Dictionary of EEO/AA/AAP Terms

These definitions are provided by Maly Consulting LLC for information purposes only and not as legal advice. The OFCCP Compliance Manual and government websites do not carry the weight of law and many references are contradictory and may be out of date with current practices. If you have any questions concerning the information provided, please contact us at info@malyconsulting.com

Answers you can trust. The exact source of each term or phrase is provided.
Affirmative Action includes actions, policies and procedures to which a contractor commits itself that are designed to achieve equal employment opportunity. Affirmative action obligations entail thorough, systematic efforts to prevent discrimination from occurring and to detect it and eliminate it as promptly as possible. Affirmative action obligations also require contractors to ensure equal opportunity in their recruitment and outreach efforts. – OFCCP Compliance Manual
An affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination, over time a contractor’s workforce will generally reflect the gender, racial and ethnic profile of the labor pools from which that contractor recruits and selects. Affirmative action programs contain a diagnostic component which includes a number of quantitative analyses designed to evaluate the composition of the workforce of a contractor and compare it to the composition of the relevant labor pools. Affirmative action programs also include action-oriented programs. If women and minorities are not being employed at a rate to be expected given their availability in the relevant labor pool, a contractor’s affirmative action program includes specific practical steps designed to address this under-utilization. Effective affirmative action programs also include internal auditing and reporting systems as a means of measuring a contractor’s progress toward achieving a workforce that would be expected in the absence of discrimination.

An affirmative action program also ensures equal employment opportunity by institutionalizing a contractor’s commitment to equality in every aspect of the employment process. Therefore, as part of its affirmative action program, a contractor monitors and examines its employment decisions and compensation systems to evaluate the impact of those systems on women and minorities.

An affirmative action program is, thus, more than a paperwork exercise. An affirmative action program includes those policies, practices, and procedures that a contractor implements to ensure that all qualified applicants and employees are receiving an equal opportunity for recruitment, selection, advancement, and every other term and privilege associated with employment. Affirmative action, ideally, is a part of the way a contractor regularly conducts its business. OFCCP has found that when an affirmative action program is approached from this perspective, as a powerful management tool, there is a positive correlation between the presence of affirmative action and the absence of discrimination. – 41 CFR § 60-2.10

The requirements for an affirmative action program that satisfies Executive Order 11246, Section 503 and Section 4212, are set forth in 41 CFR Parts 60-2; 60‐741, Subpart C; 60-250, Subpart C; or 60-300, Subpart C. These include requiring a contractor to annually detail the affirmative steps it has taken and will take in the future to ensure equal employment opportunity. – OFCCP Compliance Manual

The precise definition of the term applicant depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed orally or by completing an application form, depending upon the employer’s practice.

A person who voluntarily withdraws formally or informally at any stage of the selection process is no longer an applicant or candidate for purposes of computing adverse impact. Employment standards imposed by the user which disproportionately discourage applicants of a race, sex or ethnic group may, however, require justification. Records should be kept for persons who were applicants or candidates at any stage of the process. – Uniform Employee Selection Guidelines Interpretation and Clarification

Refer also to Internet Applicant

Availability is an estimate of the number of qualified minorities or women available for employment in a given job group, expressed as a percentage of all qualified persons available for employment in the job group. The purpose of the availability determination is to establish a benchmark against which the demographic composition of a contractor’s incumbent workforce can be compared in order to determine whether barriers to equal employment opportunity may exist within particular job groups. – 41 CFR § 60-2.14
Basic qualifications are qualifications advertised by a contractor to potential applicants that they must possess in order to be considered for the position (e.g., description and qualifications of a job posted on a contractor’s website); or

When a contractor does not advertise for the position but instead uses an alternative device or method to find individuals for consideration, basic qualifications are those for which a contractor established criteria in advance by making and maintaining a record of such qualifications for the position prior to considering any expression of interest for that particular position.

Basic Qualifications must meet all of the following three conditions:

(i) Qualifications must be non-comparative features of a job seeker. For example, requiring three years’ experience in a particular position is a non-comparative qualification, whereas requiring that an individual be one of the top five applicants in number of years of experience among a pool of job seekers is a comparative qualification.
(ii) Qualifications must be objective, not dependent on a contractor’s subjective judgment. For example, “a Bachelor’s degree in accounting” is objective if a third-party, with the contractor’s technical knowledge, could evaluate whether a job seeker possesses the qualification without more information about the contractor’s judgment.
(iii) Qualifications must be relevant to performance of the particular position and must enable the contractor to accomplish business-related goals.

