See “Reasonable Accommodation (Disability/Disabled Veteran),” “Reasonable Accommodation (Pregnancy)” and “Religious Accommodation.”
Active Duty Wartime or Campaign Badge Veteran
A veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the U.S. Department of Defense. See 41 CFR 60-300.2(b).
Any department, agency or establishment in the executive branch of the government, including any wholly owned government corporation, which administers a program involving federally assisted construction contracts. See 41 CFR 60-1.3.
A document filed by the Office of the Solicitor on behalf of OFCCP with the Office of Administrative Law Judges that begins an administrative enforcement proceeding under Executive Order (11246, Section 503 and/or VEVRAA).
Administrative Law Judge (ALJ)
The presiding official at an administrative enforcement proceeding under Executive Order 11246, Section 503 and/or VEVRAA. See 41 CFR Part 60-30, 41 CFR 60-1.26(b), 60-300.65(b) and 60-741.65(b).
Administrative Procedure Act
A law enacted by Congress in 1946 that establishes an administrative process that OFCCP and other federal government agencies must follow. It includes standards for rulemaking, for certain formal adjudications and for court reviews of certain administrative actions. See 5 U.S.C. 500 et seq.
An adverse impact occurs when a contractor’s use of a facially neutral policy or selection procedure (e.g., a test, an interview, a degree requirement, leave or hours policy) disqualifies members of a protected class at a substantially higher rate than others.
Though the terms “adverse impact” and “disparate impact” are sometimes used interchangeably, the Uniform Guidelines on Employee Selection Procedures (UGESP) outlined at 41 CFR 60-3.16B use only the term “adverse impact” and define it as a substantially different rate of selection in hiring, promotion, transferring, training or other employment decision which works to the disadvantage of the members of a race, sex or ethnic group identified in 41 CFR 60-3.4. See “Disparate Impact.”
A group of people sharing common traits or characteristics (e.g., the same race, sex, or ethnicity) who are the victims of systemic discrimination by a particular contractor during a specific timeframe.
Actions, policies, and procedures to which a contractor commits itself that are designed to achieve equal employment opportunity. Affirmative action obligations entail thorough, systematic efforts to prevent discrimination from occurring and to detect it and eliminate it as promptly as possible. Affirmative action obligations also require contractors to ensure equal opportunity in their recruitment and outreach efforts.
Affirmative Action Program (AAP)
A management tool designed to ensure equal employment opportunity. The requirements for affirmative action programs that satisfy Executive Order 11246, Section 503 and VEVRAA, are outlined in 41 CFR Part 60-2, 41 CFR Part 60-741, Subpart C, and 41 CFR Part 60-300, Subpart C, respectively. These include requiring a contractor to annually detail the affirmative steps it has taken and will take in the future to ensure equal employment opportunity.
American Indian/Alaskan Native (not Hispanic or Latino)
As defined by the Office of Management and Budget’s (OMB’s) Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity, a person with origins in any of the original peoples of North and South America (including Central America), and who maintains cultural identification through tribal affiliation or has community recognition as an American Indian or Alaskan Native.
Americans with Disabilities Act, as amended (ADA)(Title I)
Title I of the ADA (42 U.S.C. 12101 et seq.) prohibits private employers with 15 or more employees, state and local governments, employment agencies, joint labor-management committees, and labor unions from discriminating against qualified individuals on the basis of disability in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. Section 503 of the Rehabilitation Act and its implementing regulations apply the ADA’s nondiscrimination standards to federal contractors.
Amended Show Cause Notice (ASCN)
A letter from OFCCP issued to a contractor to modify a Show Cause Notice (SCN) that OFCCP has previously issued to the contractor as part of the same investigation or compliance evaluation. An ASCN is used when OFCCP later finds either additional unresolved violations during the investigation or compliance evaluation, or finds that some but not all violations were initially cited in the SCN in error. The ASCN identifies all the unresolved or current violations.
Nonstatistical evidence of discrimination that can help bring “the cold numbers convincingly to life,” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 (1977), by illustrating actions or behavior that support a statistical indicator or allegation of discrimination. The type of facts and information that may constitute anecdotal evidence is varied and broad. For example, it may include first-hand accounts of employees’ personal experiences with discrimination. It may also include inconsistent use of rejection reasons by the contractor to the detriment of applicants from particular groups, or evidence of rejected applicants’ excellent qualifications, as compared to mediocre qualifications of hired applicants. Anecdotal evidence is often contrasted to statistical evidence. See also “Nonstatistical Evidence” and “Statistical Evidence.”
A person who has indicated an interest in being considered for hiring, promotion or other employment opportunity. This interest may be expressed in different ways, such as by completing an application or through an oral statement, depending upon the contractor’s practice. An employee of a company may also be an “applicant” when he or she has indicated an interest in being considered for another job, promotion or employment opportunity within the company. See Question and Answer 15 in the Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the UGESP, available online at https://www.eeoc.gov/policy/docs/qanda_clarify_procedures.html. See also “Internet Applicant.”
Applicant Flow Data (Log)
A chronological compilation of applicants (including internet applicants) for employment or promotion showing each individual, categorized by race, sex and ethnic group, who applied for each job title (or group of jobs requiring similar qualifications) during a specific period. See also “Internet Applicant.”
Apprenticeship (Contractor or Industry Specific)
A system of agreement, written or implied, that uses practical experience to train a person in a recognized trade or craft following specified standards.
Armed Forces Service Medal Veteran
Any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a U.S. military operation for which an Armed Forces Service Medal was awarded under Executive Order 12985 (61 FR 1209). 41 CFR 60-300.2(c).
Asian (not Hispanic or Latino)
As defined by OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (1997), a person with origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent. This area includes, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam. Under the regulations at 41 CFR Part 60-2, the category is called “Asian/Pacific Islander.” Under the regulations at 41 CFR 60-4.3(a)1.d(iii), the category is called “Asian and Pacific Islander.”
As described in 41 CFR 60-2.14, an estimate of the number of qualified minorities or women available for employment in a given job group, expressed as a percentage of all qualified people available for employment in the given job group. The purpose of the availability determination is to establish a benchmark against which the demographic composition of the contractor’s incumbent workforce can be compared to determine whether barriers to equal employment opportunity may exist within particular job groups.
The portion of a make-whole remedy that represents the lost earnings caused by a contractor’s discriminatory employment action, practice or procedure. Lost earnings include, but are not limited to, compensation or salary, overtime, premium pay and shift differentials, incentive pay, raises, bonuses, lost sales commissions, cost-of-living increases, tips, medical and life insurance, fringe benefits, pensions, stock options and awards.
Basic Qualifications (Internet Applicant)
Basic qualifications is a key concept in the definition of an Internet Applicant. To be considered an Internet Applicant, an individual’s expression of interest in a position must indicate that “the individual possesses the basic qualifications for the position.” As used in the context of the Internet Applicant defined at 41 CFR 60-1.3.
- “Basic qualifications” mean qualifications:
- That the contractor advertises (e.g., posts on its website in a description of the job and the qualifications involved) to potential applicants that they must possess to be considered for the position; or
- For which the contractor established criteria in advance by making and maintaining a record of such qualifications for the position before considering any expression of interest for that particular position if the contractor does not advertise for the position but, instead uses an alternative device to find individuals for consideration (e.g., through an external resume database); and
- That meets all of the following three conditions:
- The qualification must be noncomparative features of a job seeker. For example, three years of experience in a particular position is a noncomparative qualification; a qualification that an individual has one of the top five years of experience among a pool of job seekers is a comparative qualification.
- The qualifications must be objective; they do not depend on the contractor’s subjective judgment. A qualification is objective if a third party, with the contractor’s technical knowledge, would be able to evaluate whether the job seeker possesses the qualification without more information about the contractor’s judgment. For example, “a bachelor’s degree in accounting” is objective while “a technical degree from a good school” is not.
- The qualifications must be relevant to the performance of the particular position and enable the contractor to accomplish business-related goals.
