During an on-site review, COs have the opportunity to evaluate whether the contractor made good faith efforts to remove identified barriers to EEO, expand employment opportunities and produce measurable results. COs must assess good faith efforts on a case-by-case basis, taking into account all of the relevant facts and circumstances. However, in most situations, good faith efforts will produce positive, measurable results. When a contractor’s efforts have not produced such results, COs must ask the contractor to explain the following:
- Why did the efforts undertaken not produce positive, measurable results?
- Did the contractor make additional or alternative efforts?
- If the contractor took additional or alternative efforts, and they did not produce positive, measurable results – why?
During the desk audit, COs evaluate the contractor’s past goal attainment and progress on meeting current goals, and identify any goal areas requiring further evaluation of good faith efforts. To make informed judgments about the quality of the contractor’s good faith efforts, COs must be familiar with the local area’s community resources, a list of which is maintained in each field office. COs should also be familiar with the Employment Referral Resource Directory (ERRD) maintained on the OFCCP website.109 The list of community resources may include nonprofit groups, EEO organizations, faith-based groups and caregiver support groups that can assist contractors in attaining their goals.
During the on-site review, COs explore the contractor’s good faith efforts to address all identified problem areas through interviews with contractor officials, employees and other pertinent parties.110 For each of the activities listed below, COs must identify and obtain documentation that provides evidence of the extent of the contractor’s good faith efforts.
a. Good Faith Efforts – Internal Placements. For internal placements through actions like hiring and promoting current employees, good faith may include the contractor’s efforts to address barriers to opportunities for women and minorities. Possible areas of inquiry on this point are listed below.
- Disseminating Information about Internal Opportunities. Are job openings posted? If so, are they posted where all potentially eligible employees would see them? Are all jobs posted, or only certain jobs or classes of jobs? Why? Are jobs posted promptly? Is there adequate time to apply?
- Providing Training Opportunities. Does the contractor provide apprenticeship programs? On-the-job training? Tuition reimbursement? If so, for which employees are these opportunities available? Are training opportunities provided without regard to sex, race or ethnicity? Do participation rates vary by sex, race and/or ethnicity and, if so, why?
- Providing Counseling and Encouraging Employees to Apply for Internal Openings. How does this occur? How often? What is included in the counseling or encouragement? Does the contractor periodically assess whether its efforts are successful? Are counseling and encouragement available for caregivers without regard to sex, race or ethnicity?
- Recruiting Externally into Feeder Job Groups. What recruitment efforts is the contractor making? What resources is the contractor using?
- Reviewing Selection Criteria and Selection Procedures. Did the contractor review its selection criteria and determine whether it is applying them in a nondiscriminatory manner? Do the selection criteria have a disparate impact? How does the contractor document the review? Did the contractor ensure that the officials and managers responsible for applying selection criteria and procedures are familiar with, and are implementing, the contractor’s EEO policies? Is the contractor providing training? How frequently?
b. Good Faith Efforts – External Placements. For external placement opportunities, evaluation of the contractor’s good faith efforts may include exploring the below areas.
- Recruitment Sources in the AAP. Does the contractor use the recruitment sources listed in its AAP to ensure that its recruitment will reach minorities and women? If so, when and how? How does the contractor track the results that each recruitment source yields? This inquiry includes the CO contacting at least some of the listed organizations to confirm and assess the contractor’s use of the organization as a recruitment source.
- Using Other Recruitment Sources. Does the contractor use other recruitment sources that are not listed in its AAP to ensure that its recruitment will reach minorities and women? How does the recruitment source provide assistance and support regarding caregiver issues? What are the recruitment sources? How useful have they been?
- Using the Media. How are job openings advertised? Among its advertisements, does the contractor advertise in publications or other media that are targeted to minorities and women? If so, which ones?
- Recruiting at Schools and Universities. Does the contractor’s recruitment at high schools, colleges, and universities include those that enroll large numbers of minorities and women? If so, which ones?
c. Good Faith Efforts – Applicant Flow Data. Applicant flow data may provide useful documentation about the effectiveness of the contractor’s good faith efforts, as can internal bid lists and applications for posted job openings.
- Increased Representation Rate. Does either the applicant flow data or the bid lists, or both, show an increase in previously underrepresented groups in the applicant pool? If so, for what positions did this occur?
- Decreased Representation Rate. If there are no changes, or there are decreases in representation, what alternative actions have the contractor taken or proposed to take in the future?
COs must record findings on the contractor’s good faith efforts in Part B of the SCER, and include supporting documentation and other relevant evidence in the case file. This evidence includes materials such as copies of correspondence, job orders, bid lists for posted job openings, contractor recruiting manuals, relevant pages from labor agreements, employee manuals, and summaries of conversations and interviews with contractor representatives, employees, applicants and recruitment source contacts.
109. The ERRD is available at https://ofccp.dol-esa.gov/errd/ (last checked September 10, 2019). Also, see FCCM 1B08 for a discussion of community resources.
110. See also FCCM 1L – Analysis of E0 11246 AAP: Goals Progress and Good Faith Efforts.