OFCCP Compliance Manual

Compliance Evaluations are the investigation and review process used by OFCCP to determine whether a Federal contractor is complying with the nondiscriminatory and affirmative action employment obligations outlined in 41 CFR Chapter 60. A compliance evaluation consists of any one or any combination of the following investigative procedures: compliance review, offsite review of records, compliance check, or focused review. See 41 CFR 60-1.20(a), 60-250.60(a), 60-300.60(a) and 60-741.60(a). – OFCCP Compliance Manual
A Compliance Officer is a career ladder professional position typically located in an OFCCP district or area office, but also found in some regional offices. The career ladder includes entry-level, journey-level and senior-level positions. As a CO moves up the career ladder, he/she demonstrates greater responsibility and independence in his/her work, recommendations and assignments. At each level, COs may work individually or in teams conducting compliance evaluations, complaint investigations, and monitoring Federal contractors. In addition, COs provide compliance assistance to community groups and Federal contractors.

As used in the OFCCP Compliance Manual, all references to the term CO include any OFCCP employee that is responsible for the tasks or activities described. – OFCCP Compliance Manual

A Conciliation Agreement is a binding written agreement between a contractor and OFCCP that details specific contractor commitments, actions, or both to resolve the violations set forth in the agreement. – OFCCP Compliance Manual
Contractor refers to a prime contractor or subcontractor (unless otherwise indicated).

Prime contractor refers to any person/entity holding a contract; and for the purposes of enforcement provisions, any person/entity who has held a contract subject to EO 11246, Section 503 or Section 4212.

Subcontractor refers to any person/entity holding a subcontract; and for the purposes of the enforcement provisions, any person/entity who has held a subcontract subject to EO 11246, Section 503 or Section 4212.

First‐tier subcontractor refers to a subcontractor holding a subcontract with a prime contractor. – OFCCP Compliance Manual

A disability includes:

(i) Having a physical or mental impairment that substantially limits one or more of an individual’s major life activities;
(ii) Having a record of a physical or mental impairment; or
(iii) Being regarded as having a physical or mental impairment.

OFCCP Compliance Manual

Disparate Impact is a theory of employment discrimination that focuses on the effect of a practice or policy. Disparate impact discrimination occurs when a contractor’s use of a facially neutral policy or selection procedure (e.g., a test, an interview, a degree requirement, a leave or hours policy) disqualifies members of a protected class at a substantially higher rate than others and is not justified by business necessity and job‐relatedness. Intent to discriminate is not necessary in this type of employment discrimination. The disparate impact theory may be used to analyze both objective and subjective selection standards. – OFCCP Compliance Manual

As defined by UGESP at 41 CFR 60-3.16B, Adverse Impact is a substantially different rate of selection in hiring, promotion, transferring, training or other employment decision which works to the disadvantage of the members of a race, sex or ethnic group identified in 41 CFR 60-3.4, and Section 4 of 41 CFR § 60-3.16. – OFCCP Compliance Manual

Disparate Treatment is a theory of employment discrimination. Disparate treatment discrimination occurs when a contractor treats an individual or group differently on the basis of a prohibited factor (race, color, religion, sex, national origin, disability, protected activity or status as a protected veteran). Intent to discriminate is a necessary element in this type of employment discrimination. – OFCCP Compliance Manual
An EEO Tag Line is a mandatory visible statement, wherein all Federal contractors state in all solicitations or advertisements for employment that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity or national origin. – OFCCP Website
The major job categories are listed below, including a brief description of the skills and training required for occupations in that category and examples of the job titles that fit each category.

1.1 – Executive/Senior-Level Officials and Managers: Individuals who plan, direct and formulate policies, set strategy and provide the overall direction of enterprises/organizations for the development and delivery of products or services, within the parameters approved by boards of directors or other governing bodies. Residing in the highest levels of organizations, these executives plan, direct or coordinate activities with the support of subordinate executives and staff managers. They include, in larger organizations, those individuals within two reporting levels of the CEO, whose responsibilities require frequent interaction with the CEO. Examples of these kinds of managers are: chief executive officers; chief operating officers; chief financial officers; line of business heads; presidents or executive vice presidents of functional areas or operating groups; chief information officers; chief human resources officers; chief marketing officers; chief legal officers; management directors and managing partners.

1.2 – First/Mid-Level Officials and Managers: Individuals who serve as managers, other than those who serve as Executive/Senior-Level Officials and Managers, including those who oversee and direct the delivery of products, services or functions at group, regional or divisional levels of organizations. These managers receive directions from the Executive/Senior-Level management and typically lead major business units. They implement policies, programs and directives of executive/senior management through subordinate managers and within the parameters set by Executive/Senior-Level management. Examples of these kinds of managers are: vice presidents and directors; group, regional or divisional controllers; treasurers; human resources; information systems; marketing; and operations managers. The First/Mid-Level Officials and Managers subcategory also includes those who report directly to middle managers. These individuals serve at functional, line-of-business segment or branch levels and are responsible for directing and executing the day-to-day operational objectives of enterprises/organizations, conveying the directions of higher level officials and managers to subordinate personnel and, in some instances, directly supervising the activities of exempt and non-exempt personnel. Examples of these kinds of managers are: first-line managers; team managers; unit managers; operations and production mangers; branch managers; administrative services managers; purchasing and transportation managers; storage and distribution managers; call center or customer service managers; technical support managers; and brand or product mangers.