Black or African American (Not Hispanic or Latino)
As defined by OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (1997), an individual, not of Hispanic origin, with origins in any of the black racial groups of Africa.
Bona Fide Occupational Qualification (BFOQ)
A defense to the general prohibition of discrimination in employment on the basis of sex, religion or national origin that permits an employer to limit a particular job to members of one sex, religion or national origin group. Race cannot be used as a BFOQ.
The BFOQ defense is very narrow but has been successfully used in the sex discrimination context when privacy concerns are implicated. For example, a women’s prison may be able to demonstrate that being female is a BFOQ for the hiring of a guard to perform body searches of female prisoners.
Bona Fide Seniority, Merit or Incentive System
An employer may lawfully compensate employees differently on the basis of a bona fide seniority, merit or incentive system. A seniority system rewards employees according to the length of their employment. A merit system rewards employees for exceptional job performance. An incentive system provides compensation on the basis of the quality or quantity of production. To be a bona fide system, it must not have been adopted with discriminatory intent, it must be based on predetermined criteria, it must have been communicated to employees, and it must have been applied consistently and even-handedly to all similarly situated employees.
A defense used by an employer in a disparate impact case, i.e., when it uses an employment policy or practice, such as a selection criterion, that is facially neutral and consistently applied, but that excludes members of one group (e.g., women or African-Americans) at a substantially higher rate than members of other groups. The employer must prove that a policy or practice that has an adverse impact is job-related and consistent with business necessity. Business necessity may also have to be proven when an employer uses a qualification standard that screens out an individual because of his or her disability. OFCCP uses Title VII, UGESP and ADA standards, as appropriate, when evaluating a contractor’s assertion of a business necessity defense.
Being a working parent or another type of caregiver is not a protected characteristic under Title VII, the ADA or the laws enforced by OFCCP. However, there are circumstances in which discrimination against caregivers may constitute unlawful disparate treatment or disparate impact based on a protected characteristic such as sex or race. Discrimination against a caregiver due to his or her association with an individual with a disability may be a violation of Section 503.
Case Management System (CMS)
An OFCCP system used to track and monitor compliance evaluations and complaint investigations of establishments and functional units. Field offices have specific responsibilities to add information into this automated system. Specific instructions are found in the online CMS Manual.
Also referred to as inferential or indirect evidence. Comparative or other evidence that gives rise to an inference of discrimination. Circumstantial evidence typically involves an extra (inferential) step to conclude whether discrimination has occurred. It may include statistical evidence, suspicious or ambiguous timing, statements or behavior, or any other evidence that individually or collectively support an inference of discrimination. Compare “Direct Evidence of Discrimination.”
A complaint brought on behalf of multiple applicants or employees who have a common claim against a federal contractor.
The practice of forcing or pressuring another party to behave in an involuntary manner (whether through action or inaction) by use of threats, intimidation, or other form of pressure or force.
A nonstatistical comparison of the treatment of similarly situated individuals, or small groups of applicants or employees.
Collective Bargaining Agreement
Also referred to as “bargaining agreement” and sometimes known as a “labor-management agreement” or “union contract.” These terms refer to an agreement between an employer and a union establishing wages, hours, and other terms and conditions of employment for employees in the bargaining unit represented by the union.
Any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including, but not limited to, salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing and retirement. See 41 CFR 60-1.3.
The amount and type of compensation provided to employees or offered to applicants, and information affecting the amount and type of compensation provided or offered, including, but not limited to:
- The desire of the contractor to attract and retain a particular employee for the value the employee is perceived to add to the contractor’s profit or productivity;
- The availability of employees with like skills in the marketplace;
- Market research about the worth of similar jobs in the relevant marketplace;
- Job analysis, descriptions and evaluations;
- Salary and pay structures; salary surveys;
- Labor union agreements; and
- Contractor decisions, statements and policies related to setting or altering employee compensation.
An allegation in writing and submitted to OFCCP in writing by, or on behalf of, one or more employees (including former employees) or applicants that alleges the individual or individuals have been victims of discrimination or retaliation that is prohibited by the laws enforced by OFCCP, (i.e., Executive Order 11246, Section 503 or VEVRAA), or that the contractor is violating of one or more of these laws, or their implementing regulations.
A compliance evaluation procedure that involves a determination of whether the contractor has maintained appropriate records consistent with the regulations at 41 CFR 60-1.12, 60-300.80 and 60-741.80.
The investigation and review process used by OFCCP to determine whether a federal contractor is complying with the nondiscrimination and affirmative action employment obligations outlined in 41 CFR Chapter 60. A compliance evaluation consists of any one, or any combination of, the following investigative procedures: compliance review, off-site review of records, compliance check or focused review. See 41 CFR 60‑1.20(a), 60-300.60(a) and 60‑741.60(a).
Compliance Officer (CO)
An OFCCP employee whose primary duties typically include conducting compliance evaluations of federal contractors, investigating discrimination complaints filed against federal contractors, providing compliance assistance to federal contractors, and educating community groups and the public about the laws OFCCP enforces. As used in this Manual, all references to the term CO include any OFCCP employee that is responsible for the tasks or activities described.
A compliance review is a comprehensive analysis and evaluation of the hiring and employment practices of the contractor, any written affirmative action programs the contractor is required to maintain, and the results of the contractor’s affirmative action efforts.
Efforts between OFCCP and a contractor to resolve findings of noncompliance or discrimination, usually through a conciliation agreement. See “Conciliation Agreement.”
Conciliation Agreement (CA)
A binding written agreement between a contractor and OFCCP that details specific contractor commitments, actions or both to resolve the violations outlined in the agreement.
Any federal or federally assisted contract for the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings or highways, or other changes or improvements to real property, including facilities providing utility services.
The general physical location of any building, highway or other change or improvement to real property which is undergoing construction, rehabilitation, alteration, conversion, extension, demolition or repair; and any temporary location or facility at which a contractor, subcontractor, or other participating party meets a demand or performs a function relating to the contract or subcontract. 41 CFR 60-1.3 (defining “Site of construction”).
The construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings or highways; or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other on-site functions incidental to the actual construction. 41 CFR 60-1.3.
The involuntary resignation of an employee as a result of a contractor’s making the employee’s working conditions so intolerable that a reasonable person would have felt compelled to resign. OFCCP will find that an employee was constructively discharged in violation of Executive Order 11246, Section 503 or VEVRAA when it finds that: 1) a reasonable person in the employee’s position would have found the working conditions so intolerable as to compel resignation; 2) the contractor’s conduct created the intolerable conditions and was motivated by retaliation; or based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran; or because the individual disclosed, discussed or inquired about compensation; and 3) the employee’s involuntary resignation resulted from the intolerable working conditions.
A continuing violation may be found to exist when it is determined that multiple related actions constitute a single act of discrimination, e.g., a hostile work environment, pay discrimination, or a discriminatory policy or system. A continuing violation exists where: 1) at least one of the actions occurred within the liability period and the other actions are related or so similar in nature as to show a pattern or practice of employment discrimination, or 2) the contractor maintains a discriminatory policy or practice into the liability period. Continuing violations may be, but do not have to be, systemic.
See “Government Contract,” “Subcontract,” “Construction Contract,” and “Federally Assisted Construction Contract.”
The termination of a federal contract before its expiration date by order of the appropriate government authorities. Contract cancellation is one of the sanctions authorized, in appropriate cases, for violation of Executive Order 11246, Section 503 or VEVRAA. Compare with “Debarment” and “Contract Suspension.”
The temporary interruption of a federal contract by order of the appropriate government authorities. Contract suspension is one of the sanctions authorized, in appropriate cases, for violation of Executive Order 11246, Section 503 or VEVRAA. Compare with “Contract Cancellation” and “Debarment.”
Any department, agency, establishment or instrumentality of the U.S. (under Executive Order 11246, limited to the Executive branch), including any wholly-owned government corporation, that enters into a government contract subject to the laws enforced by OFCCP. 41 CFR 60-1.3, 60-300.2, and 60-741.2.
