3C General Principles Applicable to the Construction Industry
The equal opportunity clauses prohibit discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability and protected veteran status.186 Additionally, the clauses prohibit contractors from, under certain circumstances, taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or the pay of their co-workers. They also require that contractors take affirmative action to ensure equal employment opportunity. This section covers the use and application of the goals for the participation of minorities and females in the construction workforce, preconstruction conferences and notice of subcontract awards. The Section 503 Utilization Goal and the VEVRAA Hiring Benchmark are addressed in Section 3N.
186. 41 CFR 60-1.4(a) and (b), 41 CFR 60-300.5 and 41 CFR 60-741.5.
Goals serve as reasonably attainable objectives and allow contractors to measure progress toward achieving equal employment opportunity. They are not quotas. Failure to meet any goal, in and of itself, does not constitute a violation of the Executive Order. Contractors must demonstrate good faith efforts toward meeting their minority and female participation rate goals contained in the bid solicitation. These goals are determined by the Director of OFCCP and are issued in accordance with 41 CFR 60-4.6 by geographic area.
The participation rate goals are expressed as a percentage of the hours a contractor’s aggregate workforce worked in each trade on all construction work performed in the geographic area. A covered construction contractor must apply the participation rate goals on all of its federal, federally assisted, and nonfederal construction work. If a covered construction contractor performs work in multiple geographic areas, the contractor must make good faith efforts to achieve the goals for women and minorities in each geographic area where work is being performed.
a. Goals for Women. The current goal for the utilization of women is 6.9 percent of work hours and applies to all of a contractor’s construction sites, regardless of where the federal or federally assisted contract is performed.187
b. Minority Group Goals. The current goals for the utilization of minorities are formulated in terms of work hours performed in a specific Standard Metropolitan Statistical Area (SMSA) or non-SMSA.188 For example, ABC Company has a federal contract for construction work in SMSA X. The goals for SMSA X apply to all of ABC’s construction work in SMSA X, both the federally involved and the nonfederally involved construction work. In addition, if ABC Company performs construction work in SMSA Y, it would apply the SMSA Y goals to all its construction work in SMSA Y, whether or not it had a federal or federally assisted contract in SMSA Y.
187. This goal was originally published in the Federal Register of April 7, 1978, 43 FR 14899, 14900, as Appendix A. This goal was extended indefinitely based on a notice published in the Federal Register on December 30, 1980. See 45 FR 85750, 85751 (Dec. 30, 1980).
188. 45 FR 65979, 65984, Appendix B-80 (Oct. 3, 1980).
Contracting and administering agencies may use preconstruction conferences to discuss any aspect of the contractual requirements of a project including EEO. OFCCP regional, district or area office staff may participate in these conferences at the invitation of the contracting agency. The contracting agency reviews the construction contractor’s nondiscrimination and affirmative action obligations, including applicable minority and female participation rate goals for the geographical area in which work is to be performed, and the contractor’s reporting and recordkeeping requirements necessary to demonstrate compliance. COs may also send out a letter to summarize EEO obligations enforced by OFCCP and to offer compliance assistance for new construction contractors.189
189. See Letter L-10 – Construction Outreach for New Projects.
The Notice explained in Section 3B01190 requires the contractor to notify the Director of OFCCP of the name, address, telephone number and employer identification number of each subcontractor; the name, phone number, and email address of the contractor representative submitting the notification; the prime contract number; the estimated dollar amount of the subcontract; its estimated starting and completion dates; and the geographical area (SMSA or non-SMSA) in which the work is to be performed. This notice must be in writing and provided within 10 business days of the award of a subcontract in excess of $10,000.
190. See 41 CFR 60-4.2(d).