by On July 27, 2023, the Office of Federal Contract Compliance Programs (OFCCP) expanded its guidance regarding affirmative action obligations of federal contractors to address recent U.S. Supreme Court decisions regarding higher education practices. The addition to the agency’s Frequently Asked Questions states:
Are the affirmative action obligations OFCCP enforces similar to the affirmative action steps taken by some educational institutions to increase the racial diversity of their student bodies?
No. OFCCP enforces nondiscrimination and affirmative action obligations to ensure equal opportunity in the federal contractor workforce, while some post-secondary educational institutions have implemented a wholly distinct concept of affirmative action that permitted the use of race to be weighed as one factor among many in admissions processes. Further, the Supreme Court’s decision in Students for Fair Admissions applies only to higher education admissions programs and does not address the employment context. See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, slip op. at 2-5, 23-30 (U.S. June 29, 2023). There continue to be lawful and appropriate ways to foster equitable and inclusive work environments and recruit qualified workers of all backgrounds. OFCCP’s affirmative action requirements enable employers to reduce the risk of discrimination in their workforces and recruit and retain diverse talent. https://www.dol.gov/agencies/ofccp/faqs/AAFAQs#Q6
The OFCCP provides its affirmative action FAQs to help contractors better understand their obligations to ensure equal employment opportunities for applicants and employees. In the preface to the FAQs, the agency states that the premise of affirmative action is that, absent discrimination, over time a contractor’s workforce will generally reflect the demographics of the qualified available workforce in the relevant job market. Affirmative action requirements intend to ensure equal opportunity without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.
