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OFCCP: Ask the Experts
OFCCP Ask the Experts
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.
Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Oct 24, 2016
Here is the regulatory language on contracts with religious entities. §60-1.5 Exemptions. (a)(5)
(5) Contracts with religious entities. Section 202 of Executive Order 11246, as amended, shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.
Here is OFCCP FAQs on EO 13672 that may also clarify: https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html#Q9
Religious Employers and Religious Exemption
How does Executive Order 11246 apply to religious organizations?
Executive Order 11246, as amended, only applies to employers that are federal contractors or federally–assisted construction contractors. A religious organization will only be subject to the Final Rule if it enters into a new covered federal contract or subcontract, or modifies an existing covered federal contract or subcontract, on or after the Final Rule’s effective date of April 8, 2015. Religious organizations that are not contractors, but recipients of grant funds, for example, the Senior Farmers’ Market Nutrition Program, the Office of Refugee Resettlement Voluntary Agencies Matching Grant Program, and the Community Development Block Grant (CDBG) program, are not subject to Executive Order 11246. On the other hand, if a religious organization does hold a covered contract, it is prohibited from discriminating on any of the protected bases listed in Executive Order 11246, as amended, including the newly added categories of sexual orientation and gender identity. The Executive Order and OFCCP regulations do provide, though, an exception that permits religious organizations to prefer to employ only members of a particular religion. The so–called “ministerial exception,” also discussed below, may apply as well.
Does the Final Rule alter the existing religious exemption in EO 11246 in any way?
No. EO 13672 did not change the existing religious exemption, which was added to EO 11246 by President Bush in 2002, allowing religiously affiliated contractors (religious corporations, associations, educational institutions, or societies) to favor individuals of a particular religion when making employment decisions. The regulation implementing that exemption is located at 41 CFR 60–1.5(a)(5).
That regulation states that the nondiscrimination obligations of Executive Order 11246 “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
In addition, the Supreme Court has recognized that the First Amendment to the Constitution requires a “ministerial exception” from employment discrimination laws, which prohibits the Government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy.
What kinds of organizations are covered by the religious exemption of Executive Order 11246?
Under section 204(c) of Executive Order 11246 and 41 CFR 60–1.5(a)(5), the Executive Order does not apply to a government contractor or subcontractor that is a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of the organization’s activities. This language mirrors the religious exemption of Title VII of the Civil Rights Act of 1964, and OFCCP will follow EEOC and courts’ interpretations of Title VII when determining which organizations can claim the exemption and how it applies. Under established case law, this exemption applies only to those institutions whose purpose and character are primarily religious. In determining whether a contractor qualifies for this exemption, OFCCP will consider all significant religious and secular characteristics of the organization, with each case turning on its own facts. Although no one factor is dispositive, significant factors that courts have considered to determine whether an employer is a religious organization for purposes of Title VII include: whether the contractor is not for profit, whether its day–to–day operations are religious (e.g., are the services the contractor performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether the contractor’s articles of incorporation or other pertinent documents state a religious purpose; whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or other religious organization; whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; whether the contractor holds itself out to the public as secular or sectarian; whether the contractor regularly includes prayer or other forms of worship in its activities; whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and whether its membership is made up of coreligionists.
How can contractors invoke the religious exemption under 41 CFR 60–1.5(a)(5)?
Executive Order 11246 and 41 CFR 60–1.5(a)(5) do not require contractors to obtain pre–approval from OFCCP to take advantage of the religious exemption. In the past, though, some contractors have submitted written requests for exemptions to OFCCP’s Division of Program Operations, explaining why they qualify for the exemption. Contractors can also invoke the exemption in connection with an OFCCP compliance evaluation, or when they enter into a covered contract or subcontract. OFCCP carefully considers each of these requests in coordination with the Solicitor of Labor.
How does EO 11246’s exemption for religious organizations operate in light of the addition of the new protected categories?