Unless otherwise indicated, a “prime contractor” or “subcontractor.” “Prime contractor” means any person holding a contract, or who has held a contract subject to Executive Order 11246, Section 503 or VEVRAA. “Subcontractor” means any person holding a subcontract, or who has held a subcontract subject to Executive Order 11246, Section 503 or VEVRAA. The term “first-tier subcontractor” refers to a subcontractor holding a subcontract with a prime contractor. 41 CFR 60-1.3. See “Government Contract,” “Subcontract,” “Construction Contract,” and “Federally Assisted Construction Contract.”
Corrective remedies, also called “injunctive relief,” stop the violation and protect against its recurrence. Corrective remedies vary based on the facts of each case and may include, for example, stopping the use of a discriminatory policy or practice, substituting a nondiscriminatory policy or practice, and establishing a monitoring system to ensure the nondiscriminatory policy or practice is properly implemented. Corrective remedies will, typically, be part of any complete remedy.
The geographical area, the Standard Metropolitan Statistical Area (SMSA) or non-SMSA where a federal or federally assisted construction project is being performed. See 45 FR 65976, 65984 and Appendix B-80, October 3, 1980.
Criteria Identification (also referred to as Criteria Verification)
The process of obtaining the contractor’s stated criteria for a selection decision(s) (usually through interviewing selection officials and examining any relevant contractor documents) and then determining whether the stated criteria account for or sufficiently explain the actual selection decisions.
The Davis-Bacon Act is enforced by the Wage and Hour Division of the U.S. Department of Labor. As amended, the Act requires that each contract over $2,000 to which the U.S. or the District of Columbia is a party for the construction, alteration or repair of public buildings or public works shall contain a clause setting forth the minimum wages to be paid to various classes of laborers and mechanics employed under the contract. Under the provisions of the Act, contractors and their subcontractors are to pay workers employed directly upon the site of the work no less than the locally prevailing wages and fringe benefits paid on projects of a similar character. The Davis-Bacon Act directs the Secretary of Labor to determine such local prevailing wage rates.
A declaration that a contractor is ineligible for the award of future contracts. Debarment is one of the sanctions authorized, in appropriate cases, for violation of Executive Order 11246, Section 503 or VEVRAA. Compare with “Contract Cancellation” and “Contract Suspension.”
Any failure to fulfill a requirement of the Executive Order 11246, Section 503 or VEVRAA, including any failure to comply with the implementing rules, regulations and orders of OFCCP. See “Violation.”
Direct Evidence of Discrimination
Proof of a discriminatory reason for an employment decision that does not use inference or presumption. Direct evidence of discrimination is not required for OFCCP to find that discrimination occurred.
The Director of the Office of Federal Contract Compliance Programs (OFCCP). The head of OFCCP was formerly referred to as the Deputy Assistant Secretary for Federal Contract Compliance; this previous designation still appears in some OFCCP regulations.
With respect to an individual:
- A physical or mental impairment that substantially limits one or more of an individual’s major life activities,
- A record of such an impairment; or
- Being regarded as having such an impairment.
See 41 CFR 60-741.2(g) and related definitions.
Disability-Related Question or Inquiry
It is a violation of Section 503 for a contractor to ask disability-related questions of an applicant at the pre-offer stage of the employment process, and such questions may only be asked of employees if they are job-related and consistent with business necessity. See 41 CFR 60-741.23. A disability-related question or inquiry is one that is likely to elicit information about the existence, nature or extent of a disability. This includes directly asking whether an applicant has a disability, as well as asking questions that are closely related to disability, e.g., “Do you have a disability?” “Are you able to stand and walk?” and “Will you need a reasonable accommodation to perform this job?” However, an application may ask applicants, pre-offer, to inform the contractor if an accommodation is needed for the application process. As part of the contractor’s affirmative action obligations, the contractor shall also invite applicants, pre- and post-offer, and employees to inform the contractor whether they believe that they are individuals with disabilities as defined in 41 CFR 60-741.2(g)(1)(i) or (ii).
“Disabled Veteran” means:
- A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who, but for the receipt of military retired pay, would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or
- A person who was discharged or released from active duty because of a service-connected disability.
See 41 CFR 60-300.2(i).
Disadvantaged Business Enterprise
As defined by the Small Business Administration, disadvantaged business enterprises are for-profit small businesses where socially and economically disadvantaged individuals own at least 51% interest and control management and daily business operations. African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women are presumed to be socially and economically disadvantaged. Other individuals can also qualify as socially and economically disadvantaged on a case-by-case basis.
See the definitions of “Disparate Impact,” “Disparate Treatment,” “Harassment” and “Retaliation.” Discrimination may also include failure to provide “Religious Accommodation” or “Reasonable Accommodation.”
A theory of employment discrimination that focuses on the effect of a practice or policy. Disparate impact discrimination occurs when a contractor’s use of a facially neutral policy or practice (e.g., a test, an interview, a degree requirement, a leave or hours policy) disqualifies members of a protected class at a substantially higher rate than others and is not justified by business necessity and job-relatedness (or it is justified by business necessity but there are less-discriminatory alternatives available that would meet the contractor’s need). It is not necessary to prove intent to discriminate under this theory of employment discrimination. The disparate impact theory may be used to analyze both objective and subjective selection standards. Compare “Disparate Treatment.” See also “Adverse Impact.”
Disparate treatment discrimination occurs when a contractor treats an individual or group less favorably on the basis of a prohibited factor (race, color, religion, sex, sexual orientation, gender identity, national origin, disability, status as a protected veteran, or because the individual or group of individuals has disclosed, discussed or inquired about compensation). It is necessary to prove intent to discriminate under this theory of employment discrimination, which is sometimes referred to as “intentional discrimination.” Disparate treatment may be proven using direct evidence, circumstantial evidence or a combination of both.
Geographical areas, defined along county lines by the Bureau of Economic Analysis of the U.S. Department of Commerce, that are centers of commerce and generally cover areas that include the places of work and residence for most workers. EA is an umbrella term for the Standard Metropolitan Statistical Areas (SMSA) and non-SMSAs. See “Covered Area.”
A written statement made by the contractor to commit to the principles of equal opportunity employment.
The Employer Information Report EEO-1. An annual report filed with the Joint Reporting Committee (composed of OFCCP and the Equal Employment Opportunity Commission) by certain employers, including federal contractors with 50 or more employees and a prime contractor first-tier subcontract of $50,000 or more, subject to Executive Order 11246. This report details specific information, such as the sex, race and ethnic composition of an employer’s workforce by job category. This form is also known as Standard Form 100.
The Local Union Report EEO-3. A biennial survey conducted in the even-numbered years that collects labor force data from Referral Unions subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees within 50 U.S. states and District of Columbia. The report collects information on employment totals and employees’ job category, and sex and race/ethnic groups as of December 31 of the preceding year of the survey year.
The State and Local Government Report EEO-4. A biennial report filed in the odd-numbered years that collects information from State and local governments. All States and all other political jurisdictions with 100 or more employees must file this report.
The Elementary-Secondary Staff Information Report EEO-5. A biennial report conducted in the even-numbered years that collects information from all public elementary and secondary school districts with 100 or more employees in the U.S.. The EEO-5 Report is a joint requirement of the EEOC and the Office for Civil Rights of the U.S. Department of Education.
Employee (using the “common-law agency test”)
OFCCP generally uses the “common-law agency test” for determining who is an employee under the laws OFCCP enforces. The “common-law agency test” examines the individual worker’s relationship to the contractor by assessing the following factors derived from a 1992 U.S. Supreme Court decision, Nationwide Mutual Insurance Co. v. Darden:
- The contractor’s right to control when, where and how the individual performs the job;
- The skill required for the job; the source of the instrumentalities and tools;
- The location of work;
- The duration of the relationship between the parties;
- Whether the contractor has the right to assign additional projects to the individual;
- The extent of the individual’s discretion over when and how long to work;
- The method of payment; the contractor’s role in hiring and paying assistants;
- Whether the individual’s work is part of the regular business of the contractor;
- Whether the individual is in business; and
- The provision of employee benefits to the individual.
