Affirmative Action Filing Deadline Approaches for Federal Contractors and Subcontractors

A deadline is coming up for employers who do business with the federal government. By June 29, 2023, all federal contractors and subcontractors with 50 or more employees and a single federal contract of $50,000 or more are expected to certify that their Affirmative Action Programs (AAP) are compliant. The Office of Federal Contract Compliance Programs (OFCCP) opened the certification portal on March 31, 2023.

Covered contractors and subcontractors are responsible for developing and maintaining an AAP to ensure that those who do business with the federal government take affirmative action to avoid discrimination. The June 29, 2023, deadline applies to current federal contractors and subcontractors. New contractors and subcontractors have a bit longer to register and certify compliance — up to 90 days after developing their AAPs — so the certification portal will remain open well after June 29, 2023, for these service providers.

What is affirmative action?

According to the OFCCP, affirmative action is the “obligation on the part of the contractor to take action to ensure that job 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.” Employers are expected to develop a plan and implement a program for understanding and monitoring specific aspects of their workforce. Employers are also expected to demonstrate the sincerity of their affirmative action efforts by building training and recruitment outreach initiatives into the program they implement.

The different laws and regulations that have shaped and defined the concept of affirmative action over time include the following:

• Executive Order 11246 — Equal Employment Opportunity — was signed by President Lyndon B. Johnson on September 24, 1965. This order “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in government business in one year,” from discriminating in employment decisions based on race, color, religion, sex, or national origin. The order also requires contractors to “take affirmative action” to ensure employees are treated “without regard to their race, color, religion, sex or national origin.”

Since 1965, Executive Order 11246 has been amended twice. On October 13, 1967, Executive Order 11375 added the category “sex” to the anti-discrimination provisions. On July 21, 2014, Executive Order 13672 amended Executive Orders 11246 and 11478, changing “sexual orientation” to “sexual orientation, gender identity.”

• Section 503 — Rehabilitation Act of 1973 — prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities. Employers who do business with the federal government must take affirmative action to recruit, hire, promote, and retain these individuals.
• 38 USC 4212— Vietnam Era Veterans’ Readjustment Assistance Act of 1974 — provides assistance to returning veterans and protects them from employment discrimination.
• 41 CFR Part 60-1 — Obligations of Contractors and Subcontractors — specifies the administrative responsibilities and procedures involved in compliance with the “equal opportunity clause.”
• 41 CFR Part 60-2 — Affirmative Action Programs — prescribes the contents of affirmative action programs, standards, and procedures for evaluating compliance.
• 41 CFR Part 60-741 — Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals with Disabilities — sets forth the standards for compliance with section 503 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination against individuals with disabilities and requires federal contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities.

What’s involved in developing an AAP and a governmental audit of an AAP?

An Affirmative Action Program (AAP) is based upon a written plan in which employers articulate the steps they have taken — and will take — to ensure the right of all persons to advance in their employment based upon merit and ability and free from discrimination. The OFCCP provides sample AAPs to illustrate program styles and formats that meet regulatory requirements.

During audits, the OFCCP official will want to review copies of job postings, proof of targeted recruitment efforts, reasonable accommodation policies, and, most importantly, employment data on applicants, hires, promotions, and terminations. For each employee, the auditor will want to see data that includes: name, race, gender, disability status, job title, department, EEO-1/job group, wage/salary, location, and hire date. Employers will be expected to provide data on their workforce from just before the plan begins and employment activity data for the 12 months before the AAP’s start date. This data becomes the baseline for creating a forward-looking plan to meet placement goals for the upcoming year.

What about the upcoming Supreme Court affirmative action decision?

Some employers wonder how the upcoming United States Supreme Court decision on the challenges to the affirmative action admission policies of Harvard University and the University of North Carolina — the case was argued in the fall of 2022 and most predict the decision will end affirmative action for college admission programs — will affect employer-based Diversity, Equity, Inclusion, and Accessibility (DEIA) and affirmative action programs. It is unlikely that the decision will have an immediate or direct impact on any of these programs. However, it is realistic to assume that a decision ending affirmative action in college admissions will inspire more than a few lawsuits challenging workplace affirmative action and DEIA programs.

If you’re an existing federal contractor, don’t miss the upcoming deadline.

Meeting the deadline for AAP certification is important. The OFCCP has stated that existing contractors that do not certify by June 29 are more likely to be scheduled for an audit by the agency. If you need assistance preparing your affirmative action plan or if the OFCCP audits you, don’t hesitate to contact Orr and Reno for timely and expert guidance.

About the Authors: Steven L. Winer and Meredith Farrell Goldstein 

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