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Chapter 1— General
TABLE OF CONTENTS
1A INTRODUCTION TO CHAPTER I
The words and phrases contained in this chapter generally are used by the Office of Federal Contract Compliance Programs (OFCCP) and the field of employment discrimination law. They are defined or described for the purpose of providing a common understanding among OFCCP staff and others who use this Manual.
1B GLOSSARY OF GENERAL DEFINITIONS
Accessibility
The extent to which a contractor's facility is readily approachable and usable by individuals with disabilities, particularly such areas as the personnel office, worksite and public areas.
Accommodation
See "Reasonable Accommodation," "Undue Hardship," and "Religious Accommodation."
Act
As used in this Manual, provisions enforced by OFCCP of:
- The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (P.L. 93-580, 88 Stat. 1593, 38 U.S.C. 4212), as amended (previously referred to as "Section 402" or, until 1991 amendments, "38 U.S.C. 2012"); or
- The Rehabilitation Act of 1973 (P.L. 93-112, 87 Stat. 393, 29 U.S.C. 793), as amended.
Administering Agency
Any department, agency or establishment in the Executive branch of the Government, including any wholly-owned Government corporation, that administers a program involving federally assisted construction contracts. See 41 CFR 60-1.3
Administrative Complaint
The document that begins an administrative enforcement proceeding under Executive Order 11246, Section 503, or 38 U.S.C. 4212.
Administrative Law Judge (ALJ)
The presiding official at administrative enforcement proceedings under 41 CFR Part 60-30. Also see 41 CFR 60-1.26(c), 60-250.29(b) and 60-741.29(b).
Administrative Procedure Act
A law enacted by Congress in 1946. It establishes basic requirements to which an administrative process must conform. It includes standards for rulemaking, for certain formal adjudication, and for court reviews of certain administrative actions.
Adverse Impact
A substantially different rate of selection in hiring, promotion, transfer, training, or other employment related decisions for any race, sex, or ethnic group. A finding of adverse impact by itself, does not establish a violation device in question based on job relatedness or business necessity. See definition of disparate impact. See also Chapter 7 of this manual.
Affected Class
A group of persons, identifiable by name or characteristics, who are the victims of a pattern or practice of discrimination.
Affirmative Action
Actions, policies, and procedures to which a contractor commits itself that are designed to achieve equal employment opportunity. The affirmative action obligation entails: (1) thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible, and (2) recruitment and outreach measures. See Manual Section 2A02(b).
Affirmative Action Clause
The clauses set forth in 41 CFR 60-250.4 and 41 CFR
60-741.4 that must be included in Federal contracts and subcontracts. These two clauses outline the affirma-tive action requirements for special disabled veterans, Vietnam era veterans (41 CFR 60-250.4) and individuals
with handicaps (41 CFR 60-741.4). The clauses are a part of covered contracts regardless of whether they are physically incorporated into the contract and whether the contract is written. See also definition of "Equal Opportunity Clause."
Affirmative Action Program (AAP)
A written program, meeting the requirements of 41 CFR Part 60-2, 60-250.5 or 60-741.5, in which a contractor annually details the steps it will take and has already taken, to ensure equal employment opportunity.
Aggregate Workforce
A construction contractor's total workforce in each trade on all construction work including Federally funded or assisted projects and all nonfederal projects within a designated geographical area established under 41 CFR 60-4.6. See definition of "Covered Area."
American Indian-Alaskan Native
A person with origins in any of the original peoples of North America who maintains cultural identification through tribal affiliation or has community recognition as an American Indian or Alaskan Native.
Anecdotal Evidence
Oral or written narrative evidence. A short account of some happening, usually personal. (For example, interview or written statements given to an investigator that record personal experiences of employees can be anecdotal evidence of discrimination.)
Anti-nepotism Policy
A policy or practice that limits the simultaneous employment of two or more members of the same family.
Applicant Flow Log
A chronological compilation of applicants for employ-ment or promotion, showing the persons categorized by race, sex and ethnic group, who applied for each job title (or group of job titles requiring similar qualifications) during a specific period.
Apprenticeship
A system of indenture or other agreement, written or implied, to train a person in a recognized trade or craft in accordance with specified standards.
Asian-Pacific Islander
A person with origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippine Republic and Samoa; and, on the Indian Subcontinent, includes India, Pakistan, Bangladesh, Sri Lanka, Nepal, Sikkim and Bhutan.
Availability
The availability of minorities or women for a job group means the percentage that minorities or women are among persons in the relevant labor area and/or internal feeder pools having the requisite qualifications to perform the positions included in the job group. The term is broad enough to include any factor that is in fact relevant to determining the availability of individuals for the jobs in the job group. Avail-ability figures are used in determining whether to find underutilization, and, where a goal is established, in determining the level of the goal.
In determining availability for a job group, a contractor must consider at least each of the factors specified in 41 CFR 2.11(b). However, a contractor need not actually use each of these factors in reaching its availability estimate. Only the factors that are relevant to the particular job group should be used. For example, availability for jobs in a job group filled by promotion from within, or requiring specialized skills, would not be based on general area population, workforce, or unemployment factors. In addition to the factors specified in 41 CFR 2.11(b), a contractor may consider any other relevant factor in determining availability. See Manual Section 2G05.
Back Pay
Compensation for past wage and benefit losses caused by a contractor's discriminatory employment practices or procedures. Lost wages include, e.g., overtime, incentive pay, raises, bonuses economic loss includes compensatory damages. See also "fringe benefits."
Bargaining Agreement
Also referred to as collective bargaining agreement and sometimes known as labor-management agreement or union contract. These terms refer to an agreement between an employer and a union establishing wages, hours, and other terms and conditions of employment for employees in the bargaining unit represented by the union.
Black
An individual, not of Hispanic origin, with origins in any of the Black racial groups of Africa.