In general, this exemption allows religious organizations to prefer to employ only members of a particular faith, but it does not allow religious organizations to discriminate in employment on the basis of race, color, sex, sexual orientation, gender identity, or national origin.
How does the “ministerial exception” interact with Executive Order 11246?
The Supreme Court has recognized that the First Amendment requires a “ministerial exception” from employment discrimination laws, which prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy. In determining whether the ministerial exception applies to an employer’s decision in a particular case under Executive Order 11246, OFCCP, as guided by Supreme Court precedent, makes an assessment of all of the facts and circumstances of employment, including the functions performed by the employee, the job title given to and used by the employee, and the amount of time the employee spends on particular activities.
Asked by Colin H. - Oct 21, 2016
I work for a federal contractor and we are considering adding a personality assessment by a company called Rembrandt. At a past employer, we stopped using personality assessments due to growing scrutiny on how valid they were in predicting job performance and the fact that we were not doing independent job analyses on each (of many) jobs we were using them on. Fast forward to four years later, and my new company of about 1150 employees wants to bring them in. My management isn't as concerned about the chance we get audited and they dig into our assessment practices. Should I be worried and what can I show them to make sure they understand what the use of personality assessments might mean in an audit?
Hi Colin -- Your concerns are not misplaced, as you correctly identified the issues related to using personality assessments and any other type of test in the employment process. The risk of any type of "test" is the potential for adverse impact in the results. If there is adverse impact against any particular group, OFCCP could request a validation study to show the relationship between performance on the test/assessment and performance in each position for which the test/assessment is a required step. Even if your complete (and expensive) validation study shows high correlation, OFCCP may still reject the results, leading to a prolonged audit. In short, your risk is lower if there is no adverse impact in the results. But the adverse impact calculations need to be conducted on an ongoing basis.
Answered by Carla Irwin from Carla Irwin & Associates, Inc. - Oct 24, 2016
Colin - A federal contractor must comply with Uniform Guidelines on Employee Selection Procedures (UGESP) when it comes to using a test as part of the selection process. As you will read through these resources, if your company decides to move forward with the personality assessments validity is a must.
Here is a link to a good resource: http://www.uniformguidelines.com/
Here is a link to the CFR: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=3b71cb5b215c393fe910604d33c9fed1&rgn=div5&view=text&node=41:22.214.171.124.3&idno=41
OFCCP FAQs for The Ricci Case: https://www.dol.gov/ofccp/regs/compliance/faqs/Ricci_FAQ.htm
Some information you can share with your management:
-An article from Sandra Zeigler on using tests in employment process: https://secure.localjobnetwork.com/a/t-using-tests-in-the-employment-process-au-zeigler,-esq.,-sandra-articles-a6424.html
-OFCCP Settlements on hiring discrimination which included a test https://www.dol.gov/newsroom/releases/ofccp/ofccp20160511 https://www.dol.gov/opa/media/press/ofccp/OFCCP20141501.htm https://www.dol.gov/opa/media/press/ofccp/OFCCP20121443.htm https://www.dol.gov/newsroom/releases/ofccp/ofccp20131996
Asked by Austin B. - Oct 19, 2016
When you survey your current staff and ask if they have a disability using the Voluntary Self-Identification of Disability form, do you need to survey those who are not paid?
Austin - you only have to survey your employees that are on your payroll and counted in the AAP.
What are the laws around issuing Writing Tests
Asked by Anonymous - Oct 17, 2016
We have a position which requires strong writing skills, and the Hiring Manager would like to issue a writing test. In HR's opinion, we feel that reading and ranking a writing test would be very subjective and potentially could lead to a candidate claiming discrimination given that the test results are not black and white and cannot be validated. Can you please share how widespread the practice of issuing Writing Tests are and how to do it safely and legally if it is not seen as a discriminatory practice?
Pre-employment testing is a selection tool that can provide valuable information to assist with selecting the most qualified applicant for a particular job. In certain fields, such as Public Relations, knowing the writing skills of an applicant is critical and the company may ask applicants to prepare a press release as part of the interview process.
