I suspect my answer will be happy news: NO, grantees are NOT covered by any OFCCP regulations, including those having to do with written Affirmative Action Programs. You might want to read the terms of your grant carefully to make sure that the grantor has not included in the terms of the grant some "EEO and AA" requirements, such as filing an EEO-1 Report, compliance with Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other federal statutes enforced by the EEOC to make sure you are make any adjustments to your policies or practices that ARE required by the grant. However, no agency but the OFCCP has the authority to require a WRITTEN Affirmative Action Program like the ones contemplated by OFCCP regulations. The above enumerated laws, and some others, are non-discrimination statues and regulations only, although some may contain some "outreach" language and the reasonable accommodation efforts required by the ADA might be thought of as somewhat “affirmative”. Nevertheless, even where the OFCCP does not have jurisdiction over them, prudent employers in 2020 probably will find it wise to behave in compliance with "cast the net widely" recruitment practices even if not required by FEDERAL law. Something that probably will not be happy news is that of these laws while only the EEO-1 (or some iteration of the Equal Opportunity Report depending on the type of employer) requires a report to be SUBMITTED to the government, if the employer is covered by Title VII then it also has a record KEEPING obligation and, arguably an obligation to at least annually analyze the selection rate of applicants to ensure that its policies and practices are, in fact, non-discriminatory. These record obligations are included in The Uniform Guidelines on Employee Selection Procedures or UGESP. These regulations are hugely burdensome, especially if the employer does a great deal of Internet "sourcing". Government contractors -- and ONLY government contractors -- get a significant "break" in complying with the Uniform Guidelines on Employee Selection Procedures". This “break” comes in the form of a codified definition of “Internet Applicant” adopted by the OFCCP -- and only the OFCCP, NOT the EEOC -- has, for government contractors. Effectively, the OFCCP has decided it will enforce the UGESP record keeping obligations only with respect to what IT (the OFCCP) defines as "an Internet Applicant". The EEOC has specifically NOT joined the OFCCP in this "prosecutorial discretion" so non-contractor employers do not have a clear road map for compliance with these ridiculously old and very arcane regulations. What IS good news for non-contractors is that, unlike the OFCCP, the EEOC does not "audit" compliance with these regulations. Therefore, very candidly, the risk of getting "caught" not complying with The Uniform Guidelines on Employee Selection Procedures (UGESP) is probably much less than a contractor's risk. HOWEVER, in the event a Title VII COMPLAINT is filed with the EEOC alleging that a non-contractor employer has used/is using a selection device (e.g. written test, non-job related education prerequisite, English only requirement, etc.), the EEOC will certainly base its investigation on the employer's own records such as applications (which must be retained for a year from the date of the selection/rejection); copies of any written tests administered; the employer's selection procedures, etc. to determine whether there is "adverse impact" against women or a minority group. Particularly if the complainant alleges that other women and/or other applicants of color have similarly been denied employment opportunities (hire, training, promotion, retention) the EEOC will investigate using the employer’s own records. By the way, failing to have kept the required records is not a defense, it is a violation in and of itself and, according to the UGESP creates a PRESUMPTION that if the records HAD been kept they would show adverse impact against the complainant/the class. A more complete answer is beyond the scope of this question (and even this much may be more than you wanted to hear at the moment!), but I invite you to follow up with me off line if you would like to talk about this. And I urge all employers to KNOW whether their TOTAL selection process excludes women or a minority group at a significantly higher rate than whites or men. And employers who give standardized tests (typically "paper and pencil" -- even if done on line -- but also including "performance" tests -- especially physical ability tests) should be particularly diligent in monitoring the respective “success rates” of test takers by race, national origin and gender – possibly also by age. IF such a test has an adverse impact any employer using it should be well prepared to make a case for how the “test” is related to/predictive of successful performance or otherwise there a business necessity (e.g., a legal licensing requirement or security clearance). This is much less than test “validation” as required by UGESP but rather more than having no idea if your “must be “a college graduate” in order to be selected for any exempt position” requirement is screening out minorities at a disproportionate rate! BTW, that requirement a) may be an “unwritten rule”, b) almost certainly disproportionately excludes minorities and may also have adverse impact based on sex, depending on the nature of the jobs, and c) most (all?) employers would be hard pressed to articulate a business necessity for it. ESB NOTE: “must be a college graduate” is different than “must have a bachelor’s degree in mechanical or electrical engineering”. And “any exempt position” is different than “for the position of Engineer II”. Best wishes, Ellen Shong Bergman

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