1F Review of an Executive Order AAP and Itemized Listing Data for Acceptability

An organizational profile is a depiction of the staffing pattern within an establishment. Contractors must use either a workforce analysis or an organizational display as its organizational profile.

a. Workforce Analysis. Under 41 CFR 60-2.11(c), a workforce analysis is acceptable if it:

• Contains a listing of each job title as it appears in applicable collective bargaining agreements or payroll records within each department or other similar organizational unit including the unit supervisor, ranked from the lowest-paid to highest-paid (or highest to lowest); and
• Provides a separate listing for each work unit or line of progression including the unit supervisor when there are separate work units or lines of progression within the department or organizational unit.

In addition, the workforce analysis must include information by job title, wage rate, department and/or organizational unit and lines of progression. Below is a description of each of these elements.

• Information by Job Title. Each job title listed shows the total number of people in the job title, the total number of men and women, and the total number of men and women in each of the races and ethnic groups identified in 41 CFR 60-2.11 or in the current EEO-1 report.30 The list must include all job titles, including managerial job titles. Upper management positions located in the establishment must be included in an establishment’s workforce analysis, even though the managers may have been chosen by those outside the establishment and included for goal-setting purposes in a corporate or mid-level AAP.31
• Wage Rate. The wage rate or salary range for each job title must be provided, although this information may be coded. Titles must be listed from the lowest-paid to highest-paid. Contractors must provide the key to wage rate or salary range codes if they are used. The codes must be consistent across department or unit lines. For example, a job with a salary code 1157 in Department A pays the same as one coded 1157 in Department B. The codes must also be consistent in wage rate or salary range order within each department or other similar organization unit. Finally, the contractor’s submission should include a list of the codes used in wage and salary order with the lowest and highest codes labeled appropriately.
• Departments or Organizational Units. The departments or organizational units, or both, used in the workforce analysis must be identifiable and should reflect the contractor’s organizational structure. If the contractor provides an organizational chart as part of the supporting documentation, the CO will compare it to and match it with the units used in the workforce analysis.
• Lines of Progression. Lines of progression or usual promotional sequences show the order of jobs in the line through which an employee moves to reach the top of the line. Lines of progression or promotional sequences can be identified from collective bargaining agreements, as well as from organizational charts. If the CO determines that lines of progression exist but adequate information is not provided at the desk audit, the CO will contact the contractor to request a prompt submission of the information.

b. Organizational Display. An acceptable organizational display is one that meets the requirements of 41 CFR 60-2.11(b). It must contain the following elements for each unit:

• Name of the unit;
• Job title, gender, race and ethnicity of the unit supervisor (if the unit has a supervisor);
• Total number of male and female employees in the unit; and
• Total number of male and female employees by racial or ethnic groups.

A job group analysis is acceptable if it meets the requirements of 41 CFR 60-2.12. Each job group must be a group of jobs and/or job titles within a particular establishment having similar content, wage rates and opportunities.

a. List of Titles in Each Group. In order for COs to assess job group acceptability, the AAP must include, for each job group, a listing of the job titles that make up that group. If a contractor did not provide the lists, the CO must immediately contact the contractor and request that the lists be promptly provided for the desk audit.

b. Criteria for Acceptability. The following criteria are to be used in assessing the acceptability of job groups:

• Similar Work Content. Similarity of work “content” refers to the duties and responsibilities of the job titles that make up the job group.
  • Appropriate EEO Category. The CO will review the establishment’s job titles that make up each of the job groups to verify they are within the proper EEO-132 job categories. Job titles in each job group must, as a general rule, be within the same EEO-1 job category.33
  • Use of Occupational Information Network (O*NET). The CO may refer to the U.S. Department of Labor’s Employment and Training Administration’s O*NET database, as well as collective bargaining agreements, organizational charts and other data provided by the contractor to evaluate how the contractor formulated its job groups. O*NET lists standard job titles for most positions and codes them based on their duties, requirements and other factors. O*NET also gives descriptions of job duties and commonly required qualifications.
• Similar Rates of Pay. COs must review pay rates in conjunction with job content. Large apparent differences in pay among job titles within a job group or different locations within an organization, or both, suggest an unacceptable job grouping. They may also indicate areas where compensation or job assignment practices need further review.
• Similar Opportunities. “Opportunity” refers to the ability to take advantage of training opportunities, transfers, promotions, mobility to desirable wage or salary situations and other employment benefits. Most often, it refers to upward mobility. Ideally, each job within a job group should offer the same opportunities as any other job within that job group.
  • Jobs in Separate Unions. Jobs groups should not group together jobs from separate unions or jobs from different departments where interdepartmental mobility is not available. For example, job groups should not normally group together nonunion clerical jobs and clerical jobs that are covered by a collective bargaining agreement.
  • Jobs in Lines of Progression. Contractors should separate jobs that are in lines of progression from those that are not. When transferring or hiring into jobs above entry level is rare, COs must analyze each line of progression separately. When there are lines of progression governed by strict seniority, the contractor should consider the job titles in the progression as a single job group.

