[guest author: Alexa Morgan]
In the first part of this three-part blog series, we covered self-identification for EEO-1 reporting purposes. In addition to EEO-1 reporting obligations, Executive Order 11246, as amended, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended, and Section 503 of the Rehabilitation Act of 1973, as amended, require federal government contractors to solicit demographic information from their “applicants” (i.e., those who meet OFCCP’s definition of an “Internet Applicant” or a “Traditional Applicant” as discussed in more detail below) and new hires for Affirmative Action Plan and compliance purposes. Today, in Part Two of this series, we will cover self-identification requirements Executive Order 11246 and VEVRAA impose and best practices many HR departments choose to undertake.
Executive Order 11246
Pursuant to 41 CFR 60-1.12(a), federal contractors and subcontractors must retain records including, but not limited to, those “pertaining to hiring, assignment, promotion, demotion, transfer, lay off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship, and other records having to do with requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications, resumes, and any and all expressions of interest through the Internet or related electronic data technologies as to which the contractor considered the individual for a particular position ….” For all records that are retained, covered federal government contractors and subcontractors must be able to identify the race, gender, and ethnicity (Hispanic or non-Hispanic) of each employee and, where possible, each applicant. 41 CFR 60-1.12(c).
To obtain this information, contractors typically invite each person expressing interest for work to voluntarily report, pre-offer, their race, national origin, and gender where possible. See OFCCP’s General Affirmative Action FAQ’s, question #4. This can be done by creating a voluntary self-identification form that applicants complete either in paper or electronic format. OFCCP asserts that contractors must maintain this information separately from the application form and any other hiring records accessible to the hiring manager and keep it confidential. See OFCCP Internet Applicant Recordkeeping Rules FAQs #13. However, there is nothing in EO 11246 so stating nor has OFCCP published a Rule so requiring as to race, sex, and ethnic data (compare the different result discussed elsewhere as to Section 503 and VEVRAA which prohibit disclosure because the self-ID form can thus reveal hidden disabilities, but not so as to race, sex, and ethnicity which are immutable and often visible characteristics). Rather, OFCCP’s only support for its contention is the above-referenced FAQ, question #13 which lacks the binding force and effect of law, and is unenforceable. Nonetheless, as noted elsewhere, most employment defense lawyers recommend keeping race, sex, and ethnicity confidential as a matter of the contractor’s discretion so as to preserve the “lack of knowledge” defense in failure-to-hire cases involving selection pre-screening procedures which do not observe the race, sex, ethnicity of the person expressing interest for the job—like telephone interviews and on-line tests, for example.
If applicants decline to provide the requested self-identification information, contractors may use visual observation to identify demographic data when possible. See Question and Answer 88 to the Uniform Guidelines on Employee Selection Procedures: “UGESPs Qs & As.” Contractors may make a judgment, but should not guess or assume the gender, race, or ethnicity of an applicant or employee. OFCCP takes the position that contractors also may NOT use visual observation to override self-identification information provided by an applicant. See OFCCP’s General Affirmative Action FAQ’s, question #1. FAQs, however, do not have the binding force and effect of law and we know of no legally binding restriction to prevent contractors from correcting errors and/or fraudulent employee behavior.
While OFCCP does not mandate a specific time in the pre-offer selection process the contractor “must” request demographic data, OFCCP has supplied contractors informal and non-binding “Hints from Heloise” in the form of the following suggested Answers to Frequently Asked Questions (FAQs).
- Solicitation of demographic information “should” be made as early in the application process as possible. Contractors “should” not delay the solicitation so long (i.e. after assessing basic qualifications or at the interview stage) that it is no longer feasible to effectively solicit the information.
- Contractors are “required to” (i.e. “must”) solicit demographic information from all individuals who meet the definition of an Internet Applicant or what OFCCP informally describes as a “Traditional Applicant” (i.e. an Applicant who applies via a paper application).
- Once a contractor determines when to offer the invitation to provide demographic data, all Internet and traditional applicants “must” be given the same opportunity.
- Contractors “may” harmonize the solicitation of demographic data with the pre-offer invitation to self-identify as an individual with a disability and the invitation to self-identify as a protected veteran.
See Understanding OFCCP’s Internet Applicant and Traditional Applicant Recordkeeping Requirements FAQs.
OFCCP’s Internet Applicant Rule allows contractors to screen out individuals whom they believe do not qualify as an “Internet Applicant” prior to collecting demographic data regarding race, gender, and ethnicity. See Internet Applicant Recordkeeping Rule FAQs. An “Internet Applicant” is an individual who satisfies all four of the following regulatory criteria set out at 41 CFR section 60-1.3 (scroll down to the definition of “Internet Applicant”):
- The individual submitted an expression of interest in employment through the Internet or related electronic data technologies;
- The contractor considered the individual for employment in a particular position;
- The individual’s expression of interest indicated that the individual possesses the basic qualifications for the position; and
- The individual, at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position.