Bona-Fide Occupational Qualification (BFOQ)
A defense allowing an employer to limit a particular job to members of one sex, religion, or national origin group. The courts have held that the statutory BFOQ provision in Title VII is a very narrow exception to the general prohibition against discrimination on the basis of those characteristics. In enforcing the Executive Order, OFCCP follows Title VII principles regarding the BFOQ exception. An employer claiming that sex is a BFOQ for a job must show that all or substantially all members of the excluded sex are incapable of performing the duties of the job and that failure to allow the exclusion would undermine the "essence" (i.e., the central purpose or mission) of the employer's business. Race cannot ever be a BFOQ for any job.
Bona-Fide Seniority System
A seniority system that was not created and is not maintained for the purpose of discriminating on the basis of a prohibited factor.
Bumping Rights
Rights of an employee to displace another employee due to a layoff or other employment action as defined in a collective bargaining agreement or other binding agreement.
Business Necessity
An defense available when the employer has a criterion for selection that is facially neutral but which excludes members of one sex, race, national origin or religious group at a substantially higher rate than
members of other groups (thus creating adverse impact). The employer must prove that its requirement having the adverse impact is job-related and consistent with business necessity. See Manual Section 7E08.
Civilian Labor Force
The aggregate of the persons classified as employed and as unemployed in accordance with the criteria estab-lished by the Bureau of the Census and the U.S. Department of Commerce. See "Employed" and "Unemployed."
Cohort Analysis
A comparison of the treatment of similarly situated individuals or groups.
Collateral Estoppel
A bar to relitigating an issue that has already been litigated between the same parties or certain closely related persons (sometimes known as privies). Under collateral estoppel, when an issue has been contested and finally resolved in litigation involving the parties, that resolution of the issue is binding on future litigation involving the two parties (or their privies).
Collective Bargaining Agreement
See "Bargaining Agreement."
Comparative Evidence
Nonstatistical evidence that compares the contractor's treatment of individuals of one group (e.g., race) with its treatment of similarly situated individuals of other groups. Also see "Statistical Evidence" and "Anecdotal Evidence."
Complaint
A written charge filed with OFCCP by an employee, former employee, applicant for employment or by a third party alleging specific violations of the Executive Order, Section 503 or 38 U.S.C. §4212.
Compliance
Meeting the requirements and obligations imposed by Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, 38 U.S.C. §4212, and their implementing regulations.
Conciliation
Discussions between OFCCP and a contractor to resolve findings of noncompliance.
Conciliation Agreement (CA)
A binding written agreement between a contractor and OFCCP that details specific contractor commitments to resolve the alleged violations set forth in the agree-ment.
Construction Contract
Any contract for the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings or highways, or other changes or improve- ments to real property, including facilities providing utility services.
Construction Site
The general physical location of any building, highway or real property undergoing construction, rehabilita- tion, alteration, conversion, extension, demolition, repair, or any other change or improvement, and any temporary location or facility at which a contractor or other participating party meets a demand or performs a function relating to the contract or subcontract. See "Site of Construction," 41 CFR 60-1.3.
Construction Work
The construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings or highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other onsite functions incidental to the actual construction. See 41 CFR 60-1.3.
Constructive Discharge
An employee's involuntary resignation resulting from the employer making working conditions for the employee so intolerable that a reasonable person would have felt
compelled to resign. OFCCP will assert that an employee was constructively discharged in violation of the Executive Order, Section 503, or 38 U.S.C. §4212 where it finds that (1) a reasonable person in the employee's position would have found the working conditions intolerable; (2) the employer's conduct which constituted the violation against the employee created the intolerable working conditions; and (3) the employee's involuntary resignation resulted from the intolerable working conditions.
Continuing Violation
The continuing violation theory has been analyzed as encompassing three separate sub-theories, each applicable to distinct fact situations: (1) a series of individual related discriminatory acts, at least one of which must have occurred within 2 years prior to the notice of a compliance review, or 180 days before the filing of a complaint of employment discrimination; (2) systemic discrimination where the employer has maintained a policy or practice which discriminates against a class of individuals; and, (3) present effects of past discrimination--where an individual or a class is suffering the residual effects of discriminatory conduct which occurred prior to the limitation period but was not the subject of a timely charge. (In recent years, OFCCP has not applied the present effects of past discrimination theory.)
Contract
Any "Government Contract" or, for the Executive Order, any "Federally Assisted Construction Contract."
Contract Cancellation
The termination of a Federal contract before its expiration date. Contract cancellation is one of the sanctions authorized, in appropriate cases, for violations of the Executive Order, Section 503, or 38 U.S.C. §4212. Compare "Debarment;" "Contract Suspension."
Contract Suspension
The temporary interruption of a Federal contract by order of the appropriate authorities. Contract suspension is one of the sanctions authorized, in appropriate cases, for violation of the Executive Order, Section 503 or 38 U.S.C. §4212. Compare "Contract Cancellation;" "Debarment."
Contracting Agency
For purposes of the Executive Order, Section 503 and 38 U.S.C. §4212, a contracting agency is any department, agency, establishment or instrumentality of the United States (under the Executive Order, limited to the executive branch of the Government), including any wholly owned Government corporation, which enters into contracts. See 41 CFR 60-1.3, 60-250.2, and 60-741.2.
Contractor
A contractor as described below, is:
- Prime contractor. Any person holding, and for enforcement purposes any person who has held, a contract subject to the Executive Order, Section 503 or 38 U.S.C. §4212.
- Subcontractor. Any person holding, and for enforcement purposes any person who has held, a subcontract subject to the Executive Order, Section 503 or 38 U.S.C. §4212. See definition of "Subcontract."
- First-tier subcontractor. A subcontractor holding a subcontract with a prime contractor.
Covered Area
The geographical area, Economic Area (EA) or Standard Metropolitan Statistical Area (SMSA), designated in the Federal Register by the Secretary of Labor where a Federal or federally assisted construction project is being performed. See 45 FR 65976, 65984, Appendix
B-80, October 3, 1980.
