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Federal Contracts-Equal Opportunity in Employment: Employment Nondiscrimination and Equal Opportunity in Construction Contracts
Updated: September 2009
Order 11246, as amended (Parts II, III, and IV)(http://www.dol.gov/ofccp/regs/statutes/eo11246.htm)
Who is Covered
Executive Order 11246 and its implementing regulations are administered by the Office of Federal Contract Compliance Programs (OFCCP) and cover employers with federal contracts or subcontracts that exceed $10,000, or that will (or can reasonably be expected to) accumulate to more than $10,000 in any 12-month period.
Covered contracts may be for the purchase, sale, or use of personal property, nonpersonal services, or both. In this context, the term "nonpersonal services" includes services such as construction. Agreements where the parties stand in the relationship of employer and employee are not covered.
In addition, the Executive Order and the regulations cover contractors and subcontractors who hold any federally assisted construction contract in excess of $10,000. Under Section III of the Executive Order, in all contracts for construction to be financed wholly or partially by federal financial assistance, all applicants for federal financial assistance must include a specific clause notifying the construction contractor that it is covered by the Executive Order. All applicants must also agree to cooperate with the Secretary of Labor in enforcing the Order.
The following types of contracts and subcontracts are exempt from the Executive Order:
Specific exemptions may apply to the following:
Moreover, contractors or subcontractors that are religious entities may grant employment preferences to individuals of a particular religion but must comply with other requirements of the Executive Order.
The Executive Order and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a federal contract or subcontract. This coverage is narrower than that which applies to private sector employers.
The Executive Order and the regulations require covered contractors and subcontractors to refrain from discrimination and take affirmative steps to ensure that applicants and employees receive equal employment opportunity regardless of race, color, religion, sex, and/or national origin.
Covered construction contractors and subcontractors must make good faith efforts to achieve goals set by OFCCP for the employment of women and minorities in all crafts and trades in their area where the contracts are to be performed. These contractors and subcontractors must pursue such goals on all their construction work, whether or not federal or federally assisted. They must also include a specific equal opportunity clause in each of their nonexempt contracts and subcontracts. The Order and the regulations provide the required language(http://www.dol.gov/ofccp/regs/statutes/eo11246.htm) for this clause.
Although they are not required to create written affirmative action programs (AAPs), construction contractors and subcontractors must follow the regulations that require federal and federally assisted construction contractors and subcontractors to take specific affirmative steps to ensure equal employment opportunity. Contractors and subcontractors must also fully document their affirmative action efforts.
All construction contractors and subcontractors, whether or not federally assisted, are prohibited from discrimination based on race, color, religion, sex, and national origin in such employment practices as recruitment, rates of pay, hours, upgrading, layoff, promotion, selection for training, advertising efforts, job classifications, seniority, retirement ages, or job fringe benefits such as employer contributions to company pension or insurance plans. Sexual harassment is also a violation of the nondiscrimination provisions of the Executive Order.
The regulations also include other specific requirements, such as those summarized below.
Anyone has the right to file a complaint with OFCCP if he or she believes that a federal contractor or subcontractor has discriminated on the basis of race, color, religion, sex, or national origin. In most cases, complaints must be filed within 180 days of the discriminatory action. Anyone may contact OFCCP with a question about interpreting the regulations, filing a complaint, or any other related matter.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 or who hold contracts or subcontracts with the federal government in any 12-month period that have a total value of more than $10,000 are required to post the EEO notice, Equal Employment Opportunity is the Law (PDF)(http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm).
The notice must be posted in conspicuous places available to employees and applicants for employment and representatives of each labor union with which the covered contractor or subcontractor has a collective bargaining agreement, such as, the personnel office, work-out facility, lunchroom, or company bulletin board. There is no particular size requirement.
The notice is also available in Spanish(http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeosp.pdf) and Chinese(http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost(chinese).pdf). Posting of the notice in languages other than English is not required.
OFCCP recognizes that there are differences between its poster and the Equal Employment Opportunity Commission’s (EEOC) poster(http://www.eeoc.gov/posterform.html). Despite these differences, both posters are accepted as valid by OFCCP and EEOC.
Personnel records. Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:
Federal contractors and subcontractors with fewer than 150 employees or a contract of less than $150,000 have to keep records for one year from the date of the making of the personnel record or personnel action, whichever occurs later.
Federal contractors and subcontractors with 150 or more employees or who have a government contract of $150,000 or more are required to keep employment records for two years from the date of the making of the personnel record or personnel action, whichever occurs later.
For any record contractors maintain, they must be able to identify the gender, race, and ethnicity of each employee; and where possible, the gender, race, and ethnicity of each applicant or Internet applicant, whichever is applicable to the particular position.
The Internet Applicant regulations addressed recordkeeping and the use of the Internet and electronic data technologies in contractors’ recruiting and hiring processes. This rule includes soliciting data on the race, gender and ethnicity of applicants. For more detail about the Internet Applicant Recordkeeping rule, see OFCCP’s Frequently Asked Questions(http://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm).
While covered construction contractors and subcontractors are not required to have a written AAP, they must maintain documentation of the actions they took to meet the contract specifications (the 16 Steps(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9L&exitTitle=www.ecfr.gov&fedpage=yes)). For more information, see OFCCP’s Construction Contractors’ Technical Assistance Guide. [MS Word Version(http://www.dol.gov/ofccp/TAguides/consttag.doc)] [PDF Version(http://www.dol.gov/ofccp/TAguides/consttag.pdf)].
All covered federal contractors and subcontractors who have 50 or more employees, and who have a contract, subcontract, or purchase order amounting to $50,000 or more; or serve as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes are required to submit EE0-1 forms each year with the U.S. Equal Employment Opportunity Commission's EEO-1 Joint Reporting Committee. See EEOC’s information on filing the EEO-1 Report (EEO-1 forms(http://www.eeoc.gov/eeo1survey/)).
OFCCP investigates for violations of the Executive Order either through compliance evaluations or in response to complaints. If a violation is found, OFCCP may ask the contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may (1) initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor, or (2) refer the matter to the Department of Justice for action by the Attorney General.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge (ALJ), who hears the case and recommends a decision. If the contractor or subcontractor is dissatisfied with the ALJ's decision, it may appeal the decision to the Department of Labor's Administrative Review Board. The Board issues the final decision, whether or not there is an appeal.
If the Board finds that the contractor or subcontractor has violated the Executive Order, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination. Depending on the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, and debarment.
If the contractor or subcontractor is dissatisfied with the Board's decision, it may appeal that decision to the federal courts.
Relation to State, Local, and Other Federal Laws
OFCCP generally refers individual complaints alleging discrimination based on race, color, religion, sex, or national origin to the Equal Employment Opportunity Commission(http://www.eeoc.gov/).
Covered contractors and subcontractors that qualify as "employers" under Title VII of the Civil Rights Act of 1964 are required to comply with the Pregnancy Discrimination Act of 1978. Additional information on this law may be found at the Equal Employment Opportunity Commission’s Facts About Pregnancy Discrimination Web page(http://www.eeoc.gov/facts/fs-preg.html). Such employers must also provide equal fringe benefits, and make equal contributions for such benefits, for men and women.
Compliance Assistance Available
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with Executive Order 11246. Among the many resources available are:
Additional compliance assistance — including explanatory brochures, fact sheets, and regulatory and interpretive materials — is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-eeo.htm) Web page.
Office of Federal Contract Compliance