What is eeo in construction?
Executive Order 11246, as amended (Parts II, III, and IV)(https://www.dol.gov/ofccp/regs/statutes/eo11246.htm) (41 CFR Parts 60-1, 60-3, 60-4, 60-20, and 60-50(https://www.dol.gov/dol/cfr/Title_41/Chapter_60.htm))
Executive Order 11246 and its implementing regulations are administered by the Office of Federal Contract Compliance Programs (OFCCP) and cover employers with Federal contracts or subcontracts that exceed $10,000, or that will (or can reasonably be expected to) accumulate to more than $10,000 in any 12-month period.
Covered contracts may be for the purchase, sale, or use of personal property, nonpersonal services, or both. In this context, the term "nonpersonal services" includes services such as construction. Agreements where the parties stand in the relationship of employer and employee are not covered.
In addition, E.O. 11246 and the implementing regulations cover contractors and subcontractors who hold any federally assisted construction contracts in excess of $10,000. Under Section III of E.O. 11246, in all contracts for construction to be financed wholly or partially by Federal financial assistance, all applicants for Federal financial assistance must include a specific clause notifying the construction contractor that it is covered by E.O. 11246. All applicants must also agree to cooperate with the Secretary of Labor in enforcing E.O. 11246.
The following types of contracts and subcontracts are exempt from E.O. 11246:
Specific exemptions may apply to the following:
Moreover, contractors or subcontractors that are religious entities may grant employment preferences to individuals of a particular religion but must comply with other requirements of E.O. 11246.
E.O. 11246 and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a Federal contract or subcontract. This coverage is narrower than that which applies to private sector employers.
E.O. 11246 and the implementing regulations require covered contractors and subcontractors to refrain from discrimination and take affirmative steps to ensure that applicants and employees receive equal employment opportunity regardless of race, color, religion, sex, sexual orientation, gender identity or national origin. Additionally, a complaint may be filed if an individual believes they’ve experienced discrimination because they asked about, discussed or disclosed their pay or the pay of their co-workers.
Covered construction contractors and subcontractors must make good faith efforts to achieve goals set by OFCCP for the employment of women and minorities in all crafts and trades on their work sites. These contractors and subcontractors must pursue such goals on all their construction work, whether or not Federal or federally assisted. They must also include a specific equal opportunity clause in each of their nonexempt contracts and subcontracts. The Order and the regulations provide the required language for this clause.
Although they are not required to create written affirmative action programs (AAPs), construction contractors and subcontractors must follow the regulations that require Federal and federally assisted construction contractors and subcontractors to take specific affirmative steps to ensure equal employment opportunity. Contractors and subcontractors must also fully document their affirmative action efforts.
All construction contractors and subcontractors, whether or not federally assisted, are prohibited from discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin in such employment practices as recruitment, rates of pay, hours, upgrading, layoff, promotion, selection for training, advertising efforts, job classifications, seniority, retirement ages, or job fringe benefits such as employer contributions to company pension or insurance plans. Additionally, E.O. 11246 prohibits contractors and subcontractors from taking adverse action against employees or applicants for asking about, discussing or disclosing their pay or the pay of their co-workers. Sexual harassment is also a violation of the nondiscrimination provisions of E.O. 11246.
The regulations also include other specific requirements, such as those summarized below.
Anyone has the right to file a complaint with OFCCP if he or she believes that a Federal contractor or subcontractor has discriminated on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. Additionally, a complaint may be filed if an individual believes they’ve experienced discrimination because they asked about, discussed or disclosed their pay or the pay of their co-workers. In most cases, complaints must be filed within 180 days of the discriminatory action. Anyone may contact OFCCP with a question about interpreting the regulations, filing a complaint, or any other related matter.
Contractors and subcontractors who hold a single Federal contract or subcontract in excess of $10,000 or who hold contracts or subcontracts with the Federal government in any 12-month period that have a total value of more than $10,000 are required to post the Equal Employment Opportunity (EEO) notice, EEO is the Law poster (PDF) and supplement. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of Federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also post the EEO is the Law poster and supplement.