Criteria Identification/Criteria Verification
The process of obtaining the contractor's stated criteria for a selection decision(s) (usually through interviewing selecting officials and examining any relevant contractor documents), and then determining whether the stated criteria explain the actual selec-tion decisions (usually through reviewing applications/ files of persons selected and not selected).
Debarment
An order declaring a contractor ineligible for the award of future contracts. Debarment is one of the sanctions that may be imposed upon a contractor who is
found to be in violation of the Executive Order, Section 503, or 38 U.S.C. §4212.
Deficiency
Failure to fulfill a requirement of the Executive Order, Section 503 or 38 U.S.C. §4212, including implementing rules, regulations and orders. See "Violation." (The terms deficiency and violation often are used interchangeably.)
Deposition
A type of pre-trial discovery. (See "Discovery.") An oral deposition is the examination, under oath, by the lawyer for one party of a person (such as a potential witness for the other party) who is believed to have knowledge of facts or circumstances relevant to the matter in litigation. A transcript of the examination is made and can be used at trial for some purposes.
Dictionary of Occupational Titles
A publication of the Employment and Training Admini- stration, U.S. Department of Labor, that classifies more than 12,000 occupations based on their duties and commonly required qualifications.
Director
The Director of the Office of Federal Contract Compliance Programs of the United States Department of Labor.
Direct Evidence of Discrimination
A method of proof in which evidence on its face establishes a discriminatory reason for an employment decision, without inference or presumption. Direct evidence is evidence that on its face shows an intent to discriminate. It may be based upon testimony or any reliable documentation such as a copy of a help wanted ad that specifies "males only."
Disabled Veteran
See "Special Disabled Veteran."
Discovery
In trial practice, the pre-trial devices that can be used by a party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial. Tools of discovery
include: depositions upon oral and written questions, written interrogatories, requests for production of documents or things, requests for physical and mental examinations, and requests for admission. See "Deposition."
Discrimination
See "Disparate Impact," "Disparate Treatment," and Chapter 7.
Disparate Impact
A theory or category of employment discrimination. Disparate impact discrimination may be found when a contractor's use of a facially neutral selection standard (e.g., a test, an interview, a degree require-ment) disqualifies members of a particular race or gender group at a significantly higher rate than others and is not justified by business necessity or job re-latedness. An intent to discriminate is not necessary to this type of employment discrimination. The dis-parate impact theory may be used to analyze both objective and subjective selection standards. Same concept as adverse impact. See definition of adverse impact.
Disparate Treatment
A theory or category of employment discrimination. Disparate treatment discrimination may be found when a contractor treats an individual or group differently because of its race, color, religion, sex, national origin, handicap or veteran status. An intent to discriminate is a necessary element in this type of employment discrimination, and may be shown by direct evidence or inferentially by statistical, anecdotal and/or comparative evidence.
Dun's Number
An identification number assigned to a business by Dun & Bradstreet (D&B).
EEO-1 Report
The Equal Employment Opportunity Employer Information Report (EEO-1): An annual report filed with the Joint Reporting Committee (composed of OFCCP and EEOC) by certain employers subject to the Executive Order or to Title VII of the Civil Rights Act of 1964, as amended. This report details the sex and race/ethnic composition of an employer's work force by job category. (Also termed Standard Form 100.)
EEO-2 Report
The Equal Employment Opportunity Apprenticeship Information Report: A chronological list of names of all persons who have applied to an apprenticeship program. The information needed to fill out the report must be kept by the apprenticeship sponsor; however, the EEOC no longer requires the filing of EEO-2 reports.
EEO-3 Report
The Equal Employment Opportunity Labor Union Report (EEO-3): A report filed biennially in even-numbered years by labor unions. This report is filed with the EEOC Survey Branch and contains information on the sex and race/ethnic composition of union membership and referrals for employment.
EEO-4 Report
The Equal Employment Information Report (EEO-4): A report filed by State and local governments with the State and Local Reporting Committee (composed of EEOC, Health and Human Services [HHS], Department of Energy [DOE], Housing and Urban Development [HUD], Department of Transportation [DOT], Office of Personnel Management [OPM], and OFCCP). This report sets forth the sex and race/ethnic composition of the work force by job category and annual salary. Frequency of reporting for political jurisdictions varies with their number of full-time employees, as follows: 100 or more, annually; 50 to 99, every other year; 25 to 49, every 4 years; 15 to 24, every 6 years.
EEO-5 Report
The Equal Employment Opportunity Elementary-Secondary Staff Information Report (EEO-5): A report filed with the School Reporting Committee (composed of EEOC, the Department of Education/Office of Civil Rights and the National Center for Education Statistics). This report details the sex and race/ethnic composition, by job category, of elementary and secondary school staffs. Frequency of reporting for school districts varies with their number of pupils, as follows: 1800 or more, every other year; 900-1799, every 4 years; 450-899, every 6 years; 250-449, every 8 years.
EEO-6 Report
The Equal Employment Opportunity Higher Education Staff Information Report (EEO-6): A report filed biennially in odd-numbered years with the Higher Education Report-
ing Committee (composed of OFCCP, Department of Educa-tion/Office of Civil Rights and EEOC) by colleges and universities. It details by job category and salary the sex and race/ethnic composition of their faculty and staffs.
Employed
Under criteria established by the Bureau of the Census and the U.S. Department of Commerce, all civilians 16 years old and over who were either:
(a) "at work," meaning those who did any work at all during the reference week as paid employees or in their business or profession, or on their farm, or who worked 15 hours or more as unpaid workers on a family farm or in a family business; or
(b) "with a job but not at work," meaning those who did not work during the reference week but had jobs or businesses from which they were temporarily absent due to illness, bad weather, industrial dispute, vacation, or other personal reasons.
Generally excluded from the category of employed are persons whose only activity consisted of unpaid work around the house or volunteer work for religious, charitable, and similar organizations, or persons on layoff.
Employee
A person employed by a Federal contractor, subcontractor or Federally assisted construction contractor or subcontractor.