c. Job Groups Must Not Obscure Underutilization. Job groups that combine jobs with different content, wages or opportunities may obscure underutilization and OFCCP does not accept them.

d. Effect of Size of Contractor’s Workforce. While assessing the acceptability of a contractor’s job groups, COs must remember that the size of the contractor’s workforce is a major factor in determining how well the contractor meets the three criteria for the acceptability of job groups.

• Job Groups Must Permit Meaningful Analyses. Job groups should have enough incumbents to permit meaningful utilization analyses and goal setting. Optimally, when COs identify underutilization in a job group, the job group should be large enough so that a goal of at least one whole person can be established. No minimum size is established for this purpose because the goal is dependent on the size of the job group, and the percentage and the number of minorities or women already in the job group.
• Job Groups Should Not Normally Cross EEO-1 Job Categories. A contractor’s job groups should not ordinarily cross EEO-1 job categories. This means, for example, that a job group should not consist of a mixture of job titles from the “Professional” category and the “Technicians” category. COs should note that larger contractor establishments may have multiple job groups that fall into the same EEO-1 job category. Also, COs should note that smaller establishments (fewer than 150 employees) may use the EEO-1 job categories as their job groups.

e. Relationship Between Job Groups and Availability. The organization of jobs into groups should allow contractors to tie specific jobs to availability statistics to assess the degree to which their workforce representation approximates availability.

The utilization analysis is a series of separate but interrelated analyses COs use to identify whether a contractor employs minorities or women in the workforce at a rate that would be expected based upon their availability for employment. Contractors must perform a utilization analysis that includes the placement of the contractor’s employees into job groups, the determination of the availability for the employment of minorities and women, and a comparison of their incumbency in the job groups to their availability. If a contractor’s utilization analysis reveals the underutilization of minorities or women, or both, in any of the job groups, the contractor must establish placement goals designed to cure the underutilization.

a. Placement of Incumbents in Job Groups. Having combined the job titles for the job group analysis, the contractor must separately state the percentage of minorities and the percentage of women employed in each job group.

b. Determining Availability. After aggregating individual job titles into job groups, the contractor must determine the availability of women and minorities for those job groups. “Availability” is a percentage estimate of the women and minorities in the reasonable recruitment area who have the skills required to perform the jobs within the job groups compared to all. When determining availability, the contractor must separately determine the availability of minorities and women for each job group, and consider at least the following factors:

• The percentage of minorities and women with the requisite skills in the “reasonable recruitment area,” sometimes referred to by COs as “external availability.” We define “reasonable recruitment area” as the geographical area from which the contractor usually seeks, or reasonably could seek, workers to fill the positions in question. When selecting the reasonable recruitment area, the contractor must not select an area in such a way that it would exclude minorities or women. For each job group, the contractor must identify and provide a brief explanation of the rationale for the selection of that recruitment area.
• The contractor should utilize the most current and discrete statistical information available to derive availability figures (such as census data, data from local job service offices, colleges and other training institutions). When evaluating the contractor’s availability information, COs must utilize the most recent EEO Tabulation (EEO Tab).34
• The percentage of minorities and women among those promotable, transferable or trainable within the contractor’s organization, is sometimes referred to by COs as “internal availability.” The contractor must not define the pool of promotable, transferable and trainable employees in such a way as to exclude minorities or women. For each job group, the contractor must identify the pool of promotable, transferable and trainable employees, and provide a brief explanation of the reason for the selection of that pool.
• Though not required, some contractors assign a percentage or “weight” for availability rates of employees recruited into the job group. For example, if there are several job titles in the job group, and the job titles have differing availability rates, the contractor may weight each job title differently when determining the availability for the job group as a whole. In that instance, the sum of the weighted availability estimates for all job titles in the job group must be the composite availability for the job group.35 A contractor may also choose to determine availability by weighing the internal and external availability for a particular job group. In that example, the availability would be a sum of the external availability and internal availability rates.

c. Comparing Incumbency to Availability. The contractor must compare the utilization of minorities and women in each job group with their estimated availability, and identify job groups where the percentage employed is less than would be reasonably expected, given their availability.