While no one factor will necessarily be decisive, the factors that indicate the extent to which the contractor controls the manner and means of the individual’s performance of his or her work will typically be most important in the Darden analysis. The Equal Employment Opportunity Commission also relies on this test to determine whether individuals are employees for Title VII and ADA purposes.
Any person or entity that, with or without compensation, regularly works to procure employees for a contractor or to procure for individuals opportunities to work for a contractor. It also includes an agent of such a person or entity.
A contractor’s offer of employment to an individual, usually for a specific job.
Employer Identification Number (EIN)
A nine-digit number assigned to a company by the Internal Revenue Service for tax and other identification purposes.
Employment Service Delivery System (ESDS)
The Wagner-Peyser Act of 1933 established a nationwide system of public employment offices known as the “Employment Service.” As amended in 1998, the Act makes the Employment Service part of the One-Stop delivery system.
The One-Stop delivery system, also known as American Job Centers, provides universal access to an integrated array of labor exchange services so that workers, job seekers and businesses can find the services they need in one stop and frequently under one roof in easy-to-find locations. The U.S. Department of Labor’s Employment and Training Administration oversees Wagner-Peyser.
This term typically refers to an administrative or judicial action to compel compliance with Executive Order 11246, Section 503 or VEVRAA and their implementing regulations, or to compel performance of a conciliation agreement or consent decree.
Equal Employment Opportunity Commission (EEOC)
A federal agency responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant or an employee because of the person’s race, color, religion, sex, national origin, age (40 or older), disability, genetic information or participation in protected activity (e.g., filing a complaint of discrimination).
Equal Opportunity Clause
The contract clauses published at 41 CFR 60-1.4(a) and (b), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a) that are required to be included in every covered federal contract and subcontract. The equal opportunity clauses outline contractors’ responsibilities under Executive Order 11246, Section 503 and VEVRAA. The applicable equal opportunity clauses are considered to be a part of every covered contract and subcontract whether or not they are incorporated or referenced in the contract, and whether or not there is a written contract between the federal agency and the contractor. See 41 CFR 60-1.4(e), 41 CFR 60-300.5(e), 41 CFR 741.5(e).
Essential Functions (Section 503 or VEVRAA)
For purposes of Section 503 and VEVRAA “essential functions” are fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position. A job function may be considered essential for any of several reasons, including, but not limited to, the following:
- The function may be essential because the reason the position exists is to perform that function;
- The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
- The function may be highly specialized so that the incumbent in the position is hired for his or her expertise, or ability to perform the particular function.
Evidence of whether a particular function is essential includes, but is not limited to:
- The contractor’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
See 41 CFR 60-741.2(i) (Section 503) and 41 CFR 60-300.2(l) (VEVRAA).
Essential Job Functions (pay secrecy)
Essential job functions mean the fundamental job duties of the employment position an individual holds for purposes of evaluating a contractor’s “essential job functions defense” to an allegation that it discriminated against an employee because the employee discussed, disclosed or inquired about compensation (see 41 CFR 60-1.35(b)), “essential job functions” means the fundamental job duties of the employment position an individual holds.
A job function may be considered essential if:
(i) The access to compensation information is necessary to perform that function or another routinely assigned business task; or
(ii) The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
This definition of “essential job functions” may not be used in other contexts under any of the laws enforced by OFCCP. See 41 CFR 60-1.3.
A facility or unit that produces goods or services, such as a factory, office, store or mine. In most instances, the unit is a physically separate facility at a single location. In appropriate circumstances, OFCCP may consider as an establishment several facilities located at the same site or two or more sites when the facilities are in the same labor market or recruiting area. The determination as to whether it is appropriate to group facilities as a single establishment will be made by OFCCP on a case-by-case basis.
Executive Order 11246
One of the three legal authorities enforced and administered by OFCCP. Executive Order 11246 applies to federal contractors with contracts or subcontracts of more than $10,000. It prohibits these contractors from discriminating in employment based on race, color, religion, sex, sexual orientation, gender identity, or national origin; or because an applicant or employee has disclosed, discussed or inquired about compensation. The Executive Order also and requires that these contractors take affirmative action to ensure equal employment opportunity.
Executive Order 13496
Executive Order 13496 (74 FR 6107) (February. 9, 2009) requires covered contractors and subcontractors to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The notice to employees informs employees about:
- Their rights under the NLRA to form, join and assist a union and to bargain collectively with their employer;
- Provides examples of unlawful employer and union conduct that interferes with those rights; and
- It indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or to file complaints.
OFCCP assists the U.S. Department of Labor’s Office of Labor-Management Standards in enforcing Executive Order 13496.
Any government contract or subcontract that is not subject to some or all obligations under one or more of the laws enforced by OFCCP. Most contracts meeting specified dollar thresholds are covered, but there are a few exemptions and waiver provisions. See 41 CFR 60-1.3, 60-1.5 (coverage and exemptions under Executive Order 11246); 41 CFR 60-300.4 (coverage and waivers under VEVRAA); 41 CFR (coverage and waivers under Section 503).
Jobs that are exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act. The exemptions cover executive, administrative, professional, computer and outside sales employees. To qualify for an exemption, employees generally must meet certain tests regarding their job duties and be paid a prescribed minimum salary.
An employment practice or policy is facially neutral if it does not reference a protected characteristic such as sex or race. Even if a contractor’s policy or practice (e.g., excluding applicants from employment based on certain criminal conduct or lack of a high school degree) is facially neutral, if it disproportionately impacts individuals on a prohibited basis, it violates the law unless it is shown to be job-related and consistent with business necessity (disparate impact discrimination).
Family and Medical Leave Act (FMLA)
The FMLA provides eligible employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The FMLA is enforced by the U.S. Department of Labor’s Wage and Hour Division.
The group with the highest selection rate when calculating the impact ratio or level of statistical disparity or both. When calculating the impact ratio of unfavorable actions such as layoffs or terminations, the favored group is the group with the lowest selection rate.
Federal Contractor Selection System (FCSS)
OFCCP’s FCSS is a neutral selection system that identifies federal contractor establishments that may be selected for compliance evaluations. The FCSS process uses multiple information sources such as federal acquisition and procurement databases, EEO-1 employer information reports, Dun & Bradstreet data, Census data and statistical thresholds such as industry type and employee counts of federal contractor establishments.
Federally Assisted Construction Contract
Any agreement - or modification thereof - for construction work which is paid for at least in part with funds obtained from the federal government or borrowed on the credit of the federal government under any federal program involving a grant, contract, loan, insurance or guarantee; or undertaken under any federal program involving such grant, contract, loan, insurance or guarantee; or any application or modification thereof approved by the federal government for a grant, contract, loan, insurance or guarantee under which the applicant for funds itself participates in the construction work. See 41 CFR 60-1.3. For example, highways and bridges that are constructed, repaired or renovated using funds from the U.S. Department of Transportation are federally assisted construction contracts.
Any OFCCP office outside of the national office and its divisions that is responsible for the tasks or activities described in the Federal Contractor Compliance Manual (FCCM or Manual).
See “Notice of Violation of a Conciliation Agreement.”
A subcontractor holding a subcontract with a prime contractor.
An on-site review restricted to one or more components of the contractor’s organization, or one or more aspects of the contractor’s employment practices. See 41 CFR 60‑1.20(a)(4), 60-300.60(a)(4), and 60‑741.60(a)(4).
A structured program designed to develop an individual’s job-related skills and abilities. Typically, classroom training, as well as on-the-job training, falls into this category.
A method used in systemic discrimination cases for calculating a total amount of back pay for an affected class of discrimination victims that is then divided (pro rata or otherwise) among all members of that class. Compare with “Individual Relief.”
Benefits that an employer provides to employees in addition to paying their wages or salary. Examples include, but are not limited to:
- Profit-sharing and bonus plans;
- Leave (e.g., annual vacation days, personal days, sick leave);
- Stock options or awards;
- Medical, hospital, accident and life insurance;
- Long-term and short-term disability benefits;
- Severance benefits;
- Pension or other retirement benefits and early retirement incentives; and
- Other terms, conditions and privileges of employment.