Employment Agency
Any entity regularly undertaking with or without compensation to procure permanent employees for an employer or to procure for individuals opportunities to permanently work for an employer. Also includes an agent of such a person or entity.
Employment Offer
An employer's offer of employment to an individual, usually for a specific job.
Employer Identification Number (EIN)
A nine digit number assigned to a company by the Internal Revenue Service for tax and other identification purposes.
Enforcement
Administrative or judicial action to compel compliance with Executive Order 11246, Section 503 or 38 U.S.C. §4212 and their implementing regulations.
Equal Opportunity Clause
The subparagraphs contained in 41 CFR 60-1.4(a) or (b) required by Sections 202 and 301 of Executive Order 11246, as amended, to be part of contracts covered by the Executive Order. Pursuant to 41 CFR 60-1.4(e) and 60-4.9, the clause is a part of covered contracts regardless of whether it is physically incorporated into the contract or whether the contract between the agency and the contractor is written. See also definition of "Affirmative Action Clause."
Establishment
A facility or unit which produces goods or services, such as a factory, office, store, or mine. In most in- stances, the unit is a physically separate facility at a single location. In appropriate circumstances, OFCCP may consider as an establishment several facilities located at two or more sites when the facilities are in the same labor market or recruiting area. The determination as to whether it is appropriate to group facilities as a single establishment will be made by OFCCP on a case-by-case basis.
Executive Order
For purposes of this manual, Parts II, III, and IV of Executive Order 11246, September 24, 1965 (30 FR 12319), as amended. The short form references of "Order" or "E.O. 11246" sometimes are used.
Exempt Contract
Any Government contract or subcontract which is excluded from coverage under some or all provisions of 41 CFR Chapter 60 according to the standards set forth in 41 CFR 60-1.5. (See also 60-250.3, and 60-741.3 which use the term "waiver" instead of exempt.)
Expert Witness
A person such as a doctor or statistician selected by the court or a party on account of his/her knowledge or skill, to examine, estimate, and ascertain things and make a report (testimony) of his/her findings and opinions.
Facially Neutral Selection Standard/Criteria
A criterion/process is facially neutral if it does not make any reference to a prohibited factor and is equally applicable to everyone regardless of race, gender or ethnicity; i.e., is not discriminatory on its face. See also "uniformly applied."
Federally Assisted Construction Contract
Any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work. See 41 CFR 60-1.3.
Federally Involved Construction Contract
Any Federal construction contract or subcontract, Federally assisted construction contract or subcon-tract, or any other construction contract or subcontract that is necessary, in whole or in part, to
the performance of a Federal supply and service contract or subcontract.
Fifteen (15) Day Notice
See "Notice of Alleged Noncompliance."
First-tier Subcontractor
A subcontractor holding a subcontract with a prime contractor.
Focus Job Area
A unit of an establishment's work force (such as a seniority unit, department, line of progression, or job title, as appropriate) identified at desk audit as a potential problem area for further investigation onsite. Example: a unit where minorities or women are concentrated, underrepresented, or restricted from working because of their race or sex.
Formal Training
A structured program to develop an individual's job related skills and abilities. Typically classroom training as well as on-the-job training fall into this category.
Fringe Benefits
Compensation for employment other than wages or salary, including, for example, annual and sick leave, medical insurance, life insurance, retirement benefits, profit sharing, bonus plans, etc.
Front Pay
Compensation for estimated future economic loss; generally calculated based on the difference between the discrimination victim's current pay (or for a rejected applicant, the pay he/she should have received) and the pay associated with his/her rightful place. Front pay runs from the time of the settlement (e.g., Conciliation Agreement), hearing, or admini-strative or court order to a certain time in the future set by the settlement, hearing or administrative or court order (usually when the victim attains his/her rightful place) set by the settlement, hearing or court order. See also "Rightful Place."
Goals
Goals under the Executive Order are of two kinds: percentage placement goals and goals by organizational unit. See Manual Sections 2G07 and 2G12.
Goals for Construction Contractors
In the construction industry, benchmark employment levels for minorities and women expressed as a percentage of the hours worked by the contractor's aggregate work force by trade in a geographic area.
a. Goals for women: See 43 FR 14899, 14900, Appendix A, April 7, 1978 and 45 FR 85750, 85751, December 30, 1980.
b. Goals for minorities: See 45 FR 65979, 65984, Appendix B-80, October 3, 1980.
Good Cause
A. A legally acceptable defense (usually put forward by a contractor against whom OFCCP has alleged a violation of its regulations) for not having taken an action that would otherwise be required.
B. Justification provided by a complainant, and found acceptable by OFCCP, as the basis for accepting an otherwise untimely complaint filing. See 41 CFR 60-1.21, 250.26 and 741.26.
Good Faith Efforts
This term refers to a contractor's efforts to make all aspects of its affirmative action plan work. Designing and implementing an effective affirmative action plan requires sustained attention. The contractor must analyze its employment and recruitment practices as they affect equal opportunity, identify problem areas, design and implement measures to address the problems, and monitor the effectiveness of its program, making adjustments as circumstances warrant. In evaluating the contractor's good faith efforts, the EOS must make a careful assessment of the quality and thoroughness of the contractor's work to implement its program and assure equal opportunity. The basic components of good faith efforts are (1) outreach and recruitment measures to broaden candidate pools from which selection decisions are made to include minorities and women and (2) systematic efforts to assure that selections thereafter are made without regard to race, sex, or other prohibited factors.
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Government
Except where otherwise indicated, government means the government of the United States of America.
Government Contract
Any agreement or modification thereof between any contracting agency and any person for the furnishing of supplies or services, or for the use of real or per-sonal property, including lease arrangements. The term "services," as used here, includes, but is not limited to, the following: utility, construction, transporta-tion, research, insurance, and fund depository, regard-less of whether the Government is the purchaser or seller. The term "Government Contract" does not include (a) agreements in which the parties stand in the relationship of employer and employee and (b) Federally assisted construction contracts. See 41 CFR 60-1.3, 250.2 and 741.2.