02 – Professionals: Most jobs in this category require bachelor and graduate degrees, and/or professional certification. In some instances, comparable experience may establish a person’s qualifications. Examples of these kinds of positions include: accountants and auditors; airplane pilots and flight engineers; architects; artists; chemists; computer programmers; designers; dieticians; editors; engineers; lawyers; librarians; mathematical scientists; natural scientists; registered nurses; physical scientists; physicians and surgeons; social scientists; teachers; and surveyors.

03 – Technicians: Jobs in this category include activities that require applied scientific skills, usually obtained by post-secondary education of varying lengths, depending on the particular occupation, recognizing that in some instances additional training, certification, or comparable experience is required. Examples of these types of positions include: drafters; emergency medical technicians; chemical technicians; and broadcast and sound engineering technicians.

04 – Sales Workers: These jobs include non‐managerial activities that wholly and primarily involve direct sales. Examples of these types of positions include: advertising sales agents; insurance sales agents; real estate brokers and sales agents; wholesale sales representatives; securities, commodities, and financial services sales agents; telemarketers; demonstrators; retail salespersons; counter and rental clerks; and cashiers.

05 – Administrative Support Workers: These jobs involve non-managerial tasks providing administrative and support assistance, primarily in office settings. Examples of these types of positions include: office and administrative support workers; bookkeeping; accounting and auditing clerks; cargo and freight agents; dispatchers; couriers; data entry keyers; computer operators; shipping, receiving and traffic clerks; word processors and typists; proofreaders; desktop publishers; and general office clerks.

06 – Craft Workers [formerly Craft Workers (Skilled)]: Most jobs in this category include higher skilled occupations in construction (building trades craft workers and their formal apprentices) and natural resource extraction workers. Examples of these types of positions include: boilermakers; brick and stone masons; carpenters; electricians; painters (both construction and maintenance); glaziers; pipelayers, plumbers, pipefitters and steamfitters; plasterers; roofers; elevator installers; earth drillers; derrick operators; oil and gas rotary drill operators; and blasters and explosive workers. This category also includes occupations related to the installation, maintenance and part replacement of equipment, machines and tools, such as: automotive mechanics; aircraft mechanics; and electric and electronic equipment repairers. In addition, this category includes some production occupations that are distinguished by the high degree of skill and precision required to perform them, based on clearly defined task specifications, such as: millwrights; etchers and engravers; tool and die makers; and pattern makers.

07 – Operatives [formerly Operatives (Semi‐skilled)]: Most jobs in this category include intermediate skilled occupations and include workers who operate machines or factory-related processing equipment. Most of these occupations do not usually require more than several months of training. Examples include: textile machine workers; laundry and dry cleaning workers; photographic process workers; weaving machine operators; electrical and electronic equipment assemblers; semiconductor processors; testers, graders and sorters; bakers; and butchers and other meat, poultry and fish processing workers. This category also includes occupations of generally intermediate skill levels that are concerned with operating and controlling equipment to facilitate the movement of people or materials, such as: bridge and lock tenders; truck, bus or taxi drivers; industrial truck and tractor (forklift) operators; parking lot attendants; sailors; conveyor operators; and hand packers and packagers.

08 – Laborers and Helpers [formerly Laborers (Unskilled)] : Jobs in this category include workers with more limited skills who require only brief training to perform tasks that require little or no independent judgment. Examples include: production and construction worker helpers; vehicle and equipment cleaners; laborers; freight, stock and material movers; service station attendants; construction laborers; refuse and recyclable materials collectors; septic tank servicers; and sewer pipe cleaners.

09 – Service Workers: Jobs in this category include food service, cleaning service, personal service, and protective service activities. Skill may be acquired through formal training, job-related training or direct experience. Examples of food service positions include: cooks; bartenders; and other food service workers. Examples of personal service positions include: medical assistants and other healthcare support positions; hairdressers; ushers; and transportation attendants. Examples of cleaning service positions include: cleaners; janitors; and porters. Examples of protective service positions include: transit and railroad police and fire fighters; guards; private detectives and investigators.