Compensation for estimated future economic loss; generally, calculated based on the difference between the discrimination victim’s current pay and the pay associated with his or her rightful place had discrimination not occurred. Front pay runs from the time of the settlement (e.g., the date of the conciliation agreement), or final administrative or court order), to a certain time in the future (usually when the victim attains his or her rightful place) that is set by the settlement or final order.
Functional Affirmative Action Program (FAAP)
An AAP based on a clearly distinct functional or business unit within a corporate structure as opposed to an AAP based solely on an establishment’s physical location. A contractor wishing to develop a FAAP must first reach an agreement with OFCCP allowing it to do so. See Functional Affirmative Action Programs (FAAP), Dir 2013-01, Revision 2(06/20/2019).
See “Sex Discrimination.”
One’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth and may or may not be made visible to others.
The Standard Metropolitan Statistical Area (SMSA) or non-SMSA, as designated in the Federal Register by the Secretary of Labor, where a federal or federally assisted construction project is being performed. See 45 FR 65976, 65984 and Appendix B-80, October 3, 1980.
Goals for Minorities and Women, Supply and Service Contractors (Placement Goals)
Placement goals that contractors must establish under Executive Order 11246 for those job groups where minorities or women, or both, are underutilized. The placement goal established must be at least equal to the availability percentage of the underutilized minorities and women for the specific job group. 41 CFR 60-2.16(c); see also 41 CFR 60-2.14, 60-2.15.
Goals for Minorities and Women, Construction Contractors (Participation Goals)
Participation goals for minorities and women under Executive Order 11246, expressed as percentages of the hours worked by the contractor’s aggregate workforce, by trade, in the geographic area(s) where a federal or federally assisted construction project is located. See 41 CFR 60-4.6.
Goal for Qualified Individuals with Disabilities (Utilization Goal)
The regulations implementing Section 503 establish a utilization goal of 7% for the employment of qualified individuals with disabilities for each job group in the contractor’s workforce. Supply and service contractors use the same job groups that they use for the establishment of placement goals for minorities and women, and covered construction contractors apply the goal to the same trades they use when applying their participation goals under Executive Order 11246. Contractors with 100 or fewer employees have the option of using their entire workforce instead of job groups or trades. See 41 CFR 60-741.45.
Good Faith Efforts
A contractor’s appropriate efforts to meet its Executive Order 11246 goals by removing identified barriers, expanding employment opportunities and producing measurable results. See 41 CFR 60-2.16(a), 60-2.17(c) and 60-4.2(d)(2).
Government Contract (or Federal Contract)
A government contractor is an agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services between a contracting agency and a person. Personal property includes supplies and contracts for the use of real property (e.g., as lease arrangements), unless the contract for the use of real property itself constitutes real property (e.g., easements). Nonpersonal services include, but are not limited to: utility, construction, transportation, research, and fund depository.
Government contracts do not include:
- Agreements in which the parties stand in the relationship of employer and employee; and
- Federally assisted construction contracts.
Harassment is unwelcome conduct that is based on a protected characteristic (race, color, religion, sex, sexual orientation, gender identity, national origin, disability, status as a protected veteran, or because an individual disclosed, discussed or inquired about compensation). Harassment becomes illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision (such as the victim being fired or demoted). Examples of harassment include slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Sexual harassment may include unwelcome sexual advances, requests for sexual favors and other conduct of a sexual nature. OFCCP’s regulations prohibit harassment, intimidation, threats or discrimination because the person filed a complaint, participated in an investigation or compliance evaluation, opposed discrimination or exercised a right protected by OFCCP’s regulations.
Hispanic or Latino
As defined by OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (1997), a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.
Impact Ratio Analysis (IRA)
A method for identifying personnel activity that should be investigated further. The IRA is a comparison of the selection rates of different racial, ethnic and sex groups within an identified applicant or candidate pool. If the selection rate for one group is less than 80% of that of the group with the highest rate, then the IRA is considered adverse and further investigation or analysis is needed.
The assessment of make-whole relief for identified victim(s) of discrimination on an individualized basis. This method is generally used to calculate back pay and other make-whole relief, such as reinstatement and rightful seniority, in the individual or small group discrimination cases where the victims of discrimination, and the losses they incurred, can be determined with specificity. Compare with “Formula Relief.”
Individual with a Disability
A person with a disability. See “Disability.”
See “Corrective Remedy.”
Any individual as to whom the following four criteria are satisfied:
- The individual submits an expression of interest in employment through the internet or related electronic data technologies;
- The contractor considers the individual for employment in a particular position;
- The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and,
- The individual does not remove him or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.
Invitation to Self-Identify
An invitation by the contractor, extended to employees and applicants for employment, to voluntarily identify their race, sex, ethnicity, disability, and/or protected veteran status. All information obtained in response to invitations to self-identify as an individual with a disability or protected veteran must be kept in a confidential data analysis file under 41 CFR 60-300.42 and 60-741.42.
Any sub-unit of a workforce sector (e.g., department, job group, job title, line of progression).
Job Area Acceptance Range (JAAR)
An analytical tool used to analyze the distribution of employees in a workforce by comparing the actual percentage of minorities and women in a job area to their percentage in the relevant segment of the contractor’s workforce.
The 10 designated categories of the EEO-1 report:
- Officials and managers (divided into executive/senior level and mid/first level),
- Sales workers,
- Office and clerical,
- Craft workers (skilled),
- Operatives (semi-skilled),
- Laborers (unskilled), and
- Service workers.
A written statement detailing the duties of a particular job title.
One or more group(s) of jobs having similar content, wage rates and opportunities. If a contractor has a total workforce of fewer than 150 employees, it may use the EEO-1 categories as its job groups. See 41 CFR 60-2.12.
One who has completed an apprenticeship program or otherwise possesses the full skills and licenses of workers in his or her trade. Historically referred to as “journeyman.”
The Geographic area used in calculating availability. The area may vary from local to nationwide.
The process by which workers are removed from the active payroll to the inactive payroll.
Let or Let a Contract
The awarding of a contract to the prime contractor.
Line of Progression
A series of related jobs in a promotional sequence, generally starting with lower-paying jobs with less responsibility and progressing to higher-paying jobs with greater responsibility. Often, the lower-level jobs provide required training for movement to the higher-level jobs.
A relationship between a contractor and an appropriate recruitment or training source. Linkages may assist the contractor in its outreach and recruitment efforts, and aid in compliance with its affirmative action obligations.
Local Veterans’ Employment Representative
Local veterans’ employment representative staff performs outreach to local businesses and employers to advocate for the hiring of veterans.
Major Life Activities
A key term used in the definition of “disability.” Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. See 41 CFR 60-741.2(m).
Remedy for discrimination that restores the victim of discrimination to his or her rightful place, both economically and in terms of employment status, and benefits and privileges that he or she would have had had the discrimination not taken place. Common elements of make-whole relief include, but are not limited to, as appropriate to the facts of the case, instatement, reinstatement, back pay with interest and retroactive seniority.
Mandatory Job Listing (MJL)
A VEVRAA affirmative action obligation that requires covered contractors to list their employment openings (with limited exceptions) with the state workforce agency job bank or with the local employment service delivery system (ESDS) where the opening occurs. Contractors must provide information about the job vacancy in a manner and format permitted by the appropriate ESDS which will allow that system to provide priority referral of veterans protected by VEVRAA for that job vacancy. With their initial listing, contractors must also provide the ESDS with certain information prescribed in the regulations. See 41 CFR 60-300.5(a)2-6.
A woman’s childbirth-related absence from work that does not directly depend on her medical condition. The term includes leave for nonmedical related care and nurturing following the birth of a child.
Mega Construction Project
A large construction project spanning more than one year with a value of $25 million or more.