If the contactor simultaneously solicits both electronic applications and paper applications for a position, the Internet Applicant Rule requiring the collection of demographic data only for Internet Applicants applies to all applicants, regardless of how they submitted their application.
If the contractor does not consider electronic application submissions, contractors must solicit demographic information from job seekers who OFCCP informally often refers to as “Traditional Applicants.” While OFCCP often insists in audits both that its Internet Applicant definition is (a) different from its paper “Applicant” definition and (b) that the agency has successfully limited employers from excluding from the definition of a so-called paper applicant to that contained in Question and Answer 15 of the Questions and Answers to the Uniform Guidelines on Employee Selection Procedures, which reads as follows:
- What is meant by the terms “applicant” and “candidate” as they are used in the Uniform Guidelines?
- The precise definition of the term “applicant” depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending upon the employer’s practice.
The term “candidate” has been included to cover those situations where the initial step by the user involves consideration of current employees for promotion, or training, or other employment opportunities, without inviting applications. The procedure by which persons are identified as candidates is itself a selection procedure under the Guidelines.”
OFCCP agrees, as a result with UGESP’s Q&A 15’s interpretation of Title VII that a person who voluntarily withdraws, formally or informally, at any stage of the selection process is clearly no longer an “applicant.” Records (including self-ID forms) should, nonetheless, be kept for anyone who was an applicant at any stage of the selection process (so an employer may later prove, if need be, that the candidate withdrew his/her interest and was thus no longer an “Applicant”).
NOTE: If pressed in OFCCP audits and litigation, OFCCP retreats (as it must) from its stubborn insistence that all persons who express interest in employment are “applicants,” other than those who withdraw from the selection process per UGESPs Q&A 15. Rather, when contractors forcefully press OFCCP, it will yield and acknowledge that case law under Title VII and Executive Order 11246 recognizes that persons expressing interest for selection must be an “applicant” as Title VII case law decisions narrowly interpret that term, meaning the candidate must be minimally qualified, must remain interested in employment at all times after application, and a position must be available at the time the employer considers the candidate for selection.
In addition to a contractor collecting and tracking gender and race/ethnicity self-identification information pursuant to Executive Order 11246 and its OFCCP implementing Rules, section 4212(d) of VEVRAA requires covered federal government contractors and subcontractors with 50 or more employees to seek self-identification information regarding the “protected veteran” status of employees after making a job offer, but before the new hire begins work. Companies signatory to “a” non-exempt federal “government” contract/subcontract worth $150,000 or more, regardless of the number of employees, are “covered contractors or subcontractors.” Simultaneously, OFCCP’s rules at 41 CFR section 60-300-42 implementing section 4212 of VEVRAA require covered government contractors subject to Section 4212 of VEVRAA to invite applicants to voluntarily self-identify their protected veteran status prior to making a job offer, although not which particular definition(s) of protected veteran qualify them as such.
Contractors use this self-identification data to later create components for AAPs for protected veterans which OFCCP’s VEVRAA AAP Rules require. The contractor’s annual “assessment” of the “effectiveness” of outreach and positive recruitment efforts is one such example. Covered government contractors/subcontractors also use this information to annually complete the VETS-4212 form pursuant to 38 USC 4212(d) and the rules the Veterans Employment and Training Service (“VETS”), a subcomponent agency within the U.S. Department of Labor, has published at 41 CFR section 61-300. VETS is not OFCCP, so you will find the rules for VETS-4212 filings in the VETS rules, and not in OFCCP’s rules. Nonetheless, many of OFCCP’s VEVRAA rules are written “hand-in-glove” with the rules of VETS. Like the demographic information discussed above, OFCCP rules, for example, allow covered government contractors/subcontractors to undertake VETS-4212 reporting but, nonetheless, require those contractors/subcontractors to keep confidential all protected veteran self-identification information they obtain. See 41 CR section 61-300.42(c).
At the pre-offer stage, the contractor must invite applicants to inform the contractor whether the applicant believes that he or she is a protected veteran who may be covered by the Act – a “yes” or “no” question. To allow the applicant to answer the question, OFCCP’s regulations mandate that the pre-offer self-ID form both list and define the four categories of protected veterans (see below for that list and definitions). See Appendix B to part 60-300. This is because most veterans are not familiar with the four definitions of protected veterans set out in OFCCP’s VEVRAA Rules. The names and definitions of the four kinds of veterans who are “protected veterans” are not used in routine military discourse. (These four definitions sprang from the Jobs for Veterans Act, which became legally effective on October 1, 2003. The JVA operated as an Amendment to VEVRAA).