EEO-1 Report Instruction Booklet

The Employer Information Report (EEO-1) is an annual report filed with the Joint Reporting Committee (composed of OFCCP and EEOC) by certain employers subject to the EO 11246 and/or to Title VII of the Civil Rights Act of 1964, as amended. The EEO-1 report details the sex, race, and ethnic composition of an employer’s workforce by job category. Also termed Standard Form 100. – OFCCP Compliance Manual
OFCCP generally uses the common law agency test for determining who is an employee under OFCCP programs, unless otherwise defined in agency regulations or reports. The common law agency test generally relates to whether an employer controls the means and manner of a worker’s performance. This determination requires consideration of all circumstances in the relationship between the parties, such as: the skill required for the job; who provides required equipment or tools; the location of the work; the duration of the relationship between the parties; the right to assign additional projects; scheduling work hours; the method of payment; the provision of employee benefits; and the tax treatment of the hired party. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323‐24 (1992). – OFCCP Compliance Manual

Employee refers to any individual on the payroll of an employer who is an employee for purposes of an employer’s withholding of Social Security taxes, except insurance sales agents who are considered to be employees for such purposes solely because of the provisions of 26 USC 3121 (d) (3) (B) of the Internal Revenue Code.

Leased employees are included in this definition. Leased employee refers to a permanent employee provided by an employment agency for a fee to an outside company for which the employment agency handles all personnel tasks including payroll, staffing, benefit payments, and compliance reporting.

Employment agencies must include leased employees in their EEO-1 reports.

The term employee does not include:

(i) Persons who are hired on a casual basis for a specified time, or for the duration of a specified job (for example, persons at a construction site whose employment relationship is expected to terminate with the end of the employee’s work at the site);
(ii) Persons temporarily employed in any industry other than construction, such as temporary office workers, mariners, stevedores, lumber yard workers, etc., who are hired through a hiring hall or other referral arrangement, through an employee contractor or agent, or by some individual hiring arrangement, or persons (except leased employees) on the payroll of an employment agency who are referred by such agency for work to be performed on the premises of another employer under that employer’s direction and control. – EEO-1 Report Instruction Booklet

Employed: In the reports issued by the U.S. Census Bureau using data from the American Community Survey (ACS), the following individuals are counted as employed:

All civilians 16-years-old and over who were either:

(i) At work, meaning they performed at least some work during the reference week as paid employees or in their business or profession, or on their farm, or who worked 15 hours or more as unpaid workers on a family farm or in a family business; or
(ii) With a job but not at work, meaning they did not work during the reference week but had jobs or businesses from which they were temporarily absent due to illness, bad weather, industrial dispute, vacation, or other personal reasons.

Generally excluded from the category of employed are people whose only activity consisted of unpaid work around the house or volunteer work for religious, charitable and similar organizations, or people on layoff. Also excluded are all institutionalized people and people on active duty in the United States Armed Forces. – OFCCP Compliance Manual

Employer refers to any employer subject to the provisions of the Civil Rights Act of 1964, as amended, including State or local governments and any Federal agency subject to the provisions of Section 717 of the Civil Rights Act of 1964, as amended, and any Federal contractor or subcontractor or Federally assisted construction contractor or subcontractor covered by Executive Order 11246, as amended. – 41 CFR § 60-3.16

Employer under Section 701(b), Title VII of the Civil Rights Act of 1964, as amended, refers to a person engaged in an industry affecting commerce with fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

Employer does not include:

(i) The Government of the United States;
(ii) A corporation wholly owned by the Government of the United States;
(iii) An Indian tribe;
(iv) Any department or agency of the District of Columbia subject by statute to procedures of the competitive service, as defined in Section 2102 of Title 5 of the United States Code;
(v) A bona fide private membership club (other than a labor organization) that is exempt from taxation under Section 501(c) of the Internal Revenue Code of 1954;
(vi) Any person or entity subject to Executive Order 11246 who is a Federal Government prime contractor or subcontractor at any tier (including a bank or other establishment serving as a depository of Federal government funds, or an issuing and paying agent of U.S. Savings Bonds and Notes, or a holder of a Federal government bill of lading); or
(vii) A Federally assisted construction prime contractor or subcontractor at any tier.

EEO-1 Report Instruction Booklet

The EEOC was established by Title VII of the Civil Rights Act of 1964 and began operating on July 2, 1965. The EEOC enforces the following Federal statutes:

(i) Title VII of the Civil Rights Act of 1964, as amended, prohibiting employment discrimination on the basis of race, color, religion, sex, or national origin;
(ii) The Age Discrimination in Employment Act (ADEA) of 1967, as amended, prohibiting employment discrimination against individuals 40 years of age and older;
(iii) The Equal Pay Act (EPA) of 1963 prohibiting discrimination on the basis of gender in compensation for substantially similar work under similar conditions;
(iv) Title I and Title V of the Americans with Disabilities Act (ADA) of 1990, prohibiting employment discrimination on the basis of disability in the private sector and state and local governments;
(v) Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, prohibiting employment discrimination against Federal employees with disabilities; and
(vi) The Civil Rights Act of 1991, providing monetary damages in cases of intentional discrimination and clarifying provisions regarding disparate impact actions.

