By Joanna Colosimo
In the wake of the revocation of Executive Order (EO) 11246, many equal employment opportunity (EEO) and compliance leaders are re-evaluating their state non-discrimination and affirmative action plan (AAP) requirements that may have previously been satisfied by the development of federal AAPs. One such state that requires reporting similar to EO 11246 AAPs from state contractors is California, as detailed by its Code of Regulations, which outlines requirements for nondiscrimination programs for state contractors and subcontractors. These provisions are applicable to state contractors that meet minimum thresholds in the state of California.
These requirements, referred to as a nondiscrimination program, are designed to ensure equal employment opportunity for all employees or applicants. Required elements of nondiscrimination plans include the following:
- Development or reaffirmation of the contractor's equal employment opportunity policy in all personnel actions.
- Formal internal and external dissemination of the contractor's policy.
- Establishment of responsibilities for implementation of the contractor's program.
- Annual identification of any existing policies or practices that have resulted in disproportionately inhibiting the employment, promotion or retention of any group protected by the Act.
- Development and execution of policies and procedures designed to correct problems and attain equal employment opportunities for all applicants and employees.
- Design and implementation of internal audit and reporting systems to measure the effectiveness of the total program.
Statistical Analysis Required
Under the “Annual identification of any existing policies or practices” section, which is labelled as Item 4, the following analyses are required:
- Selection Procedures Analysis: Identify and analyze contractor promotional and entry-level selection procedures to find policies disproportionately affecting protected groups. Retain such practices only if justified by business necessity, demonstrating no reasonable alternatives. Eliminate unjustifiable practices.
- Workforce Analysis: Provide a listing of each job title in collective bargaining agreements or payroll records, ranked by pay within each department or unit, including supervisory roles. List total incumbents by gender and race/national origin with wage rates or salary ranges. If separate work units or progression lines exist, provide separate lists, indicating the order of jobs for movement to the top.
- Utilization Analysis: Employers with 250+ employees must analyze major job groups to determine underutilization of protected groups compared to their labor force availability. Job groups consist of similar content, wage rates, and opportunities. Define underutilization as statistically significant lower utilization than availability. Contractors must conduct separate analyses for each protected group.
An employer with multiple facilities may establish a single nondiscrimination program for its organization but must perform separate analyses of employment selection and the workforce analysis for each establishment in California.
Organizations should evaluate their state contracts with California and assess if they are subject to these requirements and plan appropriately.
DCI will continue to digest each state’s, including California’s, enforcement of non-discrimination and EEO principles. If you need assistance complying with California’s nondiscrimination plan requirements, please feel free to reach out to DCI for support.