Minorities include individuals who are Black, Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native. As used in this Manual, the term may mean members of these groups in the aggregate or members of an individual group. See 41 CFR 60-2.11(b)(3) and 41 CFR 60-4.3(a)1d.
Minority-Owned Business Enterprise (MBE)
As defined by the Small Business Administration, a minority-owned business enterprise is a for-profit business, regardless of size, physically located in the U.S. or its trust territories, which is owned, operated and controlled by minority group members. Minority ownership must be at least 51% to qualify, whether the business is publicly or privately held. If publicly held, at least 51% of its stock must be held by minority group members.
MOU (Memorandum of Understanding)
A written agreement between two or more entities, which often serves to memorialize the intent and purpose of the parties’ working relationship.
National origin includes:
- Actual or perceived birthplace, ancestry, culture, accent or linguistic characteristics common to a specific ethnic group;
- Marriage or association with persons of a national origin group;
- Membership or association with specific ethnic promotion groups;
- Attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or
- A surname associated with a national origin group.
Native Hawaiian/Other Pacific Islander
As defined by OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (1997), a person with origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. Under the regulations at 41 CFR 60-2.11(b)(3) and 41 CFR 60-4.3(a)1.d(iii), Pacific Islanders are combined with Asians. See “Asian (not Hispanic or Latino).”
A worker added to an establishment’s payroll for the first time. Compare with “Rehire.”
A contractor’s failure to adhere to the conditions set out in the contract’s equal opportunity clauses or the regulations implementing those clauses (41 CFR Chapter 60), or failure to correct violations.
Nonstatistical evidence may include testimony about biased statements, remarks, attitudes, or acts based upon membership in a protected class; differential treatment through review of comparators, cohorts, or summary data reflecting differential selections, compensation and/or qualifications; testimony about individuals denied or given misleading or contradictory information about employment or compensation practices; testimony about the extent of discretion or subjectivity involved in making employment decisions; or other anecdotal or supporting evidence. See also “Anecdotal Evidence” and “Statistical Evidence.”
The race, ethnic or sex group(s) with the lower selection rates as compared to the group with the highest selection rate when calculating the impact ratio or the level of the statistical disparity. When calculating the impact ratio of unfavorable actions such as terminations, the nonfavored groups are those with higher selection rates. See 41 CFR 60-3.4D.
Normal Business Hours
For purposes of access to a contractor’s premises, the hours during which employees to be interviewed are at work, regardless of the time of day or night. Also used to indicate the hours during which documents, such as AAPs, are available for inspection by employees and applicants for employment.
North American Industry Classification System (NAICS)
The standardized system used by federal agencies in classifying businesses for the collection, analysis and publication of statistical data related to the business economy of the U.S. NAICS was developed under the auspices of the Office of Management and Budget, and adopted in 1997 to replace the Standard Industrial Classification (SIC) system.
Notice of Results of Investigation (NORI)
A letter from OFCCP notifying the contractor of the results of a complaint investigation, including whether the agency found any violations of Executive Order 11246, Section 503 or VEVRAA. If violations were found, the NORI details those violations and invites the contractor to join the agency in resolving the complaint through conciliation.
Notice of Violation (NOV)
A letter from OFCCP notifying the contractor that the agency has found violations of Executive Order 11246, Section 503 and/or VEVRAA during a compliance evaluation, identifying the remedies that are required to resolve those violations, and inviting the contractor to engage in conciliation to resolve them.
Notice of Violation of a Conciliation Agreement (15-Day Notice)
A letter from OFCCP informing the contractor that the agency believes the contractor has violated the terms of a Conciliation Agreement and that enforcement proceedings may be initiated unless the contractor demonstrates within 15 calendar days from its receipt of the letter that it has not violated its commitments under the agreement.
O*NET (Occupational Information Network)
An electronic database maintained by the U.S. Department of Labor’s Employment and Training Administration that classifies occupations in the U.S. economy based on their duties and commonly required qualifications.
A selection criterion is objective if it is fixed and measurable (e.g., the requirement of a high school degree rather than a “good education”). The central characteristic of an objective criterion is that it can be independently verified, i.e., different people measuring objective criteria will reach the same results. Compare with “Subjective Criterion.”
Off-Site Review of Records
An analysis and evaluation, conducted off the contractor’s premises, of the AAP(s), or any part thereof, and supporting documentation; and other documents related to the contractor’s personnel policies and employment actions that may be relevant to a determination of whether the contractor has complied with the requirements of Executive Order 11246, Section 503 and/or VEVRAA. See 41 CFR 60‑1.20(a)(2), 60-300.60(a)(2) and 60‑741.60(a)(2).
On-The-Job Training (OJT)
An employer-sanctioned training program, usually at the employer’s worksite, in which a trainee works under close supervision or with assistance, designed to teach and qualify an individual to perform a job or element(s) of a job.
A department, division, branch, section or other organizational entity of a contractor that operates as a single unit under a common head.
Pacific Islander (not Hispanic or Latino)
See “Native Hawaiian/Other Pacific Islander.”
Absence from work by a parent to care for a child.
Pattern or Practice Discrimination
Discrimination resulting from a practice or acts that are repeated, routine or of a generalized nature, for example, a practice of not interviewing male applicants for positions that involve working in small spaces. Methods of proving such discrimination vary from case to case, but often include, at least in part, statistical evidence.
Perfection (of a Complaint)
Perfection is the initial process used to determine whether OFCCP has jurisdiction over a complaint filed with the agency and should retain it for investigation. Perfection includes assessing whether a complaint is complete, whether it was filed within established timeframes and whether the allegation(s) fall within the agency’s jurisdiction (meaning that the company is a federal contractor or subcontractor and that the allegations assert a violation under the laws enforced by OFCCP). Once a complaint is perfected, it is assigned to a CO for investigation.
Any natural person, corporation, partnership, unincorporated association, state or local government; and any agency, instrumentality or subdivision of such a government. 41 CFR 60-1.3. The term also includes joint ventures under the regulations implementing VEVRAA (41 CFR 60-300.2(n)(5)) and Section 503 (41 CFR 60-741.2(k)(5)).
Person of Two or More Races (Not Hispanic or Latino)
As defined by the EEOC, for purposes of EEO-1 reports, any person who identifies with more than one race category.
A complainant may choose to have a personal representative file a complaint on their behalf or act on their behalf during the complaint process. A personal representative may, but is not required to, be an attorney. A family member, friend, co-worker, union steward or other advocates may also be a personal representative.
Practices or actions taken by management related to decisions regarding their employees (e.g., hiring, firing, layoff, promotion, transfer, demotion, compensation, salary increase, salary decrease, work assignments, benefits).
Physical and Mental Job Qualifications
Physical and mental standards that an employer requires an employee or applicant to meet to qualify for the job.
Physical or Mental Impairment
Physical or mental impairment means:
(a) Any physiological disorder, condition, cosmetic disfigurement or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine; or
(b) Any mental or psychological disorder, such as an intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
See 41 CFR 60-741.2(o).
In this Manual, placement is often used in the context of the selection or assignment of individuals for a particular job. Also see “Goals for Minorities and Women, Supply and Service Contractors (Placement Goals.)”
Predetermination Notice (PDN)
A letter in which OFCCP notifies the contractor of its preliminary finding that the contractor has engaged in discrimination. The PDN states the basis for the preliminary findings and offers the contractor the opportunity to respond.
See “Reasonable Accommodation (Pregnancy).”
Discrimination based on pregnancy, childbirth or related medical conditions, including childbearing capacity, which constitutes unlawful sex discrimination under Executive Order 11246. Contractors must treat people of childbearing capacity and those affected by a pregnancy, childbirth or related medical conditions the same for all employment-related purposes, including receipt of benefits under fringe-benefit programs, as other persons not so affected, but similar in their ability or inability to work. See 41 CFR 60-20.5.
Professed legitimate reason or motive articulated by a contractor as a cover for a discriminatory reason or motive.
Prima Facie Case
A legal term that refers to a party’s production of enough evidence to meet its burden of proof or raise a presumption unless disproved or rebutted.