Handicapped Individual
A term used in the Rehabilitation Act of 1973 but replaced by "Individual with Handicaps" in 1986 amendments to that Act. See "Individual with Handicaps."
Hispanic
A person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race. This does not include persons of Portuguese descent or persons from Central or South America who are not of Spanish origin or culture.
Hometown Plan Areas
Geographical areas designated by the Secretary of Labor where there was a "Hometown Plan." A Hometown Plan was a cooperative effort, initiated at the local level, among construction contrators, construction unions and the minority community to increase the representation of minorities in the construction trades. Once approved by OFCCP, such plans were published and enforced as bid conditions for the area. See 43 FR 19473, Appendix B, May 5, 1978.
Immediate Labor Area
The geographic area from which employees reasonably may commute to the contractor's establishment. It may include one or more contiguous cities, counties, Metropolitan Statistical Area (MSAs) or parts thereof.
Impact Ratio Analysis
The Impact Ratio Analysis (IRA) is a comparison of the selection rates of different groups from an identified candidate pool. If the selection rate for one group is less than 80% of that for another, the IRA is considered adverse.
Individual with a Disability
See "Individual with Handicaps"
Individual with Handicaps
Any person who:
(a) has a physical or mental impairment which substantially limits one or more of such person's major life activities;
(b) has a record of such an impairment; or
(c) is regarded as having such an impairment.
This definition does not include an individual currently engaging in the illegal use of drugs, when the contractor acts on the basis of such use. This definition does not include an individual who is an alcoholic whose current abuse of alcohol prevents such individual from performing the duties of the job in question, or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or safety of others.
The term "individual with handicaps" is used interchangeably with "individual with a disability" and "handicapped individual."
Injunctive Relief
A court order requiring a person to perform, or to refrain from performing, a designated act. For example, in an enforcement action OFCCP might seek the injunctive relief of requiring that the contractor cease asking discriminatory questions on its job application.
Internal Review Procedure
An internal procedure of contractors capable of resolving discrimination complaints. By regulation OFCCP allows contractors 60 days to attempt to resolve internally a complaint of employment discrimination made by an employee who is an individual with handicaps, a special disabled veteran or a veteran of the Vietnam era.
Invitation to Self Identify
An invitation by the contractor, extended to employees and applicants for employment, to identify themselves as individuals with handicaps or special disabled or Vietnam era veterans for purposes of Section 503 or 38 U.S.C. §4212 in order to permit the contractor to make reasonable accommodation and take affirmative action on their behalf. All information obtained in response to such an invitation shall be kept confidential in accordance with 41 CFR 60-741.5(c)(1) or 60-250.5(d).
Job Area
Any subunit of a workforce sector, such as department, job group, job title, etc.
Job Area Acceptance Range (JAAR)
The JAAR is an analytical tool used to analyze the distribution of employees in a workforce by comparing the actual percentage of minorities/women in a job area to their percentage in the relevant larger segment of the contractor's workforce.
Job Categories
The nine designated categories of the EEO-1 report: officials and managers, professionals, technicians, sales workers, office and clerical, craft workers (skilled), operatives (semi-skilled), laborers (unskilled), and service workers.
Job Description
A written statement detailing the duties of a particular job title.
Job Group
One or a group of jobs having similar content, wage rates and opportunities. See 41 CFR 60-2.11(b).
Job Specification
The minimum qualification(s) the contractor identifies as necessary to perform a job.
Journey Worker
One who has completed an apprenticeship or otherwise possesses the full skills and licenses of workers in his/her trade.
Labor Area
Geographic area used in calculating availability. The area may vary from local to nationwide. (See Chapter 2.) Compare with "Immediate Labor Area."
Layoff
The process by which workers are removed from the active payroll to the inactive payroll during a reduction-in-force (RIF).
Life Activities (Major Life Activities)
For purposes of Section 503, this term means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Line of Progression
A series of related jobs in a promotional sequence generally starting with less difficult, lower paying jobs and progressing to more difficult, higher paying jobs. Often, the lower jobs provide required training for movement to the higher level jobs.
Linkage
Linkage is the connection between contractors and appropriate recruitment and/or training sources. When an underutilization of minorities or women in a job group is found and there are recruitment/training resources available that are able to refer qualified applicants to the contractor for consideration, the EOS will attempt in a Letter of Commitment or Conciliation Agreement to execute a linkage agreement with the contractor. (See Chapter 3, Section 3J.)
Major Life Activities
See "Life Activities."
Make Whole Relief
Remedies for discrimination that restore the victim of discrimination to his or her rightful place, i.e., the position, both economically and in terms of employment status that he/she would have occupied had the discrimination never taken place. Common elements of make whole relief include an award of the position the individual was wrongfully denied, back pay with interest, and retroactive seniority.
Mandatory Job Listing (MJL)
The provision of the affirmative action clause at 41 CFR 250.4 that requires covered employers to list suit-able job openings with the local office of the State Employment Service.
Maternity Leave
Childbirth-related absence from work by a woman that does not directly depend on her medical condition. The term includes leave for nondisability-related care and nurturing following the birth of a child. Distinguish from "pregnancy disability leave," but see Manual Section 3G01(h)(2).
Minorities
Men and women of those minority groups for whom EEO-1 reporting is required; i.e., Black, Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native. As used in this Manual, the term may mean these groups in the aggregate or an individual group. See EEO-1 for further explanation.
New Hire
A worker added to an establishment's payroll for the first time. Compare with "Rehire."
Noncompliance
A contractor's failure to adhere to the conditions set out in the contract's equal opportunity and/or affirmative action clauses and/or the regulations implementing those clauses (41 CFR Chapter 60) and/or failure to correct violations.
Normal Business Hours
For purposes of access to a contractor's premises, the hours during which employees to be interviewed are at
work, regardless of the time of day or night. Also used to indicate the regular business hours during which Section 503 and 38 U.S.C. §4212 AAPs are available for inspection by employees and applicants for employment.
