Being an Affirmative Action practitioner is an interesting career choice – if it is a choice. (Many are assigned the responsibility: “Hey,” says the boss, “you’d be good at this.”)
However you got into the field, it is an interesting one. It requires multiple competencies, overlaps with many corporate functions (talent acquisition, compensation, accommodations, labor relations, IT, and others), and seeks to do good (to identify and remove barriers to equal access in the
workplace.)
If you are new to affirmative action program management, it can seem daunting. This blog outlines some basic steps to start to manage your program. Many were discussed at the recent NILG Conference. (Updated tips will be shared at the 2025 Conference! Please attend.)
Affirmative action practice is no walk in the park for seasoned practitioners. The experienced may find the details below a useful to-do list. Moreover, given OFCCP audit practice changes and Court decisions upending the compliance landscape (Mitratech’s prior blog), focusing on fundamentals may be a relief.
Therapists say that when some things are out of your control, focus on those things you can control.
Know Your Data
Affirmative Action Programs (AAPS) rely on just about every bit of employee-level detail in the talent acquisition system and HRIS your employer maintains.
Employee location, race/ethnicity, job title/role, EEO-1 job category, job family, time with company, time in current role, hire/transfer/promotion/termination detail, department, salary, level, band, range, grade…. It’s all important. Know the HR policies, procedures, and practices used to create and maintain this employee-level detail.
Are your HRIS system and applicant tracking systems used correctly? Figuring out that the data your AAPs rely on is maintained correctly and consistency isn’t simple. It takes a lot of knowledge about how your employer does business, good relations with the groups responsible for data input, and constant vigilance.
Your AAP is only as good as its underlying data. This makes understanding your data and data review critical to the success of your program.
Creating job groups is a critical element of affirmative action practice.
Job groups align titles that have “similar content, wage rates, and opportunities.” 41 C.F.R. § 60-2.12. The regulation continues, “This is the first step in the 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.” Job group analysis identifies whether your Affirmative Action Plan (AAP) reports underrepresentation – i.e., whether it identifies fewer employees of a specific race, gender, disability, or veterans’ status than expected given the demographics of the labor pool you draw from (Itemized Listing Paragraphs 2-6). Your AAP also uses job groups to analyze whether hires, promotions and terminations disfavor these protected groups (Itemized Listing Paragraph 18).
It is the job of your vendor software or consultant to determine if your job groups show workforce or transactional “adverse impact” disfavoring a protected group or groups. It is your job to use your knowledge of how your company operates and maintains its data to build job groups that reflect business realities. Keep job groups within EEO-1 job classifications; they can be as simple as groupings within a of like titles (job families if you have them) and job levels. They can cross business units (career progression can mean capitalizing on the skill sets common to a job group to move into different units within the business). Align employees into relatively small groups, preferably of 30 – 50 where possible. Bigger groupings tend to generate the statistical “adverse impact” that is an initial indicator of a program deficiency. Your groupings may be different for the different establishments or business units you report given that employees at different work locations or business segments can have different responsibilities.
Properly designed, job groups meaningfully reflect the diversity profile of the workplace establishment or business unit your AAP or FAAP reports. If despite reviewing your job groupings adverse impact persists, you must develop “action-oriented programs to correct any problem areas”. If audited, you will have to document these efforts (Itemized Listing Paragraph 7).
As a first step, make sure you understand your job groups. More than one presenter at the NILG Conference said that many practitioners have not reviewed them for years. Perhaps you inherited yours, perhaps you haven’t kicked the tires for a while. If you do not know how they are constructed and the ramifications of their use, you are driving blind.
As noted above, OFCCP audit requires documentation of efforts taken to address underrepresentation. OFCCP is also particularly concerned with documentation concerning recruitment outreach, compensation practices, and selection practices (especially if you are using Artificial Intelligence in selection).
Is the above everything you need to maintain a compliant affirmative action program? No, but it’s a ‘scalable’ good start and will help ensure that you have critical data and records that support your program.
One more thing. Make sure you retain records for up to three years – review OFCCP’s outline of the requirements here.
Note: Mitratech was a gold sponsor of the NILG 2024 National Conference; the blog author is an NILG Board member. This said, nothing beats being at the Conference. Unique dimensions to the in-person experience include meeting agency representatives and getting to know
knowledgeable lawyers, consultants, and your peer practitioners. Please register for the 2025 NILG Annual Conference, held July 22-25, 2025 at National Harbor, Maryland.
