These affirmative action FAQs are offered to foster a better understanding of the federal contractor obligation to take affirmative action in its employment activities. The purpose of affirmative action is to ensure equal employment opportunities for applicants and employees. It is based on the premise that, absent discrimination, over time a contractor’s workforce generally will reflect the demographics of the qualified available workforce in the relevant job market. Affirmative action requirements are intended to ensure that applicants and employees of federal contractors have equal opportunity for recruitment, selection, advancement, and every other term and privilege associated with employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.
- How does OFCCP define federal contractor affirmative action obligations?
- If a contractor is not covered by the written affirmative action program (AAP) requirement, does it have any affirmative action obligations?
- What types of affirmative action obligations are covered by written AAPs?
- May a contractor set quotas as a way to meet its affirmative action obligations?
- What if a contractor does not meet its affirmative action obligations?
- Are the affirmative action obligations OFCCP enforces similar to the affirmative action steps taken by some educational institutions to increase the racial diversity of their student bodies?
How does OFCCP define federal contractor affirmative action obligations?
Affirmative action is defined by OFCCP regulations as the obligation on the part of the contractor to take action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. See 41 CFR 60-1.4, 60-300.5, and 60-741.5. The regulations state that the affirmative action obligation reaches all terms, conditions, and privileges of employment, including recruitment, promotion, termination, and compensation.
If a contractor is not covered by the written affirmative action program (AAP) requirement, does it have any affirmative action obligations?
Yes, certain affirmative action obligations apply even if the contractor does not meet the thresholds requiring written AAPs. All covered contractors have the obligation to take affirmative action and ensure nondiscrimination in all of their employment practices. See 41 CFR 60-1.4, 60-300.5, and 60-741.5. Covered contractors are those that have any number of employees and have contracts valued in aggregate at more than $10,000 (Executive Order 11246), a contract valued at more than $15,000 (Section 503), or a contract valued at $150,000 or more (VEVRAA). Examples of affirmative action requirements that apply to all covered contractors include the following:
- Providing notice to applicants and employees that the contractor is an equal opportunity employer by using taglines in job advertisements.
- Posting the “EEO is the Law” poster and other notices to inform applicants and employees of the employer’s nondiscrimination and equal opportunity obligations.
- Under VEVRAA, providing notice to the relevant American Job Center (CareerOneStop) or state workforce agency that it is a federal contractor requesting priority referral of protected veterans and that it has job openings to list in the job bank.
For more information about affirmative action requirements other than written AAPs, please review OFCCP’s Postings and Notices Guide and Checklist.
What types of affirmative action obligations are covered by written AAPs?
Contractors that have at least 50 employees and also meet the contract value thresholds under Executive Order 11246, VEVRAA, and/or Section 503 are required to develop and maintain written AAPs. The components of a written AAP address both nondiscrimination and affirmative action obligations. Written AAP components include the following
- Executive Order 11246: Comparing the utilization of women and minorities to their availability; setting placement goals if women or minorities are underutilized; assessing recruitment and outreach efforts; and developing and executing action-oriented programs to address identified problems. See 41 CFR part 60-2.
- VEVRAA: Assessing personnel processes and standards; using effective recruitment and outreach efforts designed to recruit protected veterans; assessing recruitment and outreach efforts; developing and executing action-oriented programs to address identified problems; and establishing a hiring benchmark. See 41 CFR part 60-300, subpart C.
- Section 503: Assessing personnel processes and standards; using effective recruitment and outreach efforts designed to recruit qualified individuals with disabilities; assessing recruitment and outreach efforts; developing and executing action-oriented programs to address identified problems; and using the OFCCP utilization goal as a benchmark to measure representation of individuals with disabilities in its job groups and/or workforce. See 41 CFR part 60-741, subpart C. Although not required, OFCCP regulations expressly permit contractors to develop and implement training and employment programs for employees with disabilities. See 41 CFR 60-741.46(a) and the Section 503 Focused Reviews FAQs for more information.
May a contractor set quotas as a way to meet its affirmative action obligations?
No, OFCCP regulations do not permit quotas, preferences, or set-asides. They are strictly forbidden. Placement goals (under Executive Order 11246), utilization goals (under Section 503), and hiring benchmarks (under VEVRAA) are not to be interpreted as a ceiling or floor for the employment of particular groups of persons but, rather, should serve as a benchmark against which the contractor measures the representation of persons within its workforce. Placement goals, utilization goals, and hiring benchmarks are not rigid or inflexible quotas to be met but, rather, standards of measurement of how a contractor is fulfilling its affirmative action obligations. When a contractor fails to meet a utilization goal or hiring benchmark, the contractor assesses its employment practices and takes appropriate measures to address identified problem areas and remedy potential discrimination. Such remedies may include assessing and revising policies and practices that hinder employment opportunities, broadening recruitment and outreach to increase the diversity of applicant pools, and/or instituting training and/or apprenticeship programs to increase promotion opportunities and applications from underrepresented groups.
What if a contractor does not meet its affirmative action obligations?
The OFCCP compliance evaluation, investigation, and conciliation processes are designed to identify and correct violations. Under OFCCP’s resolution procedures, the agency will seek to conciliate, correct, and remedy any noncompliance with Executive Order 11246, Section 503, VEVRAA, and their implementing regulations. As a part of the conciliation process, OFCCP generally proposes a conciliation agreement that requires specific steps to be taken by the contractor to ensure the violations are corrected and remedied, as appropriate. For more information about OFCCP’s resolution procedures, please review Chapter 8 of the Federal Contract Compliance Manual.
Are the affirmative action obligations OFCCP enforces similar to the affirmative action steps taken by some educational institutions to increase the racial diversity of their student bodies?
No. While OFCCP seeks to increase the diversity of the federal contractor workforce through the variety of affirmative action obligations described above, the obligations it enforces are wholly distinct from the concept of affirmative action as implemented by some post-secondary educational institutions in their admissions processes. In contrast to the affirmative action implemented by many post-secondary institutions, OFCCP does not permit the use of race to be weighed as one factor among many in an individual’s application when rendering hiring, employment or personnel decisions, as racial preferences of any kind are prohibited under the authorities administered by OFCCP. See 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). OFCCP therefore does not permit the use of race as a factor in contractors’ employment practices to achieve diversity in the workforce, either by using race as one factor among many to achieve a “critical mass” of representation for underrepresented minorities or through direct numerical quotas or set-asides. See, e.g., Fisher v. University of Texas, 136 S. Ct. 2198, 2214-15 (2016); Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003); Regents of University of California v. Bakke, 438 U.S. 265, 324 (1978). OFCCP’s affirmative action regulations expressly forbid the use of quotas or set-asides, provide no legal justification for a contractor to extend preferences on the basis of a protected status, and do not supersede merit selection principles. See 41 CFR 2.16(e).
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Last Updated on January 07, 2021