OFCCP and Affirmative Action: Laying the Groundwork

As mentioned in a previous blog, OFCCP’s Contractor Portal, we are kicking off a blog series related to OFCCP and Affirmative Action requirements for contractors of all sizes. We begin this series by laying the groundwork of who (or what) OFCCP is and what affirmative action is. This series will focus on supply and service contractors; however, construction contractors may also find it helpful. Regardless of the type of contractor, our HR Team is available to assist with all of your OFCCP compliance and Affirmative Action Program (AAP) needs.

Who (or What) is OFCCP?

The stated mission of the Office of Federal Contract Compliance Programs (OFCCP), which is under the umbrella of the Department of Labor, is to protect workers, promote diversity and enforce the law. The OFCCP is responsible for ensuring that federal government contractors comply with equal employment opportunity laws, specifically Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans Readjustment Assistance Act of 1974.

The chart below provides an overview of the laws that the OFCCP administers and enforces, and the thresholds at which they become applicable to federal contractors. For reference, the applicable FAR clauses are also included. Note that the requirements differ based on the type of contract (Supplies and Services or Construction). This series will focus on Supply and Service Contractors; however, our HR Consulting team is available to assist with the requirements of Construction Contractors as well.

What is Affirmative Action?

Like other employers, government contractors are responsible for complying with equal employment opportunity laws. This, of course, involves ensuring that applicants and employees are treated equally and without discrimination in all aspects of employment (hiring, promotion, compensation, training, etc.). Federal government contractors have the added responsibility of affirmative action, or encouraging and taking proactive steps toward equal employment and nondiscrimination. Merriam-Webster defines affirmative action as “an active effort to improve employment or educational opportunities for members of minority groups and for women.” OFCCP defines affirmative action as “the obligation on the part of the contractor to take action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.” The goal is to be intentional on casting a wide net, ensuring equal opportunities are provided to all and ultimately focusing on merit.

An Affirmative Action Program, or Plan (AAP), is a written document which clearly defines the actions the contractor has taken and will take toward these equal employment and affirmative action efforts. The requirements of the AAP go beyond simply producing this written document. The various analyses required within the plan need to be evaluated and provide data which may be helpful in identifying opportunities for improvement or potential issues. We will dig into these plans and the required elements in a future blog within this series.

Why Does Affirmative Action Matter?

Well, it’s the law and there’s certainly significant repercussions in failing to comply. For example, see OFCCP By the Numbers, where you will find that the OFCCP obtained over $211 million dollars of relief for employees and applicants who they found to have been discriminated against between 2011-2021. In addition to the financial considerations, failure to comply with these requirements often leads to significant time and resources required of your staff in responding to OFCCP investigations, poor public relations and the potential for loss of contract renewal and debarment.

Beyond the legal aspects, compliance makes good business sense. We’ve certainly learned that a diverse and inclusive environment provides for increased innovation, a stronger culture and an atmosphere of trust, all of which encourage retention and increases productivity and revenue.

What’s Next in this Series?

We hope you noted from the chart above that most all contractors have at least some responsibilities toward Affirmative Action, even those with fewer than 50 employees. In the next segment of our series, we will provide an overview for Service and Supply Contractors of these Basic Requirements (for those with fewer than 50 employees) and the Enhanced Requirements (for those with greater than 50 employees).