1. May an employer override an individual’s self-identification of race, gender or ethnicity based on the employer’s visual observation?
  2. How should contractors handle counting employees and/or applicants who identify as a gender other than male or female such as Gender X as is recognized in California?
  3. Does the government provide or sell publications that explain how to create an Affirmative Action Program?
  4. Will OFCCP come out to contractors’ facilities and assist them in the development of their AAPs?
  5. What is the correct procedure for a contractor to obtain the demographic information of its employees and applicants?
  6. What does OFCCP look for in a contractor’s internal audit and reporting system?
  7. As a Prime Contractor, am I required to make sure that the vendors and suppliers with whom I am doing business develop a written AAP?
  8. Under Executive Order 11246, when are federal contractors and subcontractors required to develop a written affirmative action program (AAP)?

May an employer override an individual’s self-identification of race, gender or ethnicity based on the employer’s visual observation?

No. OFCCP’s policy is that deference should be given to an individual’s self-identification and it should not be questioned or overridden by an employer based on the employer’s visual observation.

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How should contractors handle counting employees and/or applicants who identify as a gender other than male or female such as Gender X as is recognized in California?

Those contractors that must develop and maintain Affirmative Action Programs under Executive Order 11246 are required to invite all applicants and employees to voluntarily self-identify their gender (as well as their race and ethnicity). OFCCP has not mandated a particular method for a contractor to obtain information about a person's gender. If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual's data from the gender-based analyses required by OFCCP's regulations. OFCCP's FAQs specify that a contractor may not ask applicants or employees for documentation to prove their gender identity or transgender status.

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Does the government provide or sell publications that explain how to create an Affirmative Action Program?

OFCCP does not sell publications nor do the regulations require contractors to use any specific format in the development of their AAPs. However, OFCCP regulations 41 CFR 60-2, 41 CFR 60-300 and 41 CFR 60-741 outline the specific content requirement for AAPs under each program. As part of its compliance assistance initiative OFCCP has posted a sample AAP on its website, which contractors should find helpful. Also, federal contractors may contact the local District Office to make a compliance assistance appointment and/or learn about the periodic seminars that these offices conduct which are designed to share compliance assistance information with contractors and keep them informed of the latest OFCCP developments. Information on how to contact your local OFCCP District Office is located on our website.

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Will OFCCP come out to contractors’ facilities and assist them in the development of their AAPs?

Generally, OFCCP does not come out to contractor facilities. However, OFCCP conducts numerous compliance assistance seminars and other activities that include assistance on developing AAPs. Contractors can find a calendar of compliance assistance seminars. You can also contact the nearest OFCCP District Office for additional information.

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What is the correct procedure for a contractor to obtain the demographic information of its employees and applicants?

OFCCP regulations 41 CFR 60-1.12(c) indicate that for any personnel or employment record a contractor maintains, it must be able to identify the gender, race, and ethnicity of each employee and, where possible, the gender, race and ethnicity of each applicant.

OFCCP has not mandated a particular method of collecting the information. Self-identification is the most reliable method and preferred method for compiling information about a person’s gender, race and ethnicity. Contractors are strongly encouraged to rely on employee self-identification to obtain this information. Visual observation is an acceptable method for identifying demographic data, although it may not be reliable in every instance. If self‐identification is not feasible, post-employment records or visual observation may be used to obtain this information. Contractors should not guess or assume the gender, race or ethnicity of an applicant or employee.

A contractor’s invitation to an employee or applicant to self-identify his or her gender, race, and ethnicity should indicate to individuals that supplying such information is voluntary. OFCCP would not hold a contractor responsible for applicant data when the applicant declines to self-identify and there are no other acceptable methods of obtaining this information.

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What does OFCCP look for in a contractor’s internal audit and reporting system?

The internal audit and reporting system is the contractor’s way to assess the overall effectiveness of the contractor’s Affirmative Action Program (AAP) and advise senior management of the effectiveness of the AAP. The system should monitor records of all personnel activity (including hires, promotions, transfers and terminations) and compensation at all levels to ensure that non-discriminatory practices have been followed. It is suggested that reporting be performed on a periodic basis and reviewed by appropriate management. In addition, top officials should be notified of the program’s effectiveness and any recommendations for improvement.

The AAP should contain a narrative description of how the system works.

Some larger contractor establishments may find it necessary and helpful to conduct internal audits and reports more frequently (i.e., quarterly), while smaller contractors may find that an annual review is sufficient. Our regulations only require "periodic" reviews, which OFCCP has historically considered to mean at least once per AAP year.

OFCCP is working on providing self-audit guidance for contractors to enhance their internal audit procedures.

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As a Prime Contractor, am I required to make sure that the vendors and suppliers with whom I am doing business develop a written AAP?

No. You are not required to ensure that your vendors and suppliers develop and maintain written AAPs. The regulations require that each contractor and subcontractor include the EO clause in each subcontract or purchase order. Whether a vendor or supplier is subject to the written AAP requirements, would depend on, among other things, whether the vendor or supplier has a subcontract that is necessary to the performance of the Government contract, the dollar value of any such subcontract, and the number of employees in the vendor’s or supplier’s workforce.

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Under Executive Order 11246, when are federal contractors and subcontractors required to develop a written affirmative action program (AAP)?

Each nonconstruction contractor and subcontractor with 50 or more employees is required to develop a written Affirmative Action Program (AAP) for each of its establishments within 120 days from the start of the federal contract, if it:

  • Has a federal contract or subcontract of $50,000 or more;
  • Has government bills of lading which in any 12-month period total, or can reasonably be expected to total, $50,000 or more;
  • Serves as a depository of federal funds in any amount; or
  • Is a financial institution that is an issuing and paying agent for U.S. savings bonds and savings notes in any amount.

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