EEOC website

Contractors must state and visibly post their commitment to comply with Equal Employment Opportunity regulations. The EO Clause can be posted in such places as company websites, purchase orders, paychecks, in break rooms, etc. The Equal Opportunity Clause can be incorporated into subcontracts by reference, but only by citing the regulations, 41 CFR 60-300.5(a), AND including the following sentences in bold text immediately following the citation:

This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. – OFCCP Website

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance.

Factors to consider in determining if a function is essential include:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:

  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

The ADA: Your Responsibilities as an Employer

Essential job functions refers to the fundamental job duties of the employment position an individual holds. A job function may be considered essential if:

(i) Access to compensation information is necessary in order to perform that function or another routinely assigned business task; or
(ii) The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.

Application or interpretation of the essential job functions definition in this part is limited to discrimination claims governed by Executive Order 13665 and its implementing regulations. – OFCCP regulations

The North American Industry Classification System, 2002, defines establishment as an economic unit that produces goods or services, such as a factory, office, store, or mine. In most instances, the establishment is at a single physical location and is engaged in one, or predominantly one, type of economic activity.

According to the OFCCP Compliance Manual, an establishment refers to a facility or unit that produces goods or services, such as a factory, office, store, or mine. In most instances, OFCCP considers an establishment to be a physically separate facility at a single location. In appropriate circumstances, OFCCP may consider several facilities located at two or more sites to be a single establishment when the facilities are in the same labor market or recruiting area. The determination as to whether it is appropriate to group facilities as a single establishment is made by OFCCP on a case-by-case basis. ‐ OFCCP Compliance Manual

In general, however, units at different physical locations must be reported as separate establishments, even if they are engaged in the same kind of business operation. For locations involving construction, transportation, communications, electric, gas, sanitary services, oil and gas fields, and similar types of physically dispersed industrial activities, however, it is not necessary to separately list individual sites, projects, fields, lines, etc., unless the contractor or business owner treats them like separate legal entities. For these types of activities, list as establishments only those relatively permanent main or branch offices, terminals, stations, etc., which are either: (a) directly responsible for supervising dispersed activities; or (b) the base from which personnel and equipment operate to carry out its activities. Where dispersed activities cross State lines, at least one establishment should be listed for each State involved. – EEO-1 Report Instruction Booklet

The aims of Parts II, III, and IV of Executive Order 11246 are to promote and ensure equal opportunity for all persons, without regard to race, color, religion, sex, or national origin, employed or seeking employment with Federal contractors or with contractors performing under Federally assisted construction contracts. ‐ 41 CFR § 60-1.1
Functional Affirmative Action Programs are those developed and prepared based on clearly distinct functional or business units within a corporate structure, as opposed to an AAP based solely on an establishment’s physical location. – OFCCP Compliance Manual
Good‐faith effort refers to a contractor’s appropriate efforts to meet its goals by eliminating identified barriers, expanding employment opportunities, and producing measurable results. See 41 CFR 60-2.16(a), 60-2.17(c), and 60-4.2(d)(2). – OFCCP Compliance Manual
Harassment is unwelcome conduct based on a protected characteristic (race, color, religion, sex, national origin, disability, veteran status, or protected activity). Harassment can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Sexual harassment may include unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature.

Harassment is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision, such as the victim being fired or demoted. – OFCCP Compliance Manual

The purpose of establishing a hiring benchmark for veterans is to create a quantifiable method by which a contractor can measure its progress toward achieving equal employment opportunity for protected veterans. Federal contractors must set a hiring benchmark for veterans on an annual basis. The benchmark may be equal to the national percentage of veterans in the civilian labor force, a percentage published and updated annually on the OFCCP website; or a contractor may calculate a benchmark using criteria provided by the OFCCP. The benchmark is not a rigid and inflexible quota that must be met, nor is it to be considered either a ceiling or floor for the employment of particular groups. Quotas are expressly forbidden. – OFCCP regulations
The Impact Ratio Analysis is a method for identifying personnel activity that should be investigated further. The IRA is a comparison of the selection rates of different racial, ethnic, and gender groups within an identified applicant or candidate pool. If the selection rate for one group is less than 80% of that of the group with the highest rate, then the IRA is adverse and further investigation or analysis is needed. – OFCCP Compliance Manual
A person is identified as an Individual with a Disability when he/she:

(i) Has a physical or mental impairment that substantially limits one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment

41 CFR § 60-741.2

In order to be considered to be an applicant under the OFCCP’s Internet Applicant rule, an individual must meet the four following criteria:

(i) Must express interest in position;
(ii) Must be considered;
(iii) Must possess the basic qualifications for the position; and
(iv) Does not withdraw from consideration prior to receiving an offer.

