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EEO/AA & AAP Legal Services

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Jurisdiction

EEO
Equal Employment Opportunity ("EEO") requires employers, as part of the terms and conditions of employment, to treat all employees and applicants without regard to their race, color, gender, national origin, religion, age, veteran's status or disability/handicap status. Federal EEO obligations on employers arise from 2 main sources: (1) nondiscrimination laws that apply to all employers who meet certain minimum number of employee thresholds; (2) a mandatory EEO clause inserted in contracts/subcontracts with the U.S. government.  Nondiscrimination laws are enforced primarily by the EEOC and the Department of Justice; EEO clauses in government contracts are enforced by the OFCCP.

The EEO requirements enforced by the EEOC are found primarily in the following federal statutes: Title VII of the Civil Rights Act of 1964, as amended; Pregnancy Discrimination Act; Equal Pay Act; Age Discrimination in Employment Act; and the Americans with Disabilities Act. These statutes apply to all employers operating in the US that employ certain minimum numbers of employees as defined by each statute. The number of employees, the nature of the alleged discrimination, the existence of an actual or attempted employment relationship and compliance with the EEOC's administrative charge filing procedures establishes the EEOC's jurisidiction.

The EEO requirements enforced by the OFCCP are found in 4 main sources: Executive Order 11246, the Vietnam Era Veteran's Readjustment Act, Section 503 of the Rehabilitation Act of 1973, and the American Recovery and Reinvestment Act of 2009. As set forth in the Requirements section below, an entity becomes a federal contractor subject to OFCCP jurisdiction based upon the nature of the federal contract or subcontract (i.e., Supply/Service or Construction), the number of employees and the monetary value of the contract. Assuming these requirements are met, the OFCCP's jurisidiction over EEO matters activates during a scheduled compliance review or upon receipt of a complaint made against the contractor.

AAP
Affirmative Action ("AA") requires employers to take positive action to recruit, retain and advance in their workforce minorities and females where underutilization exists in comparision their representation in the local workforce population. An Affirmative Action Plan ("AAP") is the document that the employer creates describing its commitment to AA in its own workforce, the actions it has and will take to implement AA, and a measurement of its progress towards the goal of achieving a workforce that mirrors the local workforce population in terms of the percentages of minorities and females. AA and AAP requirements are set forth in AA clauses in federal government contracts/subcontracts. 

AA and AAP requirements enforced by the OFCCP are found in 4 main sources: Executive Order 11246, the Vietnam Era Veteran's Readjustment Act, Section 503 of the Rehabilitation Act of 1973, and the American Recovery and Reinvestment Act of 2009. As set forth in the Requirements section below, an entity becomes a federal contractor subject to OFCCP jurisdiction based upon the nature of the federal contract or subcontract (i.e., Supply/Service or Construction), the number of employees and the monetary value of the contract. Assuming these requirements are met, the OFCCP's jurisidiction over EEO matters activates during a randomly scheduled compliance review that may occur every 24 months for traditional contractors and every 6 months for ARRA fund recipients.
Requirements

Supply or Service provider with federal contract/subcontract valued at $50,000 or more and employ less than 50 employees:

  • Executive Order 11246: non-discrimination, required notices posted, EEO clause in contracts
  • Section 503 Rehabilitation Act: must take AA to hire/advance qualified disabled persons plus have a written AAP, required notices posted
  • Vietnam Veterans Readjustment Act/JVA: for post-December 1, 2003 contracts of $100k or more as follows - must take AA to hire,advance disabled vets and certain era vets plus have a written AAP, required notices posted, file VETS-100 form
  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • E-Verify required if federal contractor with contract valued $100,000 or more and length is greater than 120 days and for all subcontractors below with subcontracts valued over $3,000
  • I-9 compliance 

Supply or Service provider with federal contract/subcontract valued at $50,000 or more and employ more than 50 employees: 

