What Must be Included in a Voluntary AAP?
Most organizations do not go through the rather frustrating exercise of preparing affirmative action plans (AAPs) unless they are required to do so. Accordingly, it may seem odd to some to entertain the notion of voluntary AAPs, though they are actually quite common.
The OFCCP’s regulations necessarily provide a framework for affirmative action programs that are legal to implement whether or not your organization is actually required by law to do so. Organizations fall in and out of “federal contractor” status all the time, often resulting in AAPs that are in place when they are not technically required. And subcontractors often face challenges knowing for certain whether or not their organizations are qualifying federal contractors required to prepare AAPs. There, the common wisdom is to prepare AAPs “just in case” so that the organization is not caught flat-footed in the event of an OFCCP audit.
As a result, it is in everyone’s interests if AAPs prepared according to the OFCCP’s regulations are legal to implement whether or not they are required by law.
But preparing AAPs is not an admission of “federal contractor” status. In other words, it does not concede jurisdiction to the OFCCP to audit you. Even if your organization prepares AAPs, you can still challenge the OFCCP’s jurisdiction and authority to review your plans for compliance, so that is not a bar to entry for voluntary AAPs. The question most often posed to BCGi is whether or not voluntary AAPs need to include all the elements of AAPs that are statutorily required.
Must Voluntary AAPs Contain All “Required” Elements?
That question answers itself—no, your “voluntary” AAPs have no “required” elements, so the content is pretty much up to you. But that should not be the end of the inquiry.
If your organization is preparing AAPs because you think the organization might be a qualifying federal contractor that is subject to the OFCCP’s AAP requirements, then it doesn’t make much sense to pick and choose the elements your voluntary AAPs will contain. Opting out of this or that element runs counter to the very reason for preparing those “just in case” AAPs to begin with. If any elements are missing when and if the OFCCP audits the organization, those elements will be turned into technical violations (assuming it turns out that the OFCCP has jurisdiction to audit you in the first place, of course).
But let’s assume for the sake of conversation that your organization is confident that it is not a qualifying federal contractor, and is therefore not required to prepare AAPs and is not subject to OFCCP scrutiny. Are there any elements that you should consider excluding from your voluntary AAPs?
Our Lawyers Don’t Want Us Running IRAs or Comp Analyses
Some practitioners might be cautious about sophisticated statistical analyses of things like compensation or hiring that could result in evidence that could be used against the organization in litigation. But it isn’t so clear that going half way and then stopping isn’t just as bad, or worse, from an “optics” perspective, which is no small thing when you consider the role that perception can play in decisions regarding whether and to what extent to pursue charges and complaints.
But this also highlights a common misperception. Many view the compliance function as running around generating document evidence of wrongdoing. While that might be true in an organization with rampant wrongdoing—in which case the organization is well advised to get on top of that sooner rather than later anyway—in most organizations what the compliance function actually ends up doing is running around creating mountains of document evidence of nondiscrimination. That is a very good thing.
Think of an AAP like a series of safety nets, or filters, or sieves. What are we trying to catch with those various nets (utilization analyses, hiring IRAs, etc.)? Discrimination. Is it possible that instances of discrimination can still exist without getting caught in a net? Sure, but the more nets you have in place, the less likely it is you’ll have a problem that is just floating merrily along undetected. So every time an organization looks for potential issues and doesn’t find them, or finds a potential issue and discovers it is benign, that has real value if/when a discrimination complaint is filed.
If there are issues, the AAP provides the potential to discover them and correct them early, possibly saving the organization tens to hundreds of thousands of dollars. If there are no issues, the AAP provides document evidence useful to defend against baseless allegations. Either way, it should be a win/win.
Our Lawyers Don’t Want Us Soliciting Sensitive Personal Data If We Don’t Have To
Fair enough. Most people are pretty comfortable with sex and race/ethnicity self-identification because it is so common and typically viewed as relatively innocuous. But when it comes to things like disability self-identification (including the “disabled veteran” status), some organizations get squeamish. Usually the objection is to soliciting disability self-identification information when not legally required to do so. And considering that the Americans with Disabilities Act (ADA) was largely passed to get employers to stop asking about disabilities, this reaction makes intuitive sense.
But lawyers familiar with the ADA can confirm for you that the ADA does not necessarily prevent employers from asking about disability. It prohibits employers from misusing that information, or asking about disabilities in a way that might cause people to, for instance, avoid applying for a job in the first place.
The ADA has always had two exceptions to the general prohibition on asking about disability status. One is if you are required to do so by law, so if your organization is required to prepare a disability AAP under the regulations implementing Section 503 of the Rehabilitation Act, you’re covered. But the other is when the organization will use that information to benefit individuals with disabilities, such as a voluntary affirmative action plan.
If you solicit disability self-identification, you will also have to store that data, and must do so in a way that guards confidentiality, but that should not be a heavy lift. Unlike federal contractors, however, if your AAP is truly voluntary you are not required to use the OFCCP’s horrible Form CC-305 for disability self-identification. You can, and should craft your own, better disability self-identification form. You will want your attorneys to review it for all the necessary notices and disclaimers under the ADA, and make sure you’re not misstating the law.
Stay In Bounds, Though
There isn’t nearly as much “action” in affirmative action as most people think. There is a lot of work behind the scenes—lots of reports and analyses and interpretation, etc.—but when it comes to “moving the needle” the AAP can be a painfully slow tool. But that is by design.
If you determine that, for instance, your engineering department appears to be under utilizing women then, yes, the fastest way to “correct” that would be to hire more women, maybe even fire a bunch of men while you’re at it. But that is exactly what Title VII of the Civil Rights Act prohibits (hiring and firing people based on protected characteristics like sex). Not only is that not how affirmative action is supposed to work, it is exactly what affirmative action is meant to prevent.
Whether or not your organization decides to include every element outlined in the OFCCP’s regulations in your voluntary AAP, be careful about going beyond what the OFCCP would require. As noted above, those regulations have been carefully crafted to provide a framework for legal affirmative action, whether or not your organization is a qualifying federal contractor. It’s not the reports and analyses themselves that will get you in trouble, it’s what you do with them. So make sure your legal team signs off on any “corrective” actions you contemplate.
Biddle AAP clients are invited to talk to their consultant about voluntary AAPs if that is an issue. Non-clients are invited to reach out to BCGi with questions.