We use the term “underutilization” to refer to the presence of fewer minorities or women in a particular job group than would reasonably be expected, given their availability. Contractors use a number of methods to determine whether the representation rates of minorities and women are lower than would reasonably be expected. Some contractors declare underutilization when there is any difference between the availability percentage and the utilization percentage, while others conclude that underutilization exists when the number of minority or women incumbents in a particular job group is at least one whole person lower than the number predicted by the availability percentages. Other contractors use a general “80%” rule and declare underutilization only when the representation of minorities or women is less than 80%of availability (which is the expected representation). Still others test whether the difference between the actual and expected representation of minorities and women is statistically significant.

While contractors may choose any of these methods for comparing incumbency and availability, they must uniformly apply the same standard to all job groups, as appropriate. Occasionally, a different method may be more appropriate to determine underutilization. For example, in some instances it may not be reasonable for contractors to use the two standard deviation method. No matter the method used, the contractor should be able to explain why it selected that method. Contractors should not use more than one method so as to mask underutilization.

The contractor must establish a placement goal if the percentage of women or minorities, or both, employed in a specific job group is less than would be reasonably expected, given their availability percentage in that particular job group.

Regardless of the method employed to determine underutilization, the contractor must establish a placement goal for each job group where minorities or women, or both, are underutilized.36 The placement goal established must be at least equal to the availability percentage of the underutilized minorities and women for the specific job group.37 The contractor may establish a goal higher than required under the Executive Order. Placement goals are not rigid and are not quotas.

Contractors are generally required to set a single goal for all minorities when minorities as a whole are underutilized. However, in the event of a substantial disparity in the utilization of a particular minority group, or the utilization of men or women of a particular minority group, the contractor may be required to establish separate goals for those groups.38

This subsection, focusing on 41 CFR 60-2.17, covers the designation of responsibility for the AAP, identification of problem areas, creation of action-oriented programs, reporting system and internal audit, and reviewing the results of the report.

a. Designation of Responsibility. Under 41 CFR 60-2.17(a), contractors must provide for the implementation of EEO obligations and the AAP by assigning responsibility and accountability to an official of the organization. These officials must have sufficient authority and resources, and must also have the support of, and access to, top management to ensure the effective implementation of the contractor’s EEO obligations and AAP. To be acceptable, the AAP should contain, at a minimum, a narrative description of the positions or job titles, or both, that the contractor designates to direct or manage its AAP and a description of the incumbent’s duties.

b. Identification of Problem Areas. 41 CFR 60-2.17(b) requires that contractors perform an in-depth analysis of their total employment process to determine whether or where impediments to EEO exist. They must evaluate the following.

• Organizational Structure. The contractor must examine its workforce by organizational unit and job group to determine whether there are problems of minority or female utilization, or of minority or female distribution.
• Personnel Activity. The contractor must examine applicant flow, hires, recruitment, referral, terminations, promotions, transfers and other personnel activities to determine whether there are selection and termination disparities.
• Compensation. The contractor must determine whether there are gender, race or ethnicity disparities in its compensation system.
• Personnel Procedures. The contractor must determine whether its selection, recruitment, referral, and other procedures result in disparities in the employment or advancement of minorities or women and their resulting pay.
• Other Areas. The contractor must evaluate any other areas that might affect the success of the AAP. Examples include seniority practices, leave policies, time off policies, policies regarding part-time work, the conduct of company-sponsored social events, apprenticeship program practices, workforce environment, and compliance with posting and union notification requirements.

c. Action-Oriented Programs. 41 CFR 60-2.17(c) requires that contractors develop and execute action-oriented programs designed to correct problem areas and to attain established goals and objectives. To be effective, contractors must ensure that their action-oriented programs consist of more than following the same procedures that previously produced inadequate results. Action-oriented programs should be “specific” and “result-oriented.”

By “specific,” OFCCP requires that the programs describe in some detail what action the contractor will take, who is responsible for taking the action and when the action will be accomplished. “Result-oriented” programs are those where proper execution of the program will likely lead to an increase in minority or female participation, or both, in the department, job group, training program or other identified problem area. The action-oriented programs must be sufficient, if successfully implemented, to achieve their stated objectives. Contractors must describe these programs in the AAP.