  • Executive Order 11246: must take AA to hire/advance minorities/women plus have a written AAP, file EEO-1 form (if over 100 employees), follow CFR 60-3 employee selection procedures, non-discrimination, required notices posted, EEO clause in contracts
  • Section 503 Rehabilitation Act: must take AA to hire/advance qualified disabled persons plus have a written AAP, required notices posted
  • Vietnam Veterans Readjustment Act/JVA: for post-December 1, 2003 contracts of $100k or more as follows - must take AA to hire,advance disabled vets and certain era vets plus have a written AAP, required notices posted, file VETS-100 form
  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender 
  • E-Verify required if federal contractor with contract valued $100,000 or more and length is greater than 120 days and for all subcontractors below with subcontracts valued over $3,000
  • I-9 compliance 

 

Supply or Service provider with federal contract/subcontract valued at over $10,000 but less than $50,000 and employ more than 15 employees: 

  • Executive Order 11246: file EEO-1 form (if over 100 employees),non-discrimination, required notices posted, EEO clause in contracts
  • Section 503 Rehabilitation Act: must take AA to hire/advance qualified disabled persons plus have a written AAP, required notices posted
  • Vietnam Veterans Readjustment Act/JVA: for pre-December 1, 2003 contracts of $25k or more as follows - must take AA to hire.advance disabled vets and certain era vets plus have a written AAP, required notices posted, file VETS-100 form
  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • I-9 Compliance 

Supply or Service provider with no federal contracts:

  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion, file EEO-1 form (if over 100 employees)
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • I-9 Compliance 

Construction company with federal contracts/subcontracts or federally assisted construction contracts valued less than $10,000 aggregated:

  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion, file EEO-1 form (if over 100 employees)
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • I-9 Compliance 

Construction company with federal contracts/subcontracts or federally assisted construction contracts valued more than $10,000 aggregated:

  • Executive Order 11246: must take AA to hire/advance minorities/women plus have a written construction contractor AAP, file EEO-1 form (if over 100 employees), non-discrimination, required notices posted, EEO clause in contracts
  • Section 503 Rehabilitation Act: must take AA to hire/advance qualified disabled persons plus have a written AAP, required notices posted
  • Vietnam Veterans Readjustment Act/JVA: for post-December 1, 2003 contracts of $100k or more and/or pre-December 1,2 003 contracts of $25k or more as follows - must take AA to hire,advance disabled vets and certain era vets plus have a written AAP, required notices posted, file VETS-100 form
  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • E-Verify required if federal contractor with contract valued $100,000 or more and length is greater than 120 days and for all subcontractors below with subcontracts valued over $3,000
  • I-9 compliance 

Construction company with no federal contracts/subcontracts or federally assisted construction contracts:

  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion, file EEO-1 form (if over 100 employees)
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • I-9 Compliance 

University or higher education facility with federal contracts/subcontracts valued $50,000 or more:

  • Executive Order 11246: must take AA to hire/advance minorities/women plus have a written AAP, file EEO-6 form (if over 15 employees), follow CFR 60-3 employee selection procedures, non-discrimination, required notices posted, EEO clause in contracts
  • Section 503 Rehabilitation Act: must take AA to hire/advance qualified disabled persons plus have a written AAP, required notices posted
  • Vietnam Veterans Readjustment Act/JVA: for post-December 1, 2003 contracts of $100k or more as follows - must take AA to hire,advance disabled vets and certain era vets plus have a written AAP, required notices posted, file VETS-100 form
  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • Additional requiredments imposed by DOJ Office of Civil Rights based on financial assistance received from the Department of Education
  • E-Verify required if federal contractor with contract valued $100,000 or more and length is greater than 120 days and for all subcontractors below with subcontracts valued over $3,000
  • I-9 compliance 

Supply/Service provider, Construction company or Financial institution receiving or holding stimulus funds as part of federal contract/subcontract or other manner under the American Recovery and Reinvestment Act (ARRA):