Notice of Alleged Noncompliance (15 Day Notice)
A letter from OFCCP to a contractor informing it that the agency believes the contractor has violated the terms of a Conciliation Agreement and that enforcement proceedings may be initiated unless the contractor demonstrates within 15 working days from its receipt of the letter that it has not violated its commitments under the Agreement.
Notice of Violation (NOV)
A letter from OFCCP notifying the contractor that the agency has found violations of the Executive Order, Section 503 and/or 38 U.S.C. §4212 during a compliance review, and the remedies that are required to resolve those violations.
Objective Criteria/Procedures
A criterion is objective if it is fixed and measurable. The central characteristic of an objective criterion is that it can be independently verified; i.e., different people measuring objective criteria will reach the same results. Compare with "Subjective Criteria/ Procedures."
On-the-Job Training (OJT)
An employer sanctioned training program, usually at the employer's worksite, conducted either under close supervision or with assistance, and designed to teach and qualify an individual to perform a job or element(s) of a job.
Order
Generally, a short-hand term meaning Executive Order 11246, as amended. The term also is used in phrases dealing with decisions in litigation matters, such as, Final Decision and Order or Court Order.
Organizational Unit
A department, division, branch, section or other organ-izational entity of a contractor that operates as a single unit under a common head.
Pacific Islander
See "Asian/Pacific Islander."
Parental Leave
Absence from work by a parent to care for a child.
Pattern or Practice Discrimination
Employer actions constituting a pattern of conduct resulting in discriminatory treatment toward the members of a class. Pattern or practice discrimination generally is demonstrated in large measure through statistical evidence, and can be proven under either the disparate treatment or disparate impact model.
Person
As defined in OFCCP's regulations, "person" means any natural person, corporation, partnership, unincorporated association, State or local government, and any agency, instrumentality or subdivision of such a government. See 41 CFR 60-1.3.
Physical & Mental Job Qualification Requirements
Physical and mental standards that an employer requires a person performing or applying for a job to meet.
Placement
In this Manual, placement is often used in the context of the selection or assignment of individuals in a particular job.
Pre-employment Medical Examination
An evaluation of the health status of an applicant for employment.
Predetermination Notice
A letter in which OFCCP notifies the contractor of its preliminary finding that the contractor has engaged in a pattern or practice of discrimination. The Notice states the basis for the preliminary findings and offers the contractor the opportunity to respond.
Pregnancy-Disability Leave
Pregnancy and childbirth-related absence from work by a woman affected by pregnancy, childbirth or related medical conditions. It includes leave prior to childbirth when medically indicated and leave to recover from pregnancy, childbirth or related medical conditions following the birth of a child.
Prima Facie Case
A legal term that refers to a case sufficient on its face to prevail in the absence of contradictory evidence.
Problem Areas
Aspects of the contractor's employment decisions, policies, or practices that appear to raise questions regarding the contractor's compliance with the Executive Order, Section 503 or 38 U.S.C. §4212.
Progression Line Charts
Written listings of a contractor's line of progression. See "Line of Progression."
Prohibited Factor
A factor prohibited by law from being used in making employment decisions. Under Executive Order 11246, as amended, the prohibited factors are race, color, religion, sex and national origin. Under Section 503, the prohibited factor is handicap; under 38 U.S.C. §4212, it is status as a special disabled or Vietnam era veteran.
Promotable Minorities and Women
Minorities and women who are qualified and eligible for promotion based upon valid selection criteria.
Promotable or Transferable
In the context of developing data for availability, those employees who are currently employed in a job group or groups that serve or could serve as a source from which selections are or could be made for other job groups.
Promotion
Any personnel action resulting in movement to a position affording higher pay and/or greater rank, and/or requiring greater skill or responsibility, or the opportunity to attain such.
Proof of Discrimination
"Proofs" of discrimination are the factual formulations which show that discrimination under a particular theory exists. These formulations describe the kinds of facts needed to show a nexus between a particular adverse action or result and a particular prohibited factor. Proof requires evidence; see "Anecdotal Evidence," "Comparative Evidence," and "Statistical Evidence."
Qualified Special Disabled Veteran
A special disabled veteran (see below) who is capable of performing a particular job with or without a reasonable accommodation to his or her disability.
Qualified Individual with a Handicap(s)
An individual with handicaps (see above) who is capable of performing a particular job, with or without reason-able accommodation to his or her handicap.
Reasonable Accommodation (Section 503)
(a) Any modification or adjustment to a job application process that enables a qualified individual with handicaps to be considered for the position such qualified individual desires, and which will not impose an undue hardship on the contractor's business (see, "Undue Hardship" below); or
(b) Any modification or adjustment to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enables a qualified individual with handicaps to perform the essential functions of the position, and which will not impose an undue hardship on the operation of the contractor's business; or
(c) Any modification that enables a contractor's employee with handicaps to enjoy equal benefits and privileges of employment as are enjoyed by its other
similary situated employees without handicaps, and which will not impose an undue hardship on the operation of the contractor's business.
Reasonable accommodation may include but is not limited to: (1) Making existing facilities used by employees readily accessible to and usable by individuals with handicaps; (2) Job restructuring; part-time or modified work schedules; (3) Reassignment to a vacant position; (4) Acquisition or modifications of equipment or devices; (5) Appropriate adjustment or modifications of examinations, training materials, or policies; (8) the provision of qualified readers or interpreters; and, (7) other similar accommodations for individuals with handicaps.
To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified individual with a handicap in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Compare with "Religious Accommodation."
Reasonable Recruitment Area
The area from which the contractor usually seeks or reasonably could seek workers for a particular job group. (See Section 2G04(c).)
Recall
The process or action by which workers are returned to active employment from layoff.
Recruiting Source
Any person, organization or agency used to refer or provide workers for employment.
Rehire
To reengage a formerly employed worker after a complete break in employment status. Compare with "Recall."
Relevant Labor Market Area
Geographic area used in determining availability (Refer to Chapter 2 of this Manual).