For example, if a contractor identifies a lack of women in a job as a problem area, the contractor should also identify the reasons for the absence of women. The reasons identified could include the rigid work hours, the impact or application of leave policies, the lack of recruitment, the lack of training, the absence of a career path or ladder leading to the job, a working environment hostile to women or hiring discrimination. To remedy an identified problem area, the contractor should establish action-oriented programs to eliminate or minimize the reasons women are adversely affected. The action-oriented programs, when fully implemented, should result in an increase in the representation of women in the job identified as a problem area.

d. Internal Audit and Reporting System. 41 CFR 60-2.17(d) requires contractors to design and implement an internal auditing system that periodically measures the effectiveness of its total AAP. This system must be detailed in the AAP, and the internal audit and reporting system must:

• Monitor Records. The internal audit and reporting system must monitor records of all personnel activity, including referrals, placements, transfers, promotions, terminations and compensation, at all levels.
• Require Internal Reporting. The contractor produces an internal report on the effectiveness of the AAPs on a regularly scheduled basis. While the regulations do not specify a particular time period, the reports must be produced on a scheduled basis.
• Review Report Results. Top management is advised of the program’s effectiveness and any deficiencies, and management at all levels reviews the results of these reports.

The AAP should contain a narrative description of every aspect of the internal audit and reporting system. This description should specify the frequency of reports and audits. It should also state that, as problems are discovered, the contractor is taking the necessary corrective actions. The description should also designate the contractor officials responsible for taking these corrective actions. Lastly, the contractor should state how and when it reviews program results and effectiveness with management at all levels of the company.

Contractors must submit data and information on the results of their immediately preceding AAP, as well as submit data and information on their current year AAP if they are six months or more into the current year by the time they receive their Scheduling Letter.39

COs request the AAP data and information using the Itemized Listing that accompanies the Scheduling Letter. Several items on the Itemized Listing specify that if the contractor is six months or more into its current AAP year when the listing is received the contractor will provide OFCCP with updated data for the current AAP year. For each of these items, the contractor should provide OFCCP with as much current AAP year data as it has. This means, for example, that if the contractor is six months into its current AAP year, it should provide six months of additional data; if the contractor is seven months into its current AAP, it should provide seven months of data; and if the contractor is 10 months into its current AAP, it should provide 10 months of data.

The Itemized Listing requests data and information indicating the numerical and other results of contractors’ affirmative action goals for each job group for the current and preceding AAP years, as well as employment activity data (i.e., applicants, hires, promotions and terminations) and employee-level compensation data. It also requests copies of the contractor’s EEO-1 reports for the last three years and a copy of the contractor’s collective bargaining agreement, if applicable, including documents that implement, explain or otherwise elaborate on the provisions of the collective bargaining agreement.

a. Data on Affirmative Action Goals. As noted above, the contractor must provide information indicating the numerical results of affirmative action goals set for each job group in their immediately preceding AAP and, where applicable, results on goals set for their current AAP. For each goal not attained, or not currently being attained, contractors must describe the good faith efforts they have undertaken to achieve the goal. Provided they make good faith efforts, contractors will not be held in violation for failure to achieve the goal. Contractors should always submit goal data for the immediately preceding AAP unless they were not federal contractors covered by 41 CFR Part 60-2 during the preceding AAP year.

• Information on Job Groups with Goals. COs, in order to measure the results of goals, must first know whether a contractor established goals for its job groups and what the goals are. The contractor’s current AAP submitted for desk audit will have this information for the current year. The contractor’s report on whether it attained the goals set in the immediately preceding AAP should specifically state the goals for that prior year; however, when it does not, the CO must request a copy of the goals section of the contractor’s immediately preceding AAP.
• Information on Placements into Job Groups with Goals. Since contractors establish annual goals in terms of a percentage placement rate, evaluation of progress toward the goals requires knowledge of the total number of placements into the job groups (hires, promotions and transfers) and the number of minority and female placements, as appropriate. If a contractor’s progress report does not include this information or if it includes incomplete information (e.g., the number of minorities and females but not total placements), the CO will determine if the missing information can be obtained from the contractor’s submission of personnel activity data. If the information cannot be obtained from the personnel activity data, the CO must ask the contractor to forward a copy of the report on the progress made toward its goals as prepared under its internal audit and reporting system.40 If the contractor employs 100 or more people, a copy of the underlying data it used for its adverse impact determinations on hires, promotions and any other placements into job titles within the job group should be requested.41
• Good Faith Efforts. When a contractor’s goals report does not describe its good faith efforts to achieve the goals that it failed to meet, or does not describe those efforts in sufficient detail for a CO to evaluate their adequacy, the CO must request additional information to review during the desk audit.42 The CO must also include this request for more information in the On-Site Plan for evaluation of good faith efforts. Even if the contractor corrects the goals report, the closure letter may identify the incorrect or incomplete report as a technical violation that was corrected during the review.43