The use of selection tools, however, may violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law. No selection tool should be implemented without an understanding of its effectiveness, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
There is always a risk when implementing pre-employment testing. The testing needs to be valid and reliable. Employers should be consistent in their use of the testing and avoid creating an adverse impact, either intentionally or unintentionally, on any particular group.
The EEOC has published a fact sheet setting forth its view on pre-employment testing that you might find useful.
Asked by Anonymous - Oct 17, 2016
Recruiters source for candidates within our own Applicant Tracking System (searching for candidates from all of the positions candidates have ever applied to using key word searches versus JUST looking at the candidates that have applied for a given position). In addition, we also search for candidates on LinkedIn and CareerBuilder and reach out to them and send them the link to apply if they are interested. What are the rules for documenting searches per OFCCP? Do we have to document when we search for candidates: 1.) within the pipeline of the position to narrow down the pool of candidates to find those who are the best fit, and/or 2.) when we search within the database of our entire database at large to find candidates who applied for other openings that might be a fit, and/or 3.) when we search within LinkedIn, and CareerBuilder, etc.
And are there rules for how and where to document? Thank you!
OFCCP’s Internet Applicant Recordkeeping Rule requires federal contractors to save certain records when they conduct resume database searches, whether it is an internal or external database.
When you are searching your own applicant tracking system as you described, you are essentially conducting an internal resume database search. The records you need to keep for internal resume database searches are as follows:
• A record of each resume added to the database • A record of the date each resume was added to the database • A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used
When you are searching other websites such as CareerBuilder, you are conducting an external resume database search. The records you need to keep for external resume database searches are as follows:
• A record of the position for which each search of the database was made • The date of the search for each search conducted • The substantive search criteria for each search conducted – such as experience, degree, location, industry, and key words used • The resumes of job seekers who met the basic qualifications for the particular position who you considered for the position. You are not required to maintain the resumes of individuals if you did not consider them for the position. You are also not required to maintain a record of searches that do not produce candidates that meet the basic qualifications.
When you are selecting from within the applicants who have applied to the position, you are required to keep a record of any tests, test results, and interview notes. While there is no OFCCP requirement for contractors to use disposition codes, it is in the contractor’s best interest to use strategic disposition codes that record all of the following:
• The stage in the selection process when the candidate was removed from consideration for the position • The reason for removing the candidate from consideration • The person who made the decision to remove the candidate from consideration
Are there requirements on how long a job MUST be posted?
Asked by Anonymous - Oct 14, 2016
We are considering developing a firm policy around how long our positions will be posted. I have some concerns about holding us to a minimum number of days that a posting will be live both internally and externally. Does the OFCCP REQUIRE a certain amount of time for postings? I was advised per an AAP attorney, that we should require our positions be posted for a minimum of three days externally and 4-5 days internally, but I didn't think there was anything REQUIRED by OFCCP around posting requirements. I'm confused! Please advise.
The Equal Opportunity Clause of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) states that: “Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a bona fide job order, including the acceptance of referrals of veterans and nonveterans.”
This means that a contractor must list or post their jobs with the Employment Service Delivery System (ESDS) as soon as they start recruiting for it, and keep the posting active until it is filled. It does not necessarily specify a minimum or maximum number of days that jobs must be posted.
That said, this doesn’t mean that a contractor cannot post a job for a longer period of time than what the law requires. You should also keep in mind that the answers provided here on Ask the Experts are of a general nature and should never be substituted for legal advice. Your attorney knows your company’s specific situation and circumstances more, and may have valid reasons for advising you to list your jobs for a certain period of time. I would follow your attorney’s advice because he/she knows your situation best.
This forum provides information of a general nature. None of the answers or information provided is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. Additional facts and information or future developments may affect the subjects addressed. You should consult with an attorney about your specific circumstance before acting on any of this information since it may not be applicable to your situation. The Local JobNetwork™ and all experts expressly disclaim all liability with respect to actions taken or not taken based on any or all of the contents of this forum.