At WayUp, we proudly develop and support diversity efforts, while also helping our clients build, develop, and maintain their OFCCP/EEOC compliance programs. Compliance is complicated, so it’s no surprise that we get a ton of questions about what it means and what needs to be done, especially in the shifting technology landscape. It’s important to us, and to the millions of candidates on our platform, that companies we work with follow the best practices for sourcing. That said, though we work with some of the best employment lawyers around, we are not lawyers ourselves, and this article should not be construed as legal advice.
The OFCCP is the Office of Federal Contract Compliance Programs and the EEOC is the Equal Employment Opportunity Commission, and together these two agencies are responsible for regulating compliance with a host of critical US employment laws including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and federal regulations involving government contractors.
The EEOC regulates employment practices at all US companies with more than 15 employees (20 in the cases of age discrimination). The OFCCP is only responsible for regulating federal contractors and federal subcontractors, mostly those companies that do business over certain thresholds with the federal government. That said, many more businesses than you might expect fit these criteria. If your company sells into large enterprises of any kind, even if you’re not a direct federal contractor yourself, it’s likely that you fall under the OFCCP’s jurisdiction.
For all practical purposes, most enterprise employers we work with must comply with regulations from both agencies, and although some of smaller customers do not need to comply with OFCCP, it’s always a good idea to be aware of the regulations that may apply to your business in the future.
The “broad strokes” of all important US laws involving employment state that employers may not discriminate against candidates in employment on the basis of race, skin color, religion, sex, sexual orientation, gender identity, national origin, disability, citizenship status, or status as a protected veteran. These laws and regulations exist to ensure fairness for all individuals seeking employment in the United States.
At the same time, since every recruiting process is different, employers may run into specific rules that aren’t immediately apparent at first glance. Here are some of the key rules that we find are most often missed:
For both OFCCP and EEOC:
For just EEOC:
For just OFCCP:
That is the $100 million question. And that’s not a joke: that’s how much companies are now spending annually on diversity and inclusion (D&I), and it’s only expected to grow. We believe that D&I efforts and increasing diversity and fairness in hiring are both moral and ethical imperatives. That said, as companies invest in D&I, they do need to make sure they are on the right side of the law: in eagerness to promote diversity, we have often seen companies fall afoul of important regulations.
The OFCCP / EEOC rules differ based on whether a candidate has applied to a job yet.
Before a candidate has applied, employers may reach out to, market to, and recruit interested candidates using any criteria they see as important to boost diversity. For example, one of our clients has a severe underrepresentation of female employees of color in their STEM roles, and at their request we have worked with them to source these candidates for their open positions. Employers we work with will frequently hold or attend conferences for women in STEM, or people of color in finance, in order to attract underrepresented candidates for their positions.
After a candidate has applied, employers may not discriminate on the basis of any of these categories. WayUp makes it easy to hide ethnicity and gender information, including removing profile pictures, from job applications so that it’s even easier to avoid unconscious bias. Though this isn’t required, it has become a best practice for employers to hide, or even avoid tracking in the first place, demographic data in Applicant Tracking Systems (ATS’s).
They key distinction here: The second the candidate has applied, they go from someone you could reach out to on the basis of diversity, to someone whose ethnicity and gender you have to completely forget about as they go through your hiring process. This includes not just hiring decisions, but even prioritization. For example, you can’t choose to interview all women who applied to your job, and only interview all men afterwards.
Generally speaking, job applications should be open for anyone to apply to, even though employers may choose to market jobs to specific candidates.
If you are already passionate about your applicants not facing discrimination in your recruiting process, this will help substantially with having successful OFCCP audits! At the same time, here’s a helpful summary of what the law requires of employers, and what we recommend.
Things you should do: