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OFCCP’s Technical Assistance Guide, Part 2: Two General Rules

by | February 24, 2021

As mentioned in our previous blog, the Office of Federal Contract Compliance Program’s (OFCCP) Technical Assistance Guide (TAG) for supply and service contractors and subcontractors provides valuable insights for federal contractors. In this blog post, we will cover two general rules contractors and subcontractors must follow:

1. Do not discriminate against applicants or employees based on any of the categories protected by the [federal affirmative action] laws.
2. Take affirmative action: (a) To ensure equal employment opportunity without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin; (b) To employ and advance in employment qualified individuals with disabilities and qualified protected veterans.

Supply and Service Contractors Technical Assistance Guide, page 4

Do Not Discriminate

The first of the two general rules federal contractors and subcontractors must follow prevents discrimination against applicants or employees, a requirement the TAG says “lies at the core of OFCCP’s laws.” Discrimination against applicants and employees is banned based on the following classifications:

  • Race
  • Color
  • Religion
  • Sexual Orientation
  • Gender Identity
  • National Origin
  • Protected Veteran Status
  • Disability

It is also unlawful to discriminate against applicants or employees for discussing, disclosing, or inquiring about compensation

Disparate Treatment and Disparate Impact

The TAG provides insight as to how unlawful employment discrimination may occur. Discrimination may involve an individual or it may be involve a group of individuals who share a common protected characteristic. Additionally, it may involve an intentional act or a neutral policy or practice that unintentionally affects a class of individuals.

Discrimination that occurs through an intentional act is called disparate treatment discrimination. Several examples of disparate treatment the TAG provides are harassment of an employee because of sexual orientation, refusal to hire a transgender applicant, or the promotion of members of a particular race into higher-paying positions.

Discrimination can also occur when a neutral policy or practice negatively affects members of a particular protected class even when no intention to discriminate exists. If there is no business necessity for such a policy or procedure, there may be discrimination. This type of discrimination is referred to as disparate impact discrimination. The TAG provides the following examples of disparate impact discrimination:

  • A company screens out a disproportionate number of female applicants with strength or agility requirements that exceed the actual requirement necessary to perform the job.
  • A company relies on “word-of-mouth” recruitment or “tap-on-the-shoulder” promotions that disproportionately affect members of a particular racial group.

Pay Transparency

Executive Order 11246 also seeks to promote pay transparency by banning policies that punish employees for discussing pay. Employees and applicants are allowed to discuss, disclose, and inquire about their compensation, with two exceptions. The first exception is that federal contractors may take action against an employee who violates a general “workplace rule” that is applied uniformly and consistently. However, this workplace rule cannot prohibit employees or applicants from discussing compensation. (The TAG is not particularly clear on how this exception would be applied.)

The second exception is that federal contractors may take action against an employee who has access to compensation information for other employees as part of their essential job functions. Such an employee may be disciplined for disclosing this information to an individual who did not have access to it. The TAG notes that there are situations where this exception does not apply.

Take Affirmative Action

The second of the two general rules federal contractors and subcontractors must follow is to take affirmative action. There are two main components in the requirement to take affirmative action. When an organization has 50 or more employees and meets specific contract amount thresholds, it is required to develop and maintain written affirmative action programs (often referred to as affirmative action plans or AAPs). AAPs are management tools that require the establishment of certain policies, practices, and procedures. The AAPs are used to ensure that all qualified applicants and employees receive equal opportunity in recruitment, selection, advancement, and other benefits and privileges of employment. The required elements in the AAPs that must be developed will be covered later in this series of blog posts.

Required Postings, Listings, and Notices

The second component regarding the requirement to take affirmative action is publishing and posting notices and policies that show an employer’s commitment to equal employment opportunity. The following examples of required postings, listings and notices are included in the TAG:

  • EEO is the Law poster and poster supplement
  • Pay transparency nondiscrimination notice
  • Notice to any union with which an employer has a collective bargaining agreement
  • Notice to job seekers that the federal contractor is an equal opportunity employer
  • Notice by federal contractors to their subcontractors about the nondiscrimination and affirmative action obligations of subcontractors
  • Notice to employees and applicants that the AAPs for individuals with disabilities and protected veterans are available for review
  • Notice to the relevant employment service delivery system of an employer’s status as a federal contractor

Next in This Series…

In the next part of this series, we will focus on a critical component of the two general rules: the required postings, listings, and notices discussed above.