Aspects of the contractor’s employment decisions, policies or practices that raise questions regarding the contractor’s compliance with Executive Order 11246, Section 503 or VEVRAA.
Progression Line Charts
Written listings of a contractor’s lines of progression. See “Line of Progression.”
Prohibited Basis or Prohibited Factor
A basis or factor prohibited by law from being used in making employment decisions. Under Executive Order 11246, as amended, the prohibited bases or factors:
- Sexual orientation,
- Gender identity, and
- National origin.
Under Section 503, the prohibited basis or factor is a disability. Under VEVRAA, the prohibited basis or factor is status as a protected veteran.
Promotable or Transferable
In the context of estimating internal availability, those employees who are currently employed in a job group or groups that serve, or could serve, as a source from which selections are, or could be, made for other job groups.
Any personnel action resulting in, for example, the movement to a position affording higher pay, greater rank, change in job title, or increase in job grade; an increase in pay, requiring greater skill or responsibility; or the opportunity to attain such. A promotion may be either competitive or noncompetitive.
Protected Group or Category
The bases on which applicants and employees are protected from discrimination in employment under the laws enforced by OFCCP (also referred to as “prohibited factors” or “prohibited bases”): race, color, religion, sex, sexual orientation, gender identity, national origin, disability and status as a protected veteran.
Any veteran who is protected by VEVRAA. To be a “protected veteran,” a veteran must meet the criteria of one or more of the following four categories:
- Disabled veteran;
- Recently separated veteran;
- Active duty wartime or campaign badge veteran; and
- Armed Forces service medal veteran.
See 41 CFR 60-300.2(q) and related definitions.
Qualified Individual (with a Disability)
An individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position the individual holds or desires, and who with or without reasonable accommodation can perform the essential functions of such position. See 41 CFR 60-741.2(r). For exceptions to this definition, see 41 CFR 60-741.3.
Race or Color
Race or color includes personal characteristics associated with a particular race, such as hair texture, certain facial features, and skin color and complexion. Race or color may also include marriage to or association with a person of a certain race or color, or association with an organization or group that is generally associated with people of a certain race or color.
Reasonable Accommodation (Disability/Disabled Veteran)
A contractor must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability. A contractor is not required to provide reasonable accommodation to an individual who satisfies only the “regarded as” prong of the definition of disability, and does not have a disability or a record of a disability.
The term reasonable accommodation means modifications or adjustments:
- To a job application process that enables a qualified applicant with a disability to be considered for the position the applicant desires;
- To the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
- That enables the contractor’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the contractor’s other similarly situated employees without disabilities.
See 41 CFR 60-741.2(s)(1). For the comparable definition under VEVRAA, see 41 CFR 60-300.2(t)(1). For examples of reasonable accommodations, see 41 CFR 60-741.2(s)(2) and 41 CFR 60-300.2(t)(2).
Reasonable Accommodation (Pregnancy)
Alternative job assignments, modified duties or other accommodations needed by employees who are unable to perform some of their job duties because of pregnancy, childbirth or related medical conditions. Contractors may be required to provide such accommodations. See 41 CFR 60-20.5(c).
Reasonable Accommodation (Religion)
See “Religious Accommodation.”
Reasonable Recruitment Area
The geographic area from which the contractor usually seeks, or reasonably could seek, workers to fill jobs within a particular job group.
The process or action by which workers are returned to active employment from layoff.
Recently Separated Veteran
Any veteran during the three-year period beginning on the date of such veteran’s discharged or released from active duty in the U.S. military, ground, naval or air service in the last three years. See 41 CFR 60-300.2(u).
Any person, organization or agency used to refer or provide workers for employment.
“Regarded As” Having an Impairment
This is one of the three prongs of the definition of “disability.” An individual is “regarded as” having a physical or mental impairment when the individual is subjected to a discriminatory action because of an actual or perceived physical or mental impairment that is neither transitory (i.e., has an actual or expected duration of six months or less) nor minor - whether or not the impairment substantially limits, or is perceived to substantially limit, a major life activity. See 41 CFR 60-741.2(v). An individual who satisfies only the “regarded as” prong of the definition of “disability” (i.e., does not also have an actual disability or a record of a disability) is not entitled to receive reasonable accommodation. See 41 CFR 60-741.2(s)(4).
A statistical analysis used to evaluate the interrelated effects of independent variables (such as education, prior experience) on a dependent variable (such as hire, compensation). Regression analyses frequently are a significant element of OFCCP’s proof used in systemic discrimination cases.
To employ a formerly employed worker after a complete break in employment status. Compare with “Recall.”
Relevant Labor Area
See the definition of “Labor Area.”
A nondiscrimination obligation of a contractor to accommodate the sincerely held religious observances and practices of its current and prospective employees. Typical religious accommodations include, but are not limited to, permitting the wearing of religious head coverings and other religious dress at the workplace, swapping employee shifts or permitting work breaks or time off to allow for religious observance, and modifying an employee’s work schedule to permit observance of the employee’s Sabbath. A contractor does not have to accommodate an employee’s religious observances or practices if doing so would cause it undue hardship. See the definition of “Undue Hardship (Religious Accommodation).”
Those minimum skills needed to perform a job satisfactorily.
Any adverse action by a contractor against an applicant or employee because he or she:
- Filed a complaint of discrimination;
- Opposed any act made unlawful under any of the laws enforced by OFCCP;
- Assisted or participated in an investigation, compliance evaluation, hearing or any other activity related to the administration or enforcement of any of the laws enforced by OFCCP; or
- Exercised any other rights under OFCCP’s laws or any other federal, state or local law requiring equal opportunity.
Adverse actions include employment actions such as termination, demotion or failure to hire. Other actions that are likely to deter a reasonable person from pursuing their rights, including threats and unjustified negative evaluations or references, may also be adverse actions.
The position, both economically and in terms of employment status (usually job position and seniority), that the victim of discrimination would have held if the discrimination had not occurred. See “Make-Whole Relief.”
Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793. One of the three legal authorities enforced and administered by OFCCP. Section 503 applies to federal contractors with a contract or subcontract of more than $15,000. However, it does not apply to federally-assisted construction contracts. Section 503 prohibits covered federal contractors from discriminating in employment on the basis of disability and requires that they take affirmative action to ensure equal employment opportunity. Covered federal contractors and subcontractors with 50 or more employees and a contract of $50,000 or more have additional affirmative action obligations that include the development of a written affirmative action program.
Length of employment as determined by the employer’s policies or the applicable collective bargaining agreement. Seniority may be defined in various terms (e.g., company seniority, facility seniority, departmental seniority). Employees may have different types of seniority for different purposes (e.g., job bidding rights governed by department seniority and leave accrual rights governed by company seniority).
An individual’s physical, romantic and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay and bisexual.
The difference between the actual number of persons in the nonfavored group who were selected for the employment opportunity at issue (hires, promotions, etc.) and the number expected to have been selected in proportion to their representation in the pool of qualified candidates, absent discrimination. This concept does not generally apply to compensation discrimination cases, which revolve around wage-setting decisions, not decisions involving job opportunities.
Show Cause Notice (SCN)
A letter from OFCCP to the contractor ordering it to provide evidence demonstrating why enforcement proceedings should not be instituted. The Show Cause Notice provides that the contractor must come into compliance within 30 calendar days or OFCCP may recommend the commencement of enforcement proceedings.
Employees are similarly situated when they are comparable on the factors relevant to the investigation or analysis, even if they are not comparable on others. Relevant factors in determining similarity may include tasks performed, skills, effort, level of responsibility, working conditions, job difficulty, minimum qualifications or other objective factors. The determination of which employees are similarly situated is case specific. Thus, employees who are similarly situated for one purpose may not be similarly situated for another.
Similarly Situated Employee Group (SSEG)
SSEGs are used in examining potential compensation discrimination. SSEGs are sometimes referred to as a pay analysis groups and are viewed by the agency as equivalent terms. An SSEG is a group of employees (potentially from multiple job titles, units, categories and/or job groups) who are comparable for purposes of analyzing a contractor’s pay practices, based on: (a) job similarity (e.g., tasks performed, skills required, effort, responsibility, working conditions and complexity); and (b) other objective factors such as minimum qualifications or certifications.
