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.

What is OFCCP / EEOC?

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.

What are the main requirements of OFCCP and EEOC regulations?

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:

• Race, skin color, religion, sex, national origin, or disability may not be considered when making interviewing or employment decisions
• Job descriptions must not include language that specify physical or mental requirements beyond those that are relevant and necessary for the job (for instance, a typical desk job may not have height, weight, or strength requirements that may prove to be discriminatory)
  

For just EEOC:

• Citizenship status may not be considered when making interviewing or employment decisions
  

For just OFCCP:

• Sexual orientation*, gender identity*, or status as a protected veteran may not be considered when making interviewing or employment decisions
• Candidates must be asked to provide, though they may decline to disclose, information regarding their gender, race, and protected veteran status
• Candidates should be asked about their disability status on each job application because this data needs to be kept up to date, and disability status can change

1. Note that conversely, non-OFCCP companies are forbidden to ask about disability status on job applications, so this can be a bit tricky—you should be sure about which bucket you fall into!
2. While the disability voluntary self-identification rules vary, all employers who fall under either jurisdiction should ensure that reasonable accommodations are available for applicants

• All jobs must be posted to your state’s Employment Service Delivery System (ESDS)
• All job postings must contain an Equal Opportunity tagline. The required tagline can vary depending on the type of business, so be sure to review the guidelines here for more information.

How do you stay OFCCP / EEOC compliant and still promote diversity in your organization?

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.

How do you protect yourselves from OFCCP / EEOC liability while sourcing and hiring?

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:

• Make sure your job description is free of discriminatory or biased language or requirements
• Make sure your job description is open for anyone to apply before accepting applications
• Where appropriate, ask candidates to provide information about their gender, race/ethnicity, and (for federal contractors and subcontractors only) veteran status, disability status—and always give candidates an option to choose not to identify, even if a selection is mandatory 
• Store data: this will help you in an audit, and in many if not most cases is required by law
  

Best practices:

• The best way to avoid unconscious bias is an unbiased interview process. There are many ways to help reduce bias in interviewing, but the method we use at WayUp, both for ourselves as well as for the phone screens we perform on behalf of our clients, is known as a Structured Interview. Structured interviews ensure that all candidates receive the same questions and are held to the same standard.
• During the interview process, do not ask a candidate about their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.
• Consult with an employment lawyer to review your employer marketing, recruitment and interview practices.