EO 14173 revoked EO 11246 Equal Employment Opportunity, which required covered federal contractors to practice affirmative action, develop written Affirmative Action Plans (AAPs) and implement compliant programs directed towards equal opportunities for women and minorities. This major change left contractors with a choice: set aside all efforts previously made toward compliance with EO 11246, or continue with employment analytics under a framework acceptable under EO 14173. In this article, we explain why we encourage you to consider the continuation of these efforts.
What are Employment Analytics?
“Employment analytics” is the collection and analysis of employee-related data and may include:
- Demographics and statistical analysis of the workforce.
- Comparison of the percentage of applicants to the number of available individuals in the geographical areas in which you recruit for talent.
- Patterns and trends in workforce composition and turnover.
- Identification of potential disparities in hiring and employment processes.
- Analysis of pay data.
For those of you well-versed on AAPs, you’re likely thinking this sounds much like the same process for developing the AAP that was required by EO 11246. While you’re not wrong, it is important to point out that these analytics are different in that they should include all races and genders and should not:
- Exclude any classification from the analysis (i.e., race or gender).
- Involve set-asides or quotas for hiring or other employment decisions.
- Allow for anything other than merit to be considered when making hiring and other employment decisions.
In addition, unlike AAPs required by EO 11246, the type and basis of analysis (i.e., Job Groups) is at your discretion, and care should be taken to determine what is most meaningful to your organization.
Why Keep the Records and Perform the Analytics?
The types and uses of this data can vary widely (i.e., hiring and compensation decisions, improved employee engagement, identification of skill gaps, enhanced succession planning). While we can support these efforts from multiple angles, the focus of this article is analysis based on protected characteristics in employment practices to support compliance with the following.
- Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, national origin, color and sex, including gender, gender identity, pregnancy and sexual orientation. The protections of Title VII apply equally to all applicants and workers regarding hiring, promotions, compensation, and other employment decisions.
- The Uniform Guidelines of Employee Selection Procedures (UGESP) were created to assist employers in complying with Title VII and provide a legal basis for using tests and other selection procedures, ensuring that decisions are based on merit. These requirements include the monitoring of selection differences by race, ethnicity and sex.
- The Equal Pay Act of 1963 requires employers to provide equal pay for men and women. This requirement includes all forms of compensation and benefits, including base pay, incentive compensation, stock options, insurance, vacation, etc.
- In the context of this article, The Americans with Disabilities Act (ADA) protects qualified applicants and employees with disabilities from discrimination in employment activities (i.e., hiring, firing, training, compensation).
- The Age Discrimination in Employment Act of 1967 protects workers over the age of 40 from discrimination.
The data maintained and the analytics produced can assist you in proactively identifying and addressing potential compliance issues (e.g., trends or irregularities indicating that discrimination may have occurred). It may also be used as a defense to show that unlawful employment practices did not occur.
Note to our covered federal contractors: At this point, you are still required to comply with affirmative action and other obligations as set forth in Section 503 of the Rehabilitation Act (which covers individuals with disabilities) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (which covers protected vets).
Using Employment Analytics to Support Ongoing Compliance
Although EO 11246 has been revoked, employment analytics remain an essential tool for identifying potential risks, supporting fair employment practices, and demonstrating compliance with longstanding federal anti-discrimination laws. Maintaining accurate records and conducting thoughtful analysis can help government contractors proactively address issues related to hiring, compensation, and other employment decisions before they escalate into audit findings or legal exposure. Redstone GCI supports government contractors through EEOC/OFCCP compliance assessments, process development, recordkeeping and retention guidance, and equal employment analytics tailored to current requirements. Our team of experts also assists with Affirmative Action Plans, where still required, implementation of affirmative action programs, annual EEO 1 and VETS 4212 reporting, compensation analyses, and audit support. In addition, we offer labor law compliance poster solutions and targeted training to ensure those involved in employment decisions understand their responsibilities and the reasoning behind compliance expectations. Together, these services help contractors remain prepared, informed, and aligned with evolving regulatory expectations.