Religious Accommodation
Requirement of a contractor to accommodate sincere religious observances and practices of an employee or prospective employee unless the contractor can demonstrate that it is unable to do so without undue hardship on the conduct of its business. See 41 CFR 60-50.3. Anything requiring more than a de minimis cost has been held by the Supreme Court to constitute "undue hardship" in this context.
Requisite Skills
Those basic skills needed to perform a job satisfactorily.
Right of Response
The contractor's right to produce a legitimate, nondiscriminatory reason for its actions once OFCCP has made a prima facie showing of discrimination.
Rightful Place
The job, seniority level (if applicable), salary level, etc. that a discriminatee would now hold had there been no discrimination.
Section 503
Section 503 of the Rehabilitation Act of 1973 (29 U.S.C. 793), as amended.
Seniority
Length of employment as defined by the employer or applicable collective bargaining agreement. (Seniority may be both competitive and non-competitive, and may be defined in terms of company seniority, facility seniority, departmental seniority, etc.) Employees may have different seniority for different purposes (e.g., job bidding rights governed by department seniority and leave accural governed by company seniority).
Show Cause Notice
A letter from OFCCP to the contractor ordering it to show cause why enforcement proceedings should not be instituted. A show cause notice follows OFCCP's issuance of a notice of violation and failure of conciliation. The show cause notice provides that the contractor must come into compliance within 30 days or
OFCCP will recommend the institution of enforcement proceedings.
Skill Inventory
A list of persons, categorized by their skills, kept by a contractor to encourage maximum use of the skills of applicants or employees.
Special Disabled Veteran
A veteran who: (a) is entitled to compensation (or who, but for the receipt of military retirement pay, would be entitled to compensation) under laws admini-stered by the Department of Veterans Affairs for a disability that is (i) rated at 30 percent or more, or (ii) rated at 10 or 20 percent in the case of a veteran who has been determined under Section 1506 of the Veterans' Rehabilitation and Education Act Amendments of 1980 to have a serious employment handicap; or
(b) was discharged or released from active duty because of a service-connected disability. See 38 U.S.C. §4211.
Standard Deviation
A statistical measure used to describe the probability that differences between similarly situated groups (such as in selection rates, wages, etc.) occurred by chance.
Standard Form 100
See "EEO-1 Report."
Standard Industrial Classification (SIC) Code
A numerical coding system developed under the sponsorship of the Office of Management and Budget that classifies establishments by principal activity or service.
Statistical Evidence
Evidence that explains or analyzes the meaning of numerical differences in selection rates, wages, or other employment decisions between members of one group and others who were similarly situated. Statistical evidence also may be used to show which factors did or did not affect selection decisions, wages, or other employment decisions. Also see "Anecdotal Evidence" and "Comparative Evidence."
Subcontract
Any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):
(a) for the furnishing of supplies or services or for the use of real or personal property, including lease arrangements, which, in whole or in part, is necessary to the performance of any one or more Government contracts; or
(b) under which any portion of the contractor's obligation under one or more Government contracts is performed, undertaken or assumed. See 41 CFR 60-1.3.
Subcontractor
Any person holding a subcontract, or for enforcement purposes any person who has held a subcontract, subject to the Executive Order, Section 503 or 38 U.S.C. 4212. See definition of "Subcontract."
Subjective Criteria/Procedures
Employment qualifications, selection standards or processes that require judgment in their application, such that different persons applying such criteria/procedures would not necessarily reach the same conclusion. A criterion is subjective if it is not fixed or measurable. Compare "Objective Criteria/Processes."
Substantially Limits
In the application of Section 503, this means to affect significantly an individual's ability to perform a major life activity, or to restrict significantly an individual as to the condition, manner, or duration under which such individual can perform a particular major life activity. The following factors should be considered in determining whether an individual is substantially limited in a major life activity: (a) The nature and severity of the impairment; (b) The duration or expected duration of the impairment; and (c) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Support Data
Statistical data, documentation and other materials regarding employment practices, generally used in the development, support and/or justification of an affirmative action program.
Systemic Discrimination
Employment policies or practices that serve to differentiate or to perpetuate a differentiation in terms or conditions of employment of applicants or employees because of their status as members of a particular group. Such policies or practices may or may not be facially neutral, and intent to discriminate may or may not be involved. Systemic discrimination, sometimes called class discrimination or a pattern or practice of discrimination, concerns a recurring practice or continuing policy rather than an isolated act of discrimination.
Termination of Employment
Separation of an employee from the active and inactive payroll.
Terms and Conditions of Employment
This phrase includes all aspects of the employment relationships between an employee and his or her employer including, but not limited to, compensation, fringe benefits, leave policies, job placement, physical environment, work-related rules, work assignments, training and education, opportunities to serve on committees and decision-making bodies, opportunities for promotion, and maintenance of a nondiscriminatory working environment.
38 U.S.C. §4212
The affirmative action and nondiscrimination provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. In this Manual, sometimes shortened to "Section 4212." Prior to 1991, when it was redesignated, the law was referred to as "38 U.S.C. §2012.
Tolling
The suspension of the running of a statute of limitations for equitable reasons. Because the Title VII 180
day limit on filing a charge with the EEOC has been held to be a statute of limitations, there have been numerous court cases discussing tolling of that limit. By comparison, the regulations for OFCCP's three programs provide for the filing of a complaint within 180 days of the alleged violation unless the time for filing is extended by the Director for good cause shown. There is no similar good cause language in Title VII. The good cause authority allows the Director to waive the 180 day limit without raising questions of tolling.
Training Agency
Any person, organization or agency whose purpose is to train workers.
Transfer
Movement (usually lateral) from one position or function to another.
Underutilization
Having materially fewer minorities or women in a particular job group than reasonably would be expected based upon their availability. See Section 2G06.
Undue Hardship
In general, with respect to the provision of a reasonable accommodation, significant difficulty or expense incurred by a contractor. Whether an accommodation is reasonable requires a case-by-case determination. For Section 503, see Chapter 6, Appendix A, IV. For Executive Order 11246, see Manual Section 3H02.
