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OFCCP’s Technical Assistance Guide, Part 6: Invitation to Self-Identify

by | March 23, 2021

In this installment of our blog series regarding the Office of Federal Contract Compliance Program’s (OFCCP) Technical Assistance Guide (TAG) for supply and service contractors and subcontractors, we are reviewing the requirements to invite applicants and employees to self-identify as members of a protected class. We will focus on the requirements regarding the collection of demographic information from applicants and employees using an invitation to self-identify.

Invitation to Self-Identify

As part of their record keeping obligations under Executive Order 11246, federal contractors are required to solicit information from applicants regarding race, ethnicity, and gender. OFCCP has offered the following guidance in this regard:

  • Collect demographic information early in the application process.
  • Solicit demographic information from all applicants, stating that submission of this information is voluntary.
  • Give all applicants the same opportunity to provide demographic data.
  • Preserve all demographic data, including information gathered from social and professional networking websites.
  • Use post-employment records or visual observation when an individual declines to self-identify.

OFCCP notes in this section of the technical assistance guide that the federal affirmative action regulations require contractors to use different race/ethnicity categories than those used in the EEO-1 Report. However, OFCCP does not cite contractors for non-compliance if they collect race/ethnicity information according to the race categories associated with the EEO-1 Report.

Federal contractors and subcontractors covered under Section 503 of the Rehabilitation Act (Section 503) are required to invite applicants to self-identify their disability status. Employers covered under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) are also required to invite applicants to self-identify their status as a protected veteran. Applicants must be provided with an opportunity to self-identify disability and protected veteran status both at the pre-offer and post-offer stages of the selection process. Demographic data related to disability and protected veteran status must be maintained in a file separate from medical and other personnel files.

Self-Identification Forms

The TAG does not discuss anything about specific forms to use for self-identification purposes. However, OFCCP’s regulations make it clear that employers MUST use a form developed by OFCCP whenever applicants or employees are asked to provide information about disability. OFCCP has FAQs regarding the use of this form. These FAQs make it clear that employers cannot make substantive changes to the form. OFCCP’s regulations regarding VEVRAA have certain requirements regarding information to be contained in self-identification forms. However, OFCCP has developed no specific form that must be used to collect information on protected veterans. OFCCP has provided little guidance regarding the format to be used for self-identification forms regarding race/ethnicity, and gender.

Next in this Series…

In our next post in this series, we focus on OFCCP’s requirements for handling applicant data, including recommendations regarding the “Internet Applicant” rule.