The pre-offer self-identification invitation does not need to solicit information regarding which of the four categories of protected veterans apply to the candidate. The four definitions are provided only to help the candidate know how to respond to the invitation to self-identify as a “protected veteran.” Said another way, there is no longer a duty (there once was) incumbent upon covered federal government contractors/subcontractors to report to OFCCP, or VETS, how many of each type of protected veteran comprise either the contractors/subcontractor’s applicant pool or employee rosters.
The four kinds of veterans who qualify as protected veterans under the JVA are:
- Disabled veteran: a veteran of the U.S. military, ground, naval, or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs; or – a person who was discharged or released from active duty because of a service-connected disability.
- Recently separated veteran: any veteran during the three-year period beginning on the date of such veteran’s discharge or release from active duty in the U.S. military, ground, naval, or air service.
- Active duty wartime or campaign badge veteran: a veteran who served on active duty in the U.S. military, ground, naval, or air service during a war, or in a campaign or expedition for which a campaign badge has been authorized under the laws administered by the Department of Defense.
- Armed forces service medal veteran: a veteran who, while serving on active duty in the U.S. military, ground, naval, or air service, participated in a U.S. military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.
Most contractors choose to present the company’s pre-offer VEVRAA self-identification form to applicants at the same time the contractor collects the race/ethnicity and gender information OFCCP’s Executive Order 11246 Rules require. If the contractor so desires, it may choose to combine the Executive Order and VEVRAA self-ID forms into a single paper or electronic document (and most covered federal government contractors do so).
At the post-offer stage, the contractor must also invite the candidate to complete a self-identification invitation to enable covered federal government contractors/subcontractors to complete and file (with VETS) a VETS-4212 report later in the year. This post-offer form must also list and define the four categories of protected veterans. At the post-offer stage, the contractor may solicit information regarding the protected veteran category to which the candidate belongs. The candidate, however, does not need to specify the category if he or she does not wish to do so. See Appendix B to part 60-300.
For purposes of completing the VETS-4212 Report, contractors are no longer required to report the category of protected veteran to which each protected veteran employee identifies. In addition, contractors and subcontractors are not required to survey their workforces on an ongoing basis to solicit updated information about veteran status to complete the VETS-4212 Report. As such, once an employee identifies as a protected veteran, he or she will remain so in the employer’s records, including those veterans who have identified as “recently separated veterans,” unless the contractor chooses to solicit information about veterans’ status at a later date in a lawful manner. See VETS-4212 Reporting Requirement FAQs, question #21 and 27. For example, if the contractor periodically surveys its employees to update personnel records, the contractor may ask its employees, if the contractor chooses to do so, to provide information regarding their veteran status at that time. Contractors which host annual events or breakfasts near Veterans Day for their veteran employees, for example, often take the occasion to invite attendees to exercise their discretion to self-identify so the company will know how many meals to order in the future. HR managers routinely report how surprised they are at how many additional employees volunteer that they are a protected veteran.
The VEVRAA regulations do not mandate that contractors use a prescribed form for self-identification purposes. The VEVRAA regulations, however, provide sample pre and post-offer forms, which you may find HERE. To the extent the contractor wishes to create its own VEVRAA self-identification form, OFCCP’s Rules at 41 CFR section60-300.42 (c) require the form to contain the following components:
- A statement that the company is a federal contractor required to take affirmative action to employ and advance in employment protected veterans pursuant to VEVRAA;
- A summary of the relevant portions of VEVRAA and the contractor’s AAP;
- A statement that the information is being requested on a voluntary basis;
- A statement that the information will be kept confidential;
- A statement that refusal to provide the information will not subject the applicant to adverse treatment; and
- A statement that the information will not be used in a manner inconsistent with VEVRAA.
Regardless of the form used, contractors must keep the completed forms separately from the application form and any other hiring records accessible to the hiring manager.
Similar to Executive Order 11246’s Internet Applicant recordkeeping provisions, OFCCP permits contractors to invite applicants to self‐identify as protected veterans after they meet the Internet Applicant requirements if the contractor so chooses (see Internet Application discussion above).
Please stayed tuned for the final blog in this series when we will discuss self-identification pursuant to Section 503 of The Rehabilitation Act of 1973, recordkeeping, and some practice tips to encourage self-identification.
 The word “should” is a non-binding term meaning the contractor may choose to accept OFCCP’s advice or reject it without sanction. The words “must” or “shall”, when supported by legally enforceable statutory and/or regulatory language, requires the contractor to act (or not act). It is not uncommon for OFCCP to weave together a paragraph, like the FAQs, below, intermittently laced with sentences using the words “must” and “should.” This makes it challenging for contractors to keep a sharp eye out for when they “must” do something and when they have discretion to do what they wish if different from OFCCP’s informal “Hints from Heloise.”