Earlier this year, the Office of Federal Contract Compliance Programs (OFCCP), which is responsible for ensuring that entities doing business with the federal government take affirmative action as required by Executive Order 11246, released its fiscal year 2011 budget request and enforcement initiatives. OFCCP director Patricia A. Shiu said she plans to implement full-scale aggressive enforcement efforts. The agency is better funded than before and ready to enforce affirmative action rules and focus on systemic discrimination. Government contractors are well advised to prepare themselves for more on-site reviews, including more thorough reviews of affirmative action plans than in the past. Other areas likely for review are contractor job advertisements, recruitment practices, hiring decisions, and pay.
Affirmative action is more than simply practicing equal opportunity or not discriminating. It involves proactive efforts to achieve and maintain a statistically balanced workforce with respect to various protected classes of applicants and employees. But who is required to have an affirmative action plan? Approximately 23 percent of the total civilian workforce is employed by federal government contractors or subcontractors with an affirmative action mandate. Despite the wide reach of these mandates, many companies don’t realize that they have affirmative action obligations until the day they receive notice of a compliance review from the OFCCP.
Executive Order 11246
Under Executive Order 11246 (issued by President Lyndon B. Johnson in 1965), employers with 50 or more employees having a single nonconstruction federal contract or subcontract of $50,000 or more must prepare a written affirmative action plan within 120 days of the contract commencing. Moreover, the contractor must “update” its affirmative action plan annually as long as the contract continues. The written plan must contain:
- a detailed analysis of the employer’s current workforce by race and sex;
- an analysis of whether minorities or females are statistically underrepresented or underused in the workforce;
- rules for job categories in which minorities or females are underrepresented;
- action orientation programs to achieve the stated goals and remedy identified problem areas; and
- timetables for achieving these goals.
So what does all this mean? It means you should carefully consider your obligations when bidding on a federal contract or subcontract. If you already have government contracts, you should conduct an internal audit to assess compliance. If you aren’t in compliance, you should get there as quickly as possible ― before the OFCCP comes knocking. Noncompliance with affirmative action requirements can result in contract cancellation, termination, or suspension as well as back pay for workers who were discriminated against. In addition, your company may be declared ineligible to participate in government contracts in the future. It’s best to consult with legal counsel if you’re unsure whether you are required to have an affirmative action plan.