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Equal employment opportunity (EEO) and ensuring fair employment access for all people is central to the American Dream and a fundamental concept that both OFCCP and the contractor community strongly support. The Affirmative Action Verification Initiative (AAVI) is a significant step by OFCCP in seeking to verify compliance with basic affirmative action obligations that come with being a federal contractor or subcontractor, and that have done so much to enhance equal employment opportunity in the United States. It is also a significant opportunity for contractors and subcontractors to adopt the best practice of ensuring proactive coordination between their Affirmative Action Program (AAP) and their Diversity, Equity, Inclusion, and Accessibility (DEIA) Program.
The Affirmative Action Verification Initiative will be a game changer for the Federal contractor community. One of the concerns expressed about OFCCP in the past, including by the Government Accountability Office (GAO), was that the agency does not have an adequate mechanism for enforcing the basic affirmative action requirements to ensure that every federal contractor and subcontractor has an affirmative action program in place at every establishment. AAVI changes that.
There are about 25,000 federal contractors in the United States and many more subcontractors. The Government Accountability Office estimates that a significant number do not have full affirmative action programs in place. There is a concern that some companies don’t put basic affirmative action compliance plans in place until they are scheduled for an audit – which is counter to the intent of the program. Companies that are federal contractors and subcontractors, who meet the OFCCP jurisdictional thresholds for having affirmative action programs, are required to comply with their obligations by establishing affirmative action programs from the outset and not waiting until being audited.
Under AAVI, OFCCP will check that companies are registered and also will identify their parent corporations, which will likely lead to more of a focus on the company’s corporate structure. Contractors and subcontractors will be required to certify whether they have affirmative programs in place for each establishment. Parent companies and affiliates may need to have affirmative action programs in place and certify with OFCCP as well, or be prepared to show they should not be treated as single entities with the federal contractor or subcontractor.
OFCCP defines affirmative action as the obligation on the part of the contractor to take action to ensure that 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.
Affirmative action under EO 11246 isn’t quotas or preferences. It is about assessing that your employees represent your area’s overall workforce according to census data – and if you have an under-representation of a particular group based on race, ethnicity, or gender, to set goals to address that through outreach and recruitment. There are similar obligations where there is under-representation based on disability and protected veteran status under Section 503 of the Rehabilitation Act and VEVRAA. Affirmative action means that companies are eliminating barriers to employment, reviewing hiring practices and pay equity practices to ensure that all Americans have a fair opportunity to advance based on merit, without regard to protected class basis
The Affirmative Action Verification Initiative will help support and enforce equal opportunity by ensuring that more companies are creating affirmative action programs. Companies should also view this as an opportunity to enhance their Diversity, Equity, Inclusion, and Accessibility (DEIA) programs by building them on the strong foundation of comprehensive affirmative action programs. AAPs provide very helpful data that can drive the DEIA program, and DEIA initiatives can be included in the AAP narratives, helping to demonstrate good faith efforts.
In ensuring coordination and consistency between affirmative action programs and DEIA programs, contractors can ensure that diversity goals are set based on actual AAP data, and that diversity goals are achieved through outreach and recruitment. Contractors can incorporate compensation system self-audits consistent with AAP obligations, which can help achieve pay equity as part of DEIA. Centralized accommodation systems and accessibility can be included as part of an AAP, and help achieve the accessibility component of DEIA in the process. AAP/DEIA programs can involve chief executives, chief diversity and accessibility officers, employee resource groups, affinity groups, stakeholders, and allies in the elimination of barriers and enhanced EEO, helping fulfill the company’s commitment to inclusion. By doing sufficient outreach, recruitment, and training in AAPs, companies will find that, over time, their DEIA programs will be more successful, and their workforce will be more diverse and representative of the population in their area. AAP can help DEIA programs achieve their goals in a manner consistent with law and regulation.
Affirmative action programs and DEIA programs simply make good business sense, in addition to resulting in greater legal compliance. Companies that don’t promote equal employment opportunity are underutilizing the talents and skills of the American workforce and building work environments that are not inclusive, which ultimately hurts productivity, in addition to causing potential liability. A proactive, best practice-based approach to AAVI, where companies coordinate AAPs and DEIA programs will benefit employees, companies, and our economy as a whole.
Learn more about the Affirmative Action Verification Initiative:
OFCCP Directive 2018-07 – Affirmative Action Program Verification Initiative
Affirmative Action Program Verification Interface (presently includes a ‘Coming Soon’ message)
OFCCP AAVI Federal Contractor User Guide