  • Executive Order 11246: must take AA to hire/advance minorities/women plus have a written AAP, file EEO-1 form (if over 100 employees), follow CFR 60-3 employee selection procedures, non-discrimination, required notices posted, EEO clause in contracts, pre-award clearance evaluation of AAP if contract value exceeds $10 million 
  • Section 503 Rehabilitation Act: must take AA to hire/advance qualified disabled persons plus have a written AAP, required notices posted, pre-award clearance evaluation of AAP if contract value exceeds $10 million 
  • Vietnam Veterans Readjustment Act/JVA: for contracts of $100k or more as follows - must take AA to hire, advance disabled vets and certain era vets plus have a written AAP, required notices posted, file VETS-100 form, pre-award clearance evaluation of AAP if contract value exceeds $10 million 
  • Title VII of Civil Rights Act: if you have 15 or more employees then nondiscrimination based on race, color, national origin, religion
  • Age Discrimination in Employment Act: if you have 20 or more employees then nondiscrimination based on 40 years of age or above
  • Americans with Disabilities Act: if you have 15 or more employees then nondiscrimination against qualified disabled individuals
  • Equal Pay Act: if you have 2 or more employees and engaged in interstate commerce then nondiscrimination in pay and compensation based on gender
  • E-Verify required if federal contractor with contract valued $100,000 or more and length is greater than 120 days and for all subcontractors below with subcontracts valued over $3,000
  • I-9 compliance 

 Please note that when a federal contractor owns multiple facilities and one facility falls within the OFCCP's jurisdiction, the OFCCP will often assert that all of the contractor's facilities are within the OFCCP's jurisdiction.  

 

Compliance Review Process 

    The OFCCP compliance review process is triggered by a random audit or discrimination complaints received by the agency about a federal contractor. Each non-ARRA federal contractor is subject to a possible random audit once every 24 months; each ARRA federal contractor is subject to a possible random audit once every 6 months. The scope of the compliance review varies depending on the value of the contract, type of contract, the number of employees at the facility being audited, and the aggregation (if any) of multiple facilities into a single audit. The matters audited may include: the AAP, applicant flow data, required workplace notices, retention of completed applications for 2 years, placement of job orders with state employment agencies, use of "EOE" tagline in all employment advertisements and retained copies of such, use of recruiting services targeting minorities/females, investigation into circumstances surrounding discrimination complaints or suspected discrimination, compliance with E-VERIFY, I-9 requirements and NLRA notices.

    The OFCCP audit may take several forms and may evolve from one form to another as follows: a compliance review, an offsite review of records, a compliance check, or a focused review. Each is described in turn:

    A compliance review is the most likely scenario in a random audit and is mandatory for all ARRA money recipients (and must be done pre-award for recipients of $10 million or more in ARRA monies). This is the most comprehensive of the various audit mechanisms. This is a comprehensive and complete review of all of the contractor's hiring and employment practices. There are three successive parts to a compliance review: a desk audit, an onsite review, and offsite review. The desk audit occurs first and consists of an evaluation of the AAP, evaluation of employment practices to preliminarily assess compliance, and selection of red-flag areas to target during the onsite visit. The onsite review involves the EEOC's compliance officer physically visiting the contractor's facility to investigate red-flagged matters, review employment practices and policies, interview management and non-management personnel, review facility records, and perform an inspection tour of the entire facility. Finally, the offsite review occurs with the OFCCP analyzing the information obtained from the onsite review. At this pont, the OFCCP implements one or more of sveral possible closure mechanisms (discussed below). 

    If an offsite review of records is the chosen audit mechanism, the OFCCP will review the AAP along with any supporting documentation and review personal policies and actions. No onsite visit occurs. At this pont, the OFCCP implements one or more of sveral possible closure mechanisms (discussed below).

