist the contractor in a self-audit of its workforce. The AAP is kept on file and carried out by the contractor. It is submitted to OFCCP only if the agency requests it for the purpose of conducting a compliance review.
The AAP identifies those areas, if any, in the contractor’s workforce that reflect under-utilization of women and minorities. The regulations define under-utilization as having fewer minorities or women in a particular job group than would reasonably be expected by their availability.
When determining availability of women and minorities, contractors consider, among other factors, the presence of minorities and women having requisite skills in an area in which the contractor can reasonably recruit.
Based on the utilization analyses and the availability of qualified individuals, the contractors establish goals to reduce or overcome the under-utilization. Good faith efforts may include expanded efforts in outreach, recruitment, training and other activities to increase the pool of qualified minorities and females. The actual selection decision is to be made on a non-discriminatory basis.
Employers with 50 or more employees and a federal contract of $50,000 or more must also maintain a written AAP for individuals with disabilities. Contractors with 50 or more employees and a federal contract of $150,000 or more must complete a written AAP for protected veterans.
Requirements for construction contractors. OFCCP has established a distinct approach to affirmative action for the construction industry due to the fluid and temporary nature of the construction workforce. In contrast to the service and supply affirmative action program, OFCCP, rather than the contractor, establishes goals and specifies affirmative action which must be undertaken by federal and federally-assisted construction contractors. OFCCP issued specific national goals for women. The female goal of 6.9 percent was extended indefinitely in 1980 and remains in effect today.
Construction contractors are not required to develop written AAPs. The regulations enumerate the good faith steps construction contractors must take in order to increase the utilization of minorities and women in the skilled trades.
Who enforces affirmative action requirements? OFCCP, under the Department of Labor, enforces:
- Executive Order 11246, as amended;
- Section 503 of the Rehabilitation Act of 1973, as amended; and
- The affirmative action provisions (Section 4212) of the Vietnam Era Veterans’ Readjustment Assistance Act, as amended.
Taken together, these laws ban discrimination and require federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam era or special disabled veteran.
OFCCP requires a contractor, as a condition of having a federal contract, to engage in a self-analysis for the purpose of discovering any barriers to equal employment opportunity. No other government agency conducts comparable systemic reviews of employers’ employment practices to ferret out discrimination. OFCCP also investigates complaints that the executive order has been violated.
Penalties. If OFCCP determines that a contractor has violated the affirmative action provisions, it may impose a variety of sanctions, including:
- Requiring changes in the AAP, company procedures, or hiring and pay practices;
- Canceling, terminating, or suspending a contract; or
- Debarring the contractor from future government contracts.
Establishments may voluntarily engage in affirmative action practices.