OFCCP Website

A Job Group consists of jobs or job titles having similar content, wage rates and opportunities. See 41 CFR § 60-2.12. – OFCCP Compliance Manual
A job group analysis is a method of combining and analyzing job titles within a contractor’s establishment. This is the first step in a contractor’s comparison of the representation of minorities and women in its workforce with the estimated availability of minorities and women qualified to be employed.

In a job group analysis, an establishment’s jobs/job titles with similar content, wage rates, and opportunities, are combined to form job groups. Similar content refers to the duties and responsibilities of the job titles that make up a job group. Similar opportunities refers to training, transfers, promotions, pay, mobility, and other career enhancement opportunities offered by the jobs within a job group. – 41 CFR § 60-2.12

The Joint Reporting Committee represents the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) for the purpose of administering the EEO-1 Reporting system. – EEO-1 Report Instruction Booklet
Line of Progression refers to a series of related jobs in a promotional sequence, generally starting with lower-paying jobs with less responsibility and progressing to higher‐paying jobs with greater responsibility. Often, lower-level jobs provide required training for movement to higher‐level jobs. – OFCCP Compliance Manual
Linkage agreements between contractors and appropriate recruitment and training sources are tools that may assist a contractor in meeting affirmative action goals and obligations and are often embodied in a Conciliation Agreement (CA). – OFCCP Compliance Manual
Minorities include men and women who are Black, Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native. As used in the OFCCP Compliance Manual, the term may refer to these groups in the aggregate or in an individual group. See 41 CFR 60-4.3(a), section 1d of Equal Opportunity clause. – OFCCP Compliance Manual
The North American Industry Classification System (NAICS) replaced the U.S. Standard Industrial Classification (SIC) system. NAICS was developed jointly by the United States, Canada, and Mexico to provide new comparability in statistics about business activity across North America. NAICS reshaped the way the changing economy is viewed. – US Census Bureau website
A Notice of Violation is a letter from OFCCP notifying a contractor that the agency has found violations of Executive Order 11246, Section 503 and/or Section 4212 during a compliance evaluation. The letter usually addresses the remedies that are required to resolve the violations and invites conciliation. – OFCCP Compliance Manual
The Office of Federal Contract Compliance Programs (OFCCP) is the Federal agency established within the U.S. Department of Labor with the authority to implement Executive Order 11246, as amended – EEO-1 Report Instruction Booklet
As the implementation and enforcement arm of Presidential policy government-wide, OMB carries out its mission through five critical processes that are essential to the President’s ability to plan and implement his priorities across the Executive Branch:

(i) Budget development and execution, a significant government-wide process managed from the Executive Office of the President of the United States and a mechanism by which a President implements decisions, policies, priorities, and actions in all areas, from economic recovery to health care to energy policy to national security;
(ii) Management oversight of agency performance, Federal procurement, financial management, and information/IT, including paperwork reduction, privacy, and security;
(iii) Coordination and review of all significant Federal regulations by executive agencies, to reflect Presidential priorities and to ensure that economic and other impacts are assessed as part of regulatory decision-making, along with review and assessment of information collection requests;
(iv) Legislative clearance and coordination (review and clearance of all agency communications with Congress, including testimony and draft bills) to ensure consistency of agency legislative views and proposals with Presidential policy; and
(v) Executive Orders and Presidential Memoranda to agency heads and officials, the mechanisms by which the President directs specific government-wide actions by Executive Branch officials.

Organizationally, OMB has offices devoted to the development and execution of the Federal Budget, various government-wide management portfolios, and OMB-wide functional responsibilities. – OMB website

An organizational profile is a depiction of the staffing pattern within an establishment. It is one method contractors use to determine whether barriers to equal employment opportunity exist in their organizations. The profile provides an overview of the workforce at the establishment that may assist in identifying organizational units where women or minorities are underrepresented or concentrated. A contractor must use either the organizational display or the workforce analysis as its organizational profile. – 41 CFR § 60-2.11
Placement goals serve as objectives or targets that are deemed to be reasonably attainable by means of applying every good-faith effort to make all aspects of an entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity.

In establishing placement goals, the following principles apply:

(i) Placement goals may not be rigid and inflexible quotas that must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
(ii) In all employment decisions, a contractor must make selections in a non-discriminatory manner. Placement goals do not provide a contractor with a justification to extend a preference to any individual, to select an individual, or to adversely affect an individual’s employment status on the basis of race, color, religion, sex, or national origin.
(iii) Placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.
(iv) Placement goals may not be used to supersede merit selection principles. Affirmative action programs prescribed by the regulations do not require a contractor to hire a person who lacks qualifications to perform the job successfully, or to hire a less qualified person in preference to a more qualified one.

41 CFR § 60-2.16

A promotion is any personnel action resulting in movement to a position affording higher pay, greater rank, change in job title, increase in job grade or increase in pay, requiring greater skill or responsibility, or the opportunity to attain such. – OFCCP Compliance Manual
A protected veteran is any veteran covered by 41 CFR Part 60-250 or 41 CFR Part 60-300. Protected veterans include: armed forces service medal veterans; disabled veterans; other protected veterans; recently separated veterans; special disabled veterans; and veterans of the Vietnam era. Please see the definitions below.

