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Office of Federal Contract Compliance Programs
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Office of Federal Contract Compliance Programs (OFCCP)

 

Best Practices and Employment Practices To Avoid
for Construction Contractors and Subcontractors

 

To help contractors comply with the requirements discussed in the FAQs on Nondiscrimination in the Construction Trades, OFCCP offers the following recommendations for best practices that will assist construction contractors in preventing, detecting, and remedying potential discrimination in their workforces.

 

Best Practices for Detecting and Preventing Discrimination in a Construction Contractor’s Trades Workforce

One of the best ways to prevent or uncover discrimination is to regularly review data related to applicants and hires to assess whether any particular group of applicants is being disproportionately screened out at a certain stage of the process. This data should include an applicant flow log, which is a chronological list of applicants (including Internet applicants) for employment or promotion showing each individual, categorized by race, sex, ethnicity, disability, and protected veteran status who applied for each job title (or group of jobs requiring similar qualifications) during a specific period. Contractors should also ensure that employees responsible for making hiring, assignment, or promotion decisions are applying the criteria equally to all applicants or candidates. For example, if the contractor requires some of its applicants to have a certain amount of experience, that requirement should be applied equally to all groups of applicants.

Additionally, contractors should review their compensation policies to make sure employees are not subject to wage discrimination. They should also examine employee access to opportunities affecting compensation, such as: higher paying positions, job classifications, work assignments, training, preferred or higher paid shift work, access to overtime hours, pay increases, and incentive compensation.

Providing a formal anti–harassment training for all employees would also be a best practice.

 

Best Practices for Recruiting a Talented and Diverse Workforce

By using inclusive recruiting methods that reach all potential workers, contractors can both expand their applicant pools and diversify their workforces in order to find the most qualified workers.

To get the most out of their recruitment, contractors should regularly review their outreach and hiring practices to learn whether certain groups are being excluded, not just from being hired, but from even entering the applicant pool. Contractors should consider whether practices such as word–of–mouth recruiting, hiring only previous workers when new positions or opportunities for work arise, or picking up day laborers in particular locations are having an adverse impact on hiring.

Contractors should work with OFCCP, as well as local apprenticeship programs and community based organizations, to seek a diverse pipeline of qualified workers. Worker referral programs located within the same geographic area as the project can also help contractors draw from the available workers in the contractor’s recruitment area.

 

Examples of Situations to Avoid

Below are some examples of practices that have been found to be discriminatory in prior cases involving the construction industry.

  • Using a set of selection procedures, including unvalidated written and personality tests, which unfairly kept qualified minority candidates from securing jobs as apprentices and journeyworkers.
  • Failing to prevent sexual harassment, including inappropriate touching, lewd acts, sexual gestures, comments and propositions directed at female employees, and then failing to take adequate corrective action.
  • Failing to prevent racial or ethnic harassment, including the use of racial and ethnic epithets, and then failing to take adequate corrective action.
  • Terminating employees for complaining about a hostile work environment.
  • Terminating employees to prevent them from being interviewed during an OFCCP review.
  • Denying women regular and overtime work hours comparable to those of their male counterparts.
  • Failing to provide adequate restroom facilities for female employees, for example by not allowing restroom breaks or failing to furnish sanitary facilities to female workers.
  • Assigning Black employees to the most difficult, dirty, and least desirable jobs.
  • Systematically excluding Black employees from promotion opportunities.
  • Laying off Black employees after they had worked for the company for short periods of time, but retaining White employees for long–term employment.

Additionally, the use of overly subjective hiring practices can result in adverse impact, sometimes because of their capacity for masking intentional racial or other bias. These practices, therefore, should be avoided because they are easy to apply in a way that results in discrimination. Such subjective practices may include:

  • Word–of–mouth recruitment or referrals where the workforce predominantly consists of one race, sex or ethnicity.
  • Use of an “eyeball test,” where an employer looks at an applicant to determine whether that person appears to be strong.
  • Relying too heavily upon the subjective evaluations of predominantly white supervisors, especially where the supervisors are not applying other objective criteria.
  • Not posting or giving notice of hiring or promotional opportunities, vacancies and/or selection criteria, and relying too heavily on friends of supervisors or of current employees to fill positions.
  • Relying too heavily on a promotion–from–within policy where, for example, there may be far fewer minorities present in the promotion lines.