As an alternative to probability values, statisticians often express the divergence between actual and expected outcomes in units called standard deviations. The larger the difference in standard deviations, the smaller the probability that the difference is due to random chance factors alone. See also “Statistically Significant.”
Standard Form 100
See “EEO-1 Report.”
Standard Metropolitan Statistical Area (SMSA)
Statistical area that refers to a geographical region with a relatively high population density at its core and close economic ties throughout the area.
Statistical evidence means hypothesis testing, controlling for the major legitimate, nondiscriminatory measureable parameters and variables used by employers (including, as appropriate, other demographic variables, test scores, geographic variables, performance evaluations, years of experience, quality of experience, years of service, quality and reputation of previous employers, years of education, years of training, quality and reputation of credentialing institutions, etc.), related to the probability of outcomes occurring by chance and/or analyses reflecting statements concluding that a difference in employment selection rates or compensation decisions is statistically significant by reference to any one of the following equivalent statements: 1) the disparity is two or three times larger than its standard error (i.e., a standard deviation of two or more); 2) the Z statistic has a value greater than two or three; or 3) the probability value is less than 0.05 or 0.01. See also “Anecdotal Evidence” and “Nonstatistical Evidence.”
The results of statistical analyses (statistical evidence) are “statistically significant” if the probability the results occurred by chance is so small that chance can reasonably be ruled out as the cause. When the difference between actual and expected values is greater than 1.96 standard deviations, the probability the disparity occurred by chance is less than 5%. In employment discrimination cases, courts generally consider a difference of two or more standard deviations to be “statistically significant” and allow a valid statistical inference of discrimination to be drawn.
Any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):
- For the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more government contracts; or
- Under which any portion of the contractor’s obligation under one or more government contracts is performed, undertaken or assumed.
See 41 CFR 60-1.3, 41 CFR 60-300.2(x), and 41 CFR 60-741.2(x).
Any person holding a covered subcontract and, for enforcement purposes, this also includes any person who has held a subcontract subject to Executive Order 11246, Section 503 or VEVRAA. See 41 CFR 60-1.3, 41 CFR 60-300.2(y) and 41 CFR 60-741.2(y).
An employment qualification, selection standard or process is subjective if it requires judgment in its application, such that different people applying the standard would not necessarily reach the same conclusion. Whether an applicant is certified to operate a particular machine is objective; whether an applicant has “good machine-handling skills and experience” is subjective. Compare with “Objective Criterion.”
Statistical data, documentation and other materials regarding a contractor’s employment policies, practices and actions used in the development, support and justification of its affirmative action program(s), or used to assess the affirmative action program’s effectiveness.
Systemic discrimination involves a pattern or practice, policy or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area. Examples of systemic practices include: discriminatory barriers in recruitment and hiring, discriminatorily restricted access to management trainee programs and high-level jobs, exclusion of qualified women from traditionally male-dominated fields of work, and disability discrimination such as unlawful pre-employment inquiries. There is no specific numeric threshold used to define a systemic case.
Termination of Employment
Separation of an employee from the active and inactive payroll.
Terms and Conditions of Employment
All aspects of the employment relationship between an employee and his or her employer, including, but not limited to, hiring, compensation, fringe benefits, leave policies, job placement, work environment, work-related rules, work assignments, training and education, and opportunities for promotion.
A complaint filed by an individual or individuals on behalf of another individual or a group of people. See 41 CFR 60-300.61(b)(2) and 60-741.61(c)(2).
Title VII of the Civil Rights Act of 1964 (Title VII)
This law is enforced by EEOC and its principles generally apply to discrimination cases arising under Executive Order 11246. Title VII prohibits discrimination in employment on the basis of race, color, religion, national origin or sex. Title VII applies to private employers with 15 or more employees. It also generally applies to state and local government agencies, federal government agencies, employment agencies and labor unions that either operate a hiring hall or have at least 15 members.
The suspension of the running of a statute of limitations for equitable reasons. Because the Title VII 180-day limit on filing a charge with the EEOC has been held to be a statute of limitations, there have been numerous court cases discussing tolling of that limit. By comparison, the regulations for the three laws OFCCP enforces provide for the filing of a complaint within 180 calendar days (or, for VEVRAA and Section 503, 300 calendar days) of the alleged violation unless the time for filing is extended by the Director for good cause shown. There is no similar good cause language in Title VII. The good cause authority allows the Director to waive the 180-day or 300-day limit without raising questions of tolling.
Any person, organization or agency whose purpose is to train workers.
Movement (usually lateral) of an employee from one position or function to another.
Underutilization (Executive Order 11246)
When the percentage of minorities or women employed in a particular job group is less than would be reasonably expected given their availability percentage in the relevant labor pool. See 41 CFR 60-2.10(a)(1).
Undue Hardship (Disability)
“Undue hardship” is the only defense for failing to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. The employer must demonstrate that the accommodation would cause it “significant difficulty or expense” in light of its particular resources and circumstances. Undue hardship refers not only to financial difficulty, but also to reasonable accommodations that are unduly extensive, substantial or disruptive, or those that would fundamentally alter the nature or operation of the business. See 41 CFR 60–300.2(aa) and 60-300 Appendix A, and 41 CFR 60-741.2(aa) and 60-741 Appendix A. Whether an accommodation would impose an undue hardship requires a case-by-case determination. See 41 CFR 60-300.2(aa)(2) and 60-741.2(aa)(2) for factors to be considered.
Undue Hardship (Religious Accommodation)
“Undue hardship” is the defense for not providing a needed religious accommodation. To demonstrate “undue hardship” in this context, a contractor must show that providing the proposed accommodation would pose “more than de minimis” cost or burden. Costs to be considered include not only direct monetary costs, but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
Applying employment criteria or processes in the same manner to all similarly situated applicants or employees.
Uniform Guidelines on Employee Selection Procedures (UGESP)
Guidelines developed by the EEOC, U.S. Department of Justice, U.S. Department of Labor and the Civil Service Commission (now the Office of Personnel Management) to provide a single set of principles that are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of federal law prohibiting employment practices that discriminate on grounds of race, color, religion, sex and national origin. See 41 CFR Part 60-3. Under Executive Order 11246, UGESP was promulgated as regulations with the force and effect of law. UGESP does not apply to Section 503 or VEVRAA.
The demonstration of job-relatedness by showing the relationship between the selection procedure and job performance. To be validated in accordance with UGESP, the validation studies must meet the technical standards set out in 41 CFR Part 60-3.
A person who served in the active military, naval or air service of the U.S., and who was discharged or released therefrom under conditions other than dishonorable. See 41 CFR 60-300.2(cc).
Each contractor and subcontractor subject to VEVRAA is required to file the VETS-4212 report with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) on an annual basis. The report details the number of protected veterans the contractor employs, or has newly hired, by hiring location and EEO-1 job category. For more information on the VETS-4212 report, please visit https://www.dol.gov/agencies/vets/programs/vets4212.
The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212). One of the three legal authorities enforced and administered by OFCCP. VEVRAA applies to federal contractors with a contract or subcontract of $150,000 or more. However, it does not apply to federally-assisted construction contractors. VEVRAA prohibits covered federal contractors from discriminating in employment based on status as a protected veteran and requires that they take affirmative action to ensure equal employment opportunity. Federal contractors and subcontractors with 50 or more employees and a contract of $150,000 or more have additional affirmative action obligations, that include the development of a written affirmative action program.
Victim Specific Relief
See “Individual Relief.”
Failure to fulfill a requirement of the Executive Order 11246, Section 503 or VEVRAA, or their implementing regulations.
White (not Hispanic or Latino)
As defined by OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (1997), an individual, not of Hispanic origin, with origins in any of the original peoples of Europe, North Africa or the Middle East.
A position or post of duty to which one is assigned or a task one is required to perform.