Equal Employment Opportunity And Affirmative Action Obligations In Federal Contracts
November 6, 2000
Paul Thomas - Washington
Virtually every federal contractor is subject to the jurisdiction, regulations, and scrutiny of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), which oversees compliance with non-discrimination and affirmative action obligations. This article describes OFCCP’s jurisdictional authority, and highlights one of the agency’s public/private partnership initiatives for national agreements that several Holland & Knight LLP Corporate Diversity Counseling Group partners were instrumental in creating.
OFCCP’s charter is to ensure that federal contractors fully comply with the equal employment opportunity and affirmative action provisions incorporated into their government contracts. Specifically, OFCCP enforces five major anti-discrimination and affirmative action provisions:
- Executive Order 11246: Requiring all nonexempt government contractors and subcontractors with service and supply contracts of $50,000 or more and 50 or more employees to develop written affirmative action programs with specific and result-oriented procedures. Executive Order 11246 also imposes a separate affirmative action obligation upon contractors performing construction work pursuant to either federal construction contracts or federally assisted construction contracts valued at $10,000 or more. These construction contractors must demonstrate their good- faith efforts to meet designated affirmative action goals provided in federal regulations by complying with certain additional regulatory requirements.
- Section 503 of the Rehabilitation Act of 1973: Prohibiting discrimination against, and requiring affirmative action directed toward, individuals with disabilities by all nonexempt government contractors and subcontractors with contracts exceeding $10,000.
- Title I of the Americans with Disabilities Act of 1990: Requiring all employers to make reasonable accommodations to protect the rights of individuals with disabilities in all aspects of employment.
- The Vietnam Era Veterans’ Readjustment Assistance Act of 1974: Prohibiting discrimination against, and requiring affirmative action directed toward, both disabled and non-disabled war veterans.
- Immigration Reform and Control Act of 1996: Requiring employers to maintain records of the citizenship of all new employees.
Title 41, Part 60, of the Code of Federal Regulations empowers OFCCP to perform routine audits of federal contractors and subcontractors to assure compliance, and to investigate any individual complaints. During an OFCCP evaluation, the agency carefully examines personnel practices, including compensation equity. The evaluation may result in a finding of discrimination or wrongful conduct, which can result in significant demands for remedial actions or sanctions against noncomplying firms. Among the enforcement options available is the cancellation of all federal contracts issued to the offending firm.
The Corporate Diversity Counseling Group was instrumental in assisting The Boeing Company to reach a first-of-its-kind, “landmark” agreement with OFCCP. Boeing is the world’s largest aerospace firm, and with $11 billion in federal contracts during the compliance audits, was the second largest federal contractor. The agreement, which Secretary of Labor Alexis Herman called a “paradigm,” resolved 10 outstanding compliance audits and three enforcement actions that DOL had filed against the company and has served as a model in other compliance negotiations. Some of the more significant aspects of the agreement are provisions for the following: an agreed-upon statistical measurement of compensation equity, a joint compliance forum to facilitate communication between Boeing and agency personnel, and self-monitoring and reporting. The agreement also contains provisions limiting the scope of future audits, providing for notice of impending audits, and restricting the scope of complaint investigations. The Boeing agreement joins other significant OFCCP settlements, including a major settlement with client Texaco Inc., crafted by the Corporate Diversity Counseling Group.
Federal contractors also should be aware that OFCCP has initiated an Equal Opportunity Survey, which is designed to gather data on contractors’ affirmative action plans, personnel activity and compensation. OFCCP’s plan is to send surveys to 60,000 of the 92,500 federal supply and service contractors this year. Responding to the survey is mandatory, and OFCCP intends to use the results to identify establishments for compliance evaluations.
For more information on OFCCP, consult the agency’s Web site at
http://www.dol.gov/dol/esa/public/ofcp_org.htm or visit the White House’s page on OFCCP at
http://www.whitehouse.gov/WH/EOP/OP/html/aa/aa06.html, or contact Paul Thomas at 202-663-7248 of Holland & Knight’s Corporate Diversity Consulting Group.