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Decades ago, long before employers used the Internet for recruiting, employers used to advertise job vacancies in the newspaper. The OFCCP knows this because its current sex discrimination guidelines reference the old newspaper way of recruiting. The current version of OFCCP’s regulations state:
Advertisement in newspapers and other media for employment must not express a sex preference unless sex is a bona fide occupational qualification for the job. The placement of an advertisement in columns headed “Male” or “Female” will be considered an expression of a preference, limitation, specification, or discrimination based on sex.
We kid you not. There used to be columns in the job announcement section of newspapers aimed at Males and Females. Does anyone else remember that? For those of you who want to look it up to see it for yourselves, it’s 41 C.F.R. Section 60-20.2(b). [As to that particular section, we are looking forward to OFCCP’s revised Final Rules, which will eliminate the old section entirely].
Way back then, government contractors wanted to come up with a way of communicating to job seekers that they not only followed principles of nondiscrimination, but they also were committed to the concept of Affirmative Action. Those are two different legal principles. The concept of nondiscrimination means that an employer is not going to discriminate. It is not going to take action (such as hiring, promoting, terminating, compensating, etc.) by factoring into its decision anything having to do with race, color, religion, national origin, sex, veteran status, or disability.1
Affirmative action is a very different concept. It acknowledges that an employer could intentionally and purposefully reach out to certain populations because they were females or because they were minorities in the hope of getting them to apply for job openings. Government contractors couldn’t make progress towards placement goals if they weren’t increasing the representation of qualified candidates in applicant pools. Employers were told that it was perfectly reasonable to target Historically Black Colleges and Universities (HBCU’s) because they were likely to find black job candidates there. It was perfectly rational to aim advertisements at the Society for Women Engineers because there likely were women engineer members. The action of trying to persuade candidates of a certain race or gender to apply for openings and to make them aware of the company’s presence in the community is a central component of the outreach and affirmative action obligation of the regulations enforced by OFCCP. Once a candidate applies, though, the nondiscrimination blinders went on, and no decision could be taken based on race, sex, religion, national origin, color, and so forth.
To communicate both sides of the coin, if you will, the government contractor community developed the tagline: EOE AA M/F/H/V.
What did this set of letters stand for?
To read it out loud, it was comprised of two full sentences: “We are an Equal Opportunity Employer. We take affirmative action for minorities, females, the handicapped and veterans.” At some point in the late 1980’s, maybe the early 1990’s, around the time of the Americans with Disabilities Act of 1990, the H in handicapped began to transition over to D for individuals with disabilities, to our recollection. Thus, the tagline evolved into EOE AA M/F/D/V, and it remained that way for another 24 years until the year 2014, when the OFCCP published its Frequently Asked Questions implementing the new revised veteran and disability regulations.2 OFCCP’s FAQ reads:
Vacancy Announcement Tagline
- May contractors satisfy the EEO tagline requirement by abbreviating "disability" and "protected veteran status" as "D" and "V," respectively?
Contractors may refer to those protected by Section 503 or VEVRAA by abbreviation, but such abbreviations must be commonly understood by those seeking employment. Simply using "D" and "V" are not adequate abbreviations for this reason. For those protected by Section 503 or VEVRAA, the tagline should at a minimum state "disability" and "vet" so that the tagline will be clearly understood by jobseekers.
Despite government contractors clamoring for OFCCP to put the precise and entire tagline it wanted everyone to use in the FAQ, it did not do that.
Nonetheless, for those government contractors still committed not only to equal employment opportunity but also to affirmative action, they began to put in place the new tagline:
EOE AA M/F/Vet/Disability
Then, in 2015, OFCCP issued its new gender identity and sexual orientation regulations, adding those protected categories to the nondiscrimination protections of Executive Order 11246 and OFCCP’s regulations at 41 C.F.R. Part 60. To assist government contractors in implementing the new regulations, OFCCP issued two new FAQs affecting the tagline:
Job Advertisement Tag Line
- How does the Final Rule change the requirements for solicitations and advertisements for employees?
Under the currently effective regulations, contractors may either state that they do not discriminate on any of the protected bases under Executive Order 11246, and list them all, or they may simply use the phrase "equal opportunity employer." These same options remain under the Final Rule. If electing the first option above, contractors subject to the Final Rule will be required to add “sexual orientation” and “gender identity” to the list of bases on which discrimination is prohibited. The use of the “LGBT” abbreviation is discouraged because it does not accurately reflect that people of all sexual orientations and gender identities are protected by the Final Rule. As a reminder, contractors will also be required to display an updated “EEO is the Law” poster reflecting the new protected bases once that poster is finalized by the EEOC and OFCCP.
- If I include all of the bases instead of the phrase “equal opportunity employer,” can I abbreviate “sexual orientation” and “gender identity” in job solicitations and advertisements?
No. Contractors cannot abbreviate “sexual orientation” and “gender identity” if opting to list all of the bases on which discrimination is prohibited under Executive Order 11246, as amended. For example, one acceptable tagline might be “Equal Opportunity Employer–minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” The intent is to provide as much notice as possible about the protected groups while allowing contractors some flexibility for constructing their taglines.
In short, because the new full listing of all the nondiscriminatory categories came across as completely cumbersome and unwieldly, we have seen a full scale retreat to what the regulations actually require, which may be found at 41 C.F.R. Section 60-1.41:
In solicitations or advertisements for employees placed on or behalf of a prime contractor or subcontractor, the requirements of paragraph (2) of the equal opportunity clause shall be satisfied whenever the prime contractor or subcontractor complies with any of the following: . . . . . (d) Uses a single advertisement in which appears in clearly distinguishable type the phrase “an equal opportunity employer.”
Is it a problem if a government contractor wanted to write EOE AA M/F/Vet/Disability/Sexual Orientation/Gender Identity? Yes and no. There is no such thing as affirmative action for individuals changing their gender identity, exploring their gender identity, or for individuals of any particular sexual orientation. It’s a nondiscrimination obligation, only. There is an affirmative action obligation for minorities, females, protected veterans, and individuals with disabilities. Towards that end, OFCCP commands government contractors to solicit race, ethnicity, gender, protected veteran status and disability status of applicants, in part to evaluate the affirmative action obligations.
By contrast, OFCCP is not requiring government contractors to ask applicants whether they are heterosexual, homosexual, bisexual, transgender or still questioning their gender identity. So a tagline that reads, “EOE AA M/F/Vet/Disability/Sexual Orientation/Gender Identity” could be wrongly implying that the company takes affirmative action based on the latter two categories.
And with that change in the law, we suspect and lament that the era of including the abbreviation AA in taglines has come to an end. We expect that we will continue to see the concept of affirmative action explained, identified, incorporated into policies, embraced in corporate culture, and listed in places where there is room for longer explanations, including intranet pages, career website landing pages and so forth, but insofar as the tagline in job advertisements is concerned, we think most employers will use “Equal Opportunity Employer,” as the regulations and OFCCP guidance permit. We are not sure whether job seekers will notice the change or even care about it. As partial OFCCP historians, though, we noticed it.
1. Timeline-wise in history, we’re going to stop the list of protected categories with just those, for now. We are deliberately not addressing the OFCCP’s two newest protected categories for a reason. They weren’t identified as protected categories during the newspaper era.↵
2. Note that this is in a FAQ, not in the regulations themselves.↵