     If a compliance check is the chosen audit mechanism, the OFCCP only inspects certain requested documents or records usually relating to reasonable accomodations, job advertisements and progress towards recruitment/promotion goals. No onsite visit occurs At this pont, the OFCCP implements one or moreof several possible closure mechanisms (discussed below). 

    If a focused review is the chosen audit mechanism, and OFCCP compliance officer conducts an onsite review to evaluate a contractor's affirmative action efforts in particular practice areas, such as sales, compensation, etc. At this pont, the OFCCP implements one or more of several possible closure mechanisms (discussed below).
  

Closing the Compliance Process

    The OFCCP normally resolves and closes the compliance process using several possible mechanisms: closure letter, show cause notice, closure letter of commitment for minor violations, conciliation agreement for major violations, 15-day notice, recommendation of enforcement, and enforcement proceedings. Each is described in turn:

    A closure letter issues to a contractor/subcontractor when the OFCCP closes the audit with no findings of violations. If this is the end result of a compliance review, the contractor/subcontractor will not be exposed to another random audit for the next 24 months (or next 6 months for ARRA money recipients).

    The OFCCP typically issues a show cause notice to a contractor/subcontractor as a first step when a violation, usually major, has been found. It is basically a notice to the contractor that the OFCCP has uncovered what it believes to be a violation of EEO or AA contract requirements and presents an opportunity for the contractor to demonstrate to the OFCCP that is it mistaken or, failing that, to begin the process of curing the violation.

    When the OFCCP uncovers a minor violation of EEO or AA contract requirements, rather than a show cause notice, it typically issues a closure letter subject to the contractor/subcontractor signing a commitment letter wherein it agrees to undertake certain specified actions to cure the minor violation and ensure that no further violations occur.

    The OFCCP will require a contractor/subcontractor to enter into a conciliation agreement where major or substantive violations have been uncovered or a letter of commitment has been violated. Usually, but not always, the requirement of a conciliation agreement is triggered by the issuance of a show cause notice. A conciliation agreeement is a legally enforceable written agreement wherein the contractor is given formal notice of the violations, the remedies that it must implemented (including monetary remedies to discrimination victims), reporting and monitoring requirements, and the duration of the agreement (typically 1 - 2 years). The contractor must sign the agreement. Upon signature, the show cause notice will be rescinded and the contractor will be issued a "Notice of Review Completion - Major Violations Resolved in a Conciliation Agreement" letter.

     When the OFCCP believes a conciliation agreement has been violated, it will issue a 15-day notice to the contractor/subcontractor, unless the Agency believes irreparable harm will occur. This notice gives
the contractor 15 days to present written facts and evidence that it is in compliance with the agreement. If the OFCCP determines the contractor is in compliance with the agreement, the notice is rescinded; if not, the matter is recommended for enforcement to the Department of Labor's Office of the Solicitor for an enforcement action.

    Attorneys at the Office of the Solicitor decide how the OFCCP's enforcement recommendation will be handled. If it is determined that the matter is ripe for immediate judicial enforcement proceedings, the matter will be referred to the Department of Justice for litigation in federal court. If it is determined that the matter is not ripe for immediate judicial enforcement, it will be referred to administrative enforcement proceedings with the Office of Administrative Law Judges. 

    If the matter is resolved by agreement at this stage, the resolution will be enforced through entry of a consent decree against the contractor. If the matter ultimately ends with a court or ALJ decision against the contractor, an injunction may be issued, monetary relief may be awarded, the contract may be cancelled or partially suspended, and the contractor may be disbarred from receiving any further federal contracts.

    Finally, the OFCCP may refer instances of unlawful discrimination to the EEOC or Department of Justice for investigation at its discretion. Additionally, the OFCCP is charged with auditing I-9 forms and compliance with the E-VERIFY system and reporting violations to the Department of Homeland Security. The OFCCP will also be charged with auditing and notifying the National Labor Relations Board of violations of Executive Order 1349, which requires employers to post in the workplace notices of employee rights under federal labor laws.
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