Disabled veteran means: (1) a veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or (2) a person who was discharged or released from active duty because of a service-connected disability.

Recently separated veteran means any veteran during the three year period beginning on the date of such veteran’s discharge or release from active duty.

Active duty wartime or campaign badge veteran means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense.

Armed Forces service medal veteran means any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209)

OFCCP Protected Veteran Infographic

A quota system, applied in the employment context, would impose a fixed number or percentage that must be attained, or which cannot be exceeded. The crucial consideration would be whether mandatory numbers of persons have been hired or promoted. Under such a quota system, a number would be fixed to reflect the population in the area, or some other numerical base, regardless of the number of potential applicants meeting necessary qualifications. Any employer failing to reach a set quota would be subject to sanction. It would be no defense that a quota may have been unrealistic to start with or that there were insufficient vacancies or qualified applicants, even though the employer tried in good-faith with appropriate recruitment methods to attain the quota.

Any system that elevates consideration of race, religion, sex or national origin over and above consideration of relative abilities and qualifications in determining who is to be hired, promoted, etc., in order to achieve a certain numerical position has the attributes of a quota system and is deemed to be impermissible under the standards set forth in current Federal regulations.

A goal, on the other hand, is a numerical objective, fixed realistically in terms of the number of vacancies expected and the number of qualified applicants available in the relevant job market. If through no fault of his own, an employer has fewer vacancies than expected, he is not subject to sanction because he is not expected to displace existing employees or to hire unneeded employees to meet a goal. Similarly, if an employer has demonstrated every good‐faith effort to include persons from a group that was the object of discrimination into the applicant pool being considered for selection but has been unable to do so in sufficient numbers to meet a goal, he is not subject to sanction. 2 CCH Employment Practices Guide, [[ page 4 line 38 unreadable ]] 3775, at p. 2096. – OFCCP v. National Bank of Commerce of San Antonio

Definitions of the race and ethnicity categories are as follows:

Hispanic or Latino – A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.

White (Not Hispanic or Latino) – A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

Black or African American (Not Hispanic or Latino) – A person having origins in any of the black racial groups of Africa.

Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) – A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

Asian (Not Hispanic or Latino) – A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

American Indian or Alaska Native (Not Hispanic or Latino) – A person having origins in any of the original peoples of North and South America (including Central America), and who maintain tribal affiliation or community attachment.

Two or More Races (Not Hispanic or Latino) – All persons who identify with more than one of the above five races.

EEO-1 Report Instruction Booklet

Reasonable Accommodation refers to:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires;
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a contractor’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the contractor’s other similarly situated employees without disabilities. – OFCCP Compliance Manual

A reasonable recruitment area is the geographical area from which a contractor usually seeks or reasonably could seek workers to fill jobs within a particular job group. – OFCCP Compliance Manual
Regression Analysis is a statistical analysis used to evaluate the interrelated effects of independent variables (such as education or prior experience) on a dependent variable (such as hires or compensation). OFCCP frequently cites results of regression analyses as “proof” in its claims or charges of systemic discrimination. – OFCCP Compliance Manual
Religious Accommodation refers to the obligation by all Federal contractors to accommodate the sincerely held religious observances and practices of its current and prospective employees. Typical religious accommodations include, but are not limited to: permitting the wearing of religious head coverings and other religious dress at the workplace; swapping employee shifts or permitting time off to allow for participation in religious observances; and modifying an employee’s work schedule to permit participation in Sabbath observances. An employer does not have to provide a religious accommodation that would cause an undue hardship on the conduct of his/her business. See the definition of “Undue Hardship (Religious Accommodation).” – OFCCP Compliance Manual
Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793) requires Federal contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. – 41 CFR § 60-741.1
A Show Cause Notice is a letter from OFCCP ordering a contractor to provide evidence demonstrating why enforcement proceedings should not be instituted. The Show Cause Notice provides that a contractor must come into compliance within 30 calendar days or OFCCP may recommend the commencement of enforcement proceedings – OFCCP Compliance Manual
Similarly Situated Employee Groups (SSEGs) are groups of employees – created for purposes of analyses – that are similarly situated in a contractor’s workforce. Currently SSEGs are not commonly used.

