Office of Federal Contract Compliance Programs (OFCCP)
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is announcing a significant expansion of its Mega Construction Project (MCP) Program to ensure that federal construction contractors and subcontractors–companies that receive taxpayers’ dollars to construct buildings, highways, and other federally funded or federally assisted projects—make job opportunities in the construction trades available to applicants and employees regardless of their race, color, religion, sex, gender identity, sexual orientation, national origin, disability, or protected veteran status. For the first time, OFCCP is making strategic investment of agency resources at all levels (national and regional) to ensure that the nation’s largest construction projects can make a real difference in employment opportunities for the thousands of women, minorities, individuals with disabilities, and protected veterans who have the qualifications, experience, and determination to work on large, federally funded or federally assisted construction projects in their communities.
U.S. Department of Labor – Office of Federal Contract Compliance Programs (OFCCP) – OFCCP’s Mega Construction Project Program
Contractors may establish higher goals if they desire. Although a contractor is required to make good faith efforts to meet their goals, the goals are not quotas and no sanctions are imposed solely for failure to meet them Goals under Executive Order 11246, as amended, do not require that any specific position be filled by a person of a particular gender, race, or ethnicity.
Instead, the requirement is that contractors engage in outreach and other efforts to broaden the pool of qualified candidates to include minorities and women.
The use of goals is consistent with principles of merit, because goals do not require an employer to hire a person who does not have the qualifications needed to perform the job successfully, hire an unqualified person in preference to another applicant who is qualified, or hire a less qualified person in preference to a more qualified person.
Goals may not be treated as a ceiling or a floor for the employment of members of particular groups.
A contractor’s compliance is measured by weather it has made good faith efforts to meet its goals, and failure to meet goals, by itself, is not a violation of the Executive Order.
CHAPTER 3- CONSTRUCTION INDUSTRY COMPLIANCE PROGRAM
3A INTRODUCTION This chapter contains procedures for conducting compliance reviews of construction contractors and subcontractors, including those involved in federally assisted construction projects. The purpose of the reviews is to determine whether contractors are complying with requirements prohibiting discrimination, and requiring affirmative action to ensure equal employment opportunity without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or protected veteran status. Additionally, federal contractors and subcontractors are prohibited from, under certain circumstances, taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or the pay of their co-workers. This chapter also contains procedures specific to Mega Construction Projects.1
Synopsis of Law Executive Order 11246
The Executive Order prohibits federal contractors and federally–assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Additionally, Executive Order 11246 prohibits federal contractors and subcontractors from, under certain circumstances, taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or the pay of their co–workers.
Best Practices for Construction Contractors and Subcontractors
To help contractors comply with the requirements discussed in the frequently asked questions on nondiscrimination in the construction trades, OFCCP offers the following recommendations for best practices that will assist construction contractors in preventing, detecting, and remedying potential discrimination in their workforces.
What is the difference between a direct federal construction contract and a federally-assisted construction contract?
A direct federal construction contract is an agreement or modification to an agreement entered into directly with the federal government through one of its agencies for the purchase, sale or use of personal property or non-personal services, where the term “non-personal services” includes construction services. For example, a construction contract awarded by the General Services Administration to build a federal courthouse would constitute a direct federal construction contract.
A federally–assisted construction contract is any agreement or modification which is paid for in whole or in part with funds obtained from the federal government but where the government is not a party to the construction contract. Federally–assisted contracts could be funded through, for example, a federal grant, contract, loan, insurance or guarantee. An example of a federally–assisted construction contract could be a contract to build highways or bridges that is funded by federal grants to state Departments of Transportation.
Executive Order 11246 applies to both direct federal construction contracts and federally assisted construction
If a contractor fails to meet its participation goals, is it in violation of Executive Order 11246?
Not necessarily. Contractors must engage in outreach and other good faith efforts to broaden the pool of qualified candidates to include minorities and women. Good faith efforts include, for example, monitoring the effectiveness of outreach and recruitment strategies in attracting diverse applicants and linking with different or additional referral sources in the event that recruitment efforts fail to produce a diverse pipeline of applicants.
The goals are not quotas, however, and no sanctions are imposed solely for failure to meet them. A contractor’s compliance is measured by whether it has made good faith efforts to expand its employment opportunities and break down barriers to employment for minorities and women. Failure to meet goals, by itself, is not a violation of the Executive Order.
In what ways are contractors required to disseminate their EEO policies?
Contractors are required to disseminate their EEO policies both internally to their employees and externally to applicants and referral sources.