Unemployed
Under the criteria established by the Bureau of the Census of the U.S. Department of Commerce, civilians 16 years old and over who:
(a) were neither "at work" nor "with a job" during the reference week (see "Employed");
(b) were looking for work during the last 4 weeks; and
(c) were available to accept a job.
Also included as unemployed are persons who did not work at all during the reference week and were waiting to be called back to a job from which they had been laid off.
Uniformly Applied
Applying employment criteria/processes in the same manner to members of a particular race, color, religion, sex or national origin group and others.
Union Shop
A factory, business, etc. operating under a contract between the employer and a labor union, that requires that all employees within the bargaining unit pay uniform periodic dues to the union, beginning within a specific period after hire.
Vestibule Training
Informal orientation provided by the contractor for the benefit of new employees.
Veteran of the Vietnam Era
A person who:
(a) served on active duty for more than 180 days, any part of which occurred between August 5, 1964 and May 7, 1975, and was discharged or released there-from with other than a dishonorable discharge; or
(b) was discharged or released from active duty for a service-connected disability if any part of such active duty was performed between August 5, 1964 and May 7, 1975.
Violation
Failure to fulfill a requirement of the Executive Order, Section 503 or 38 U.S.C. 4212, or their implementing rules, regulations and orders. See "Deficiency." (The terms violation and deficiency are often used interchangeably.)
White
An individual, not of Hispanic origin, with origins in any of the original peoples of Europe, North Africa or the Middle East.
Wrongful Discharge
Generally, unlawful employment termination. The phrase "wrongful discharge" is frequently used to refer to exceptions created by the courts in some states to the employment at will doctrine (see above). Courts in such states differ in the circumstances in which they will allow wrongful discharge suits challenging a termination. State law on this issue is not of direct concern to OFCCP. The Executive Order, Section 503, 38 U.S.C. §4212 and implementing regulations prohibit termination based on a prohibited factor.
1C GLOSSARY OF GENERAL ABBREVIATIONS
AA Affirmative Action
AAP Affirmative Action Program
ADA Americans with Disabilities Act
ALJ Administrative Law Judge
ADD Assistant District Director
AO Area Office, OFCCP
AOD Area Office Director, OFCCP; Now DD (District Director)
APA Administrative Procedure Act
ARA Assistant Regional Administrator, OFCCP; Now RD (Regional Director)
BFOQ Bona Fide Occupational Qualification
CA Conciliation Agreement
CAS Complaint Administration System
CEO Chief Executive Officer
CFR Code of Federal Regulations
CO Compliance Officer
COA Compliance Officer Assistant
CRIS Compliance Review Information System
D&B Dun & Bradstreet
DBE Disadvantaged Business Enterprise
DD District Director
DO District Office
DOJ Department of Justice
DOL Department of Labor
DORO Division of Regional Operations
EEO Equal Employment Opportunity
EEOC Equal Employment Opportunity Commission
EIN Employer Identification Number
EO Executive Order
EOA Equal Opportunity Assistant; Now, Compliance Officer Assistant
EOS Equal Opportunity Specialist; Now, Compliance Officer
ESA Employment Standards Administration
ETA Employment and Training Administration
FCCM Federal Contract Compliance Manual
FO Field Office, OFCCP; Now, Area Office
FOD Field Office Director, OFCCP; Now, Assistant District Director (ADD)
FOIA Freedom of Information Act
FR Federal Register
IRA Impact Ratio Analysis
IRCA Immigration Reform and Control Act of 1986
JAAR Job Area Acceptance Range
LOC Letter of Commitment
LOP Line of Progression
MBE Minority Business Enterprise
MJL Mandatory Job Listing
MSA Metropolitan Statistical Area
MSS Management Support Staff
NO National Office, OFCCP
NOV Notice of Violation
NSOL National Office, Solicitor of Labor
NRI Notification of Results of Investigation
OFCCP Office of Federal Contract Compliance Programs
RSOL Regional Solicitor of Labor
SCN Show Cause Notice
SCRR Standard Compliance Review Report (Supply and Service)
SCCRF Standard Construction Compliance Report Form
SEC. 503 Section 503 of the Rehabilitation Act of 1973 (29 U.S.C. §793), as amended
SES State Employment Service
SIC Standard Industrial Classification
SMSA Standard Metropolitan Statistical Area
SOL Solicitor of Labor
TERO Tribal Employment Rights Office
TRIS Time Reporting Information System
Title VI Title VI of the Civil Rights Act of 1964, as amended
Title VII Title VII of the Civil Rights Act of 1964, as amended
USES United States Employment Service
U.S.C. United States Code
V/H Veterans/Handicapped
VES Veterans Employment Service
VETS Veterans' Employment and Training Service (DOL)
WBE Women's Business Enterprise
WEAL Women's Equity Action League
1D STANDARD FORMS LIST
NUMBER TITLE/EXPLANATION
CC-4 Complaint Form
CC-41 Hometown Plan Administrative Committee Quarterly Report
CC-56 Time Sheet
CC-58 Complaint Report Sheet
CC-58a Financial Payments Sheet
CC-73 Quality Audit Form for Supply and Service Review
CC-74 Quality Audit Form for Construction Review
CC-75 Quality Audit Form for Complaint Investigation
CC-100 Compliance Review Report Sheet forwarded to the Regional Office to initiate the CRIS computer tracking system at the time the contractor is sent the "scheduling letter"
CC-100a Compliance Review Report Sheet generated by the CRIS and returned to the District/Area office after submission of the CC-100
CC-101 Regional Office Report Sheet used for the CRIS
CC-104 Report of Remedies Agreed to for Identifiable Persons
CC-257 Monthly Employment Utilization Report; document used by construction companies to report monthly hours worked by trade
SF-50 Notice of Personnel Action Form
SF-71 Request for Leave Form
SF-171 Federal Employment Application
APPENDIX
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