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What was “on the front burner” before you went on vacation (staycation)? You may have stopped for a while, but work didn’t. Here’s a look back at some recent developments that need ongoing attention.


Think about using your Affirmative Action Plan (AAP) to mitigate some effects of the pandemic.

Don’t wait for an OFCCP audit. Your AAP “self-audit” obligation requires that you review who is furloughed, who has been laid off, and who returned to work. If you are on a calendar year plan, your ongoing “monitoring period” review is the perfect time for this.

Review activities to justify that decisions continue to be based on business necessity, using neutral criteria established in advance. Review “voluntary” termination with HR and legal to determine whether COVID affects coding. Does an employee who has elder care AND childcare obligations really need to become a “voluntary” termination? What forms of leave are – or should be – available?

Have terminations changed your patterns of goals? Have you lost the benefit of years of diversity hiring? Now is the time to prepare a diverse pipeline, so that future hiring will truly ensure equal access.

Consider whether recent COVID-related changes in the workplace require new job or workgroup descriptions. If your company decides to make work-at-home permanent, concentrate on where to report telecommuters – so not everybody rolls up to corporate headquarters!

Race in America

The median household net wealth of blacks is a tenth of that of white Americans. Equal employment is an important remedy for this imbalance. Your AAP can make a difference to the degree its goals and diagnostics are meaningful.

Consider adopting an FAAP structure to report and monitor data about your company in a meaningful way, or create similar organizational/leader-based views, even if you don’t have an FAAP structure. This data can often provide clearer actionable metrics than location-specific plans, which do not reflect business and decision-making structures. Work under legal privilege.

Don’t forget Historically Black Colleges and Universities (HCBU) and your local community colleges. Your federal contractor requirements, properly managed, are now more important than ever. Focus on patterns in retention and promotion (and keep an eye out for OFCCP’s promised promotion-focused reviews). If your company recently made a statement about race, review your company’s social responsibility programs. Do any center on access to education, health care, and transportation – areas of gross disparity between minority and white communities today? Have internal conversations occurred about making your statement more than words (and take credit in your plans)?


June brought a big Supreme Court win for LGBTQ rights: Title VII prohibits discrimination in the workplace based on sexual orientation and gender identity.

What does this mean to your practice? The OFCCP does not enforce Title VII. However, OFCCP compliance under Executive Order 11246 prohibits contractors from discriminating against individuals on the basis of sexual orientation or gender identity. The decision is an opportunity for you to champion LGBTQ rights in your plan’s communications and training. The Executive Order does not require that you maintain a plan for LGTBQ.

LGBTQ self-ID is a “wrinkle.” A recent OFCCP FAQ states that companies can solicit “non-binary” (not male, not female) self-ID. The FAQ is silent on how this affects gender availability calculations. Until the OFCCP offers clarification, you may choose to “manually annotate” the additional self-ID with your plan, separate from your male/female metrics. This is how EEOC specified that the issue be handled in the now defunct EEO-1 pay data report. You may also consider excluding those who self-ID as “non-binary” from your male/female gender analyses – just make sure you inform the OFCCP of what you are doing, and review your practices should OFCCP provide further detail on how to address this issue.


Paul McGovern
Managing Partner
Praxis Compliance

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