b. Review of Employment Activity Data for Acceptability

• Data Format. To be acceptable for the desk audit, the contractor must present Itemized Listing data either by job group or by job title. For example, data by total workforce is not acceptable; nor is data by EEO-1 job category, unless a category legitimately constitutes a job group at the particular establishment or the contractor has fewer than 150 employees.
• Information Included. For each job group or job title, Itemized Listing data in each major personnel activity area (e.g., applicant flow, hires, promotions and terminations) must at least include the total number of actions, the total number of actions for women and the total number of actions for minorities. For example, applicant flow for a job group or job title must include at least the total applicants, total female applicants and total minority applicants; hires for a job group or job title must include at least the total hires, total female hires and total minority hires.
• Evaluation Period Covered. It is generally better to have the longest possible period because the data are more likely to reflect the contractor’s usual way of operating. At a minimum, however, the Itemized Listing data must cover the immediately preceding AAP year and, if the contractor is six months or more into its current AAP year when it receives the Scheduling Letter, the current AAP year. If there are indicators of a violation, the evaluation period will extend to cover the two years before the contractor’s receipt of the Scheduling Letter, as long as the contractor was covered by 41 CFR Part 60-2 during that period. To fully investigate and understand the scope of potential violations, the CO may need to examine information relating to periods after the date of the Scheduling Letter to determine, for example, if violations are continuing or have been remedied. If the CO believes it is necessary to request information for periods after the date of the Scheduling Letter, the CO must discuss the issue with his or her supervisor.
• Source of Applicant Data. COs must determine if a contractor used the internet to recruit for any job group(s). When the AAP does not readily specify the applicant pool for job groups in which individuals applied through the internet, the CO must contact the contractor to request the criteria used by the contractor in defining applicants for the job position(s) in question. The contractor’s submission should address the following four questions:
  • Did the individual express an interest in employment through the internet or related electronic data technologies?
  • Did the contractor consider the individual for employment in a particular position?
  • Did the individual’s expression of interest indicate that the individual possesses the basic qualifications for the position?
  • Did the individual at any point in the contractor’s selection process, before receiving an offer of employment from the contractor, remove him or herself from further consideration or otherwise indicate that he or she was no longer interested in the position?

To be acceptable, the contractor must identify the electronic data technologies used to collect expressions of interest, the specific job positions for which the contractor considered applications through the internet and the basic qualifications for these positions. COs will note unacceptable submissions in Part B.II of the SCER, and investigate during the on-site review.

c. Review of Employee-Level Compensation Data. The Itemized Listing requests data regarding the contractor’s compensation, including employee-level compensation information and policies related to compensation practices.

• Data Format. The contractor should electronically submit all of the compensation data requested, if the data is computerized. The data must also be contained within a single file.
• Information Included. The CO must review the data to ensure it includes compensation, gender, and race/ethnicity information, and hire date for each employee, as well as job title, EEO-1 category and job group. Compensation includes base salary and/or wage rate, and hours worked in a typical workweek. Other compensation or adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay or overtime should be identified separately for each employee. Data should be present for all employees, including full-time, part-time, contract, per diem or day labor, and temporary employees, as of the date of the workforce analysis in the contractor’s AAP.

Additional data that may be included are data on factors used to determine employee compensation such as education, experience, duty location, performance ratings, department or function, and salary level/band/range/grade. Documentation and policies related to compensation practices of the contractor should also be included in the submission, particularly those that explain the factors and reasoning used to determine compensation.

• Time Period of Data. The CO must verify that the “snapshot date” for employee-level compensation data is the same as the date for the organizational display or workforce analysis submitted by the contractor.

d. Action When Data Are Unacceptable. If employment activity or compensation data are submitted but not acceptable, COs must call the contractor and request that the appropriate changes are promptly made and the data resubmitted within the timeframe specified by the OFCCP field office. If, at the end of the allotted timeframe, the data are not received in an acceptable form, COs will recommend issuing an SCN specifying the regulatory sections the contractor violated.

Examples of unacceptable data submissions include, but are not limited to, instances where the data are in aggregations larger than job group or are not provided by sex, or by racial or ethnic category.