OFCCP PowerPoint

Statistical analyses results or outcomes (statistical evidence) are statistically significant if the probability that the results occurred by chance is so small that chance can reasonably be ruled out as the cause.
When the difference between actual and expected values is greater than 1.96 standard deviations, the probability the disparity occurred by chance is less than 5%. In employment discrimination cases, courts generally consider a difference of two or more standard deviations to be statistically significant and allow a valid statistical inference of discrimination to be drawn. – OFCCP Compliance Manual
According to 41 CFR § 60-1.3 , a subcontract is any agreement or arrangement between a contractor and any person in which the parties do not stand in the relationship of an employer and an employee:

(i) For the purchase, sale or use of personal property or non‐personal services which, in whole or in part, are necessary to the performance of any one or more contracts; or
(ii) Under which any portion of a contractor’s obligation under any one or more contracts is performed, undertaken, or assumed.

According to OFCCP, a subcontract is any agreement or arrangement between a contractor and any person in which the parties do not stand in the relationship of an employer and employee:

(i) For the purchase, sale or use of personal property or non‐personal services, which in whole or in part, is necessary to the performance of any one or more government contracts; or
(ii) Under which any portion of a contractor’s obligation under one or more government contracts is performed, undertaken, or assumed.

OFCCP Compliance Manual

Support Data is statistical data, documentation and other materials regarding a contractor’s employment policies, practices and actions used in the development, support and justification of its affirmative action program(s), or used to assess the affirmative action program’s effectiveness. – OFCCP Compliance Manual
Systemic Discrimination is a pattern or practice of discrimination or an identified employment practice with a disparate impact. OFCCP defines a systemic discrimination case as meeting one of two criteria:

(i) The case addresses a measurable pattern of discrimination, either based on findings from a regression analysis or based on any other appropriate aggregate analysis of data; or
(ii) The case addresses an identified practice applicable to multiple employees that results in discrimination, such as a practice of steering employees who are members of a protected class toward lowering paying jobs at hire.

There is no specific numeric threshold used to define a systemic case. – OFCCP Compliance Manual

Systemic compensation discrimination exists when there are statistically significant compensation disparities between similarly situated employees, after taking into account legitimate factors which influence compensation. Such legitimate factors may include education; experience; performance; productivity; location, etc. The determination of whether statistically significant compensation disparities exist between similarly situated employees after taking into account such legitimate factors must be based on a multiple regression analysis. However, legitimate factors that influence compensation may be qualitative or otherwise unquantifiable. In this case, non-statistical methods must be used to explain the multiple regression analyses. – OFCCP Interpretive Guidance
Termination refers to the separation of an employee from the active and/or inactive payroll. – OFCCP Compliance Manual
OFCCP uses the term underutilization when the percentage of minorities or women employed in a particular job group is less than would be reasonable expected given their availability percentage in that particular job group. See 41 CFR 60-2.10(a)(1). – OFCCP Compliance Manual
A claim of undue hardship is the only defense accepted by OFCCP for failing to make reasonable accommodations to known physical or mental limitations of an otherwise qualified individual with a disability. A contractor must demonstrate that the accommodation would cause “significant difficulty or expense” in light of particular resources and circumstances. [42 U.S.C. 12111(10)]

Undue hardship refers not only to financial difficulty, but also to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. See 41 CFR 60-250.2(u) and 60-250 Appendix A; 41 CFR 60-300.2(u) and 60-300 Appendix A ; 41 CFR 60-741.2(w) and 60-741 Appendix A.

Whether an accommodation would impose an undue hardship requires a case-by-case determination. See 41 CFR 60-741.2(w) for factors to be considered. – OFCCP Compliance Manual

An employer is required to reasonably accommodate an employee who’s sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. An undue hardship defense to providing religious accommodation requires evidence that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. Costs to be considered may include both direct monetary costs and the burden on the conduct of a contractor’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs; infringes on other employees’ job rights or benefits; impairs workplace safety; or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. – OFCCP Compliance Manual
Reports are to be completed by all non-exempt federal contractors and subcontractors with contracts or subcontracts for the furnishing of supplies and services or for the use of real or personal property. Pursuant to Federal Acquisition Requirement published and effective October 1, 2015, the $100,000 threshold for VETS-4212 reporting has been increased to $150,000. Accordingly, for the 2016 filing year beginning on August 1, the filing threshold for contracts entered into prior to October 1, 2015, is still $100,000; for contracts entered into on or after October 1, 2015, the filing threshold will be $150,000. The filing threshold for contractors continuing to file their VETS-4212 reports for 2015 is still $100,000.

Filing Your VETS-4212 Report

Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or VEVRAA)… requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era. – 41 CFR § 60-300.1
A workforce analysis is a listing of each job title as appears in applicable collective bargaining agreements or payroll records ranked from the lowest paid to the highest paid within each department or other similar organizational unit including departmental or unit supervision. – 41 CFR § 60-2.11
OFCCP has established a utilization goal of 7 percent for employment of qualified individuals with disabilities for each job group in a contractor’s workforce, or for a contractor’s entire workforce for AAP establishments with fewer than 100 employees. The utilization goal is not a rigid and inflexible quota that must be met, nor is it to be considered either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden. – OFCCP regulations