The notice must be posted in conspicuous places available to employees and applicants for employment and representatives of each labor union with which the covered contractor or subcontractor has a collective bargaining agreement, such as, the personnel office, work-out facility, lunchroom, or company bulletin board. There is no particular size requirement.
The notice is also available in Spanish and Chinese. Posting of the notice in languages other than English is not required.
Additionally, contractors and subcontractors who hold a single Federal contract or subcontract in excess of $10,000 or who hold contracts or subcontracts with the Federal government in any 12-month period that have a total value of more than $10,000 are required to post the Pay Transparency Nondiscrimination Provision. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of Federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also post the Pay Transparency Nondiscrimination Provision.
This posting requirement may be accomplished by posting the provision electronically or by posting a copy of the provision in conspicuous places available for employees and applicants. There is no particular size requirement.
Personnel records. Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:
Federal contractors and subcontractors with fewer than 150 employees or a contract of less than $150,000 have to keep records for one year from the date of the making of the personnel record or personnel action, whichever occurs later.
Federal contractors and subcontractors with 150 or more employees or who have a government contract of $150,000 or more are required to keep employment records for two years from the date of the making of the personnel record or personnel action, whichever occurs later.
For any record contractors maintain, they must be able to identify the gender, race, and ethnicity of each employee; and where possible, the gender, race, and ethnicity of each applicant or Internet applicant, whichever is applicable to the particular position.
The Internet applicant regulations address recordkeeping and the use of the Internet and electronic data technologies in contractors’ recruiting and hiring processes. This regulation includes soliciting data on the race, gender and ethnicity of applicants. For more detail about recordkeeping requirements for Internet applicants, see OFCCP’s Frequently Asked Questions.
While covered construction contractors and subcontractors are not required to have a written AAP, they must maintain documentation of the actions they took to meet the contract specifications (the 16 Steps).
All covered Federal contractors and subcontractors who have 50 or more employees, and who have a contract, subcontract, or purchase order amounting to $50,000 or more or serve as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes are required to submit the Employer Information Report also known as the EEO-1 Report each year to Equal Employment Opportunity Commission and the Department of Labor's Office of Federal Contract Compliance Programs Joint Reporting Committee. For information on filing the EEO-1 Report see EEO-1 forms.
Note that covered contractors may be asked to submit AAPs and other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.
OFCCP conducts compliance evaluations and complaint investigations assessing whether Federal contractors and subcontractors are in compliance with E.O. 11246. If a violation is found, OFCCP may ask the Federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may, through its attorneys (Solicitor of Labor), initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor, or refer the matter to the Department of Justice for action by the Attorney General.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge (ALJ), who hears the case and recommends a decision. If the contractor or subcontractor is dissatisfied with the ALJ's decision, it may appeal the decision to the Department of Labor's Administrative Review Board. The Board issues the final decision, whether or not there is an appeal.
If the Board finds that the contractor or subcontractor has violated E.O. 11346, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination. Depending on the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, and debarment.
If the contractor or subcontractor is dissatisfied with the Board's decision, it may appeal that decision to the Federal courts.
OFCCP generally refers individual complaints alleging discrimination based on race, color, religion, sex, or national origin to the Equal Employment Opportunity Commission.
Covered contractors and subcontractors that qualify as "employers" under Title VII of the Civil Rights Act of 1964 are required to comply with the Pregnancy Discrimination Act of 1978. Additional information on this law may be found at the Equal Employment Opportunity Commission’s Facts About Pregnancy Discrimination webpage. Such employers must also provide equal fringe benefits, and make equal contributions for such benefits, for men and women.
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with Executive Order 11246. Among the many resources available are:
Office of Federal Contract Compliance Programs (OFCCP)(https://www.dol.gov/ofccp/) E-mail: OFCCP-Public@dol.gov Tel: 1-866-4USADOL (1-866-487-2365) or 1-800-397-6251; TTY: 1-877-889-5627
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Published: July 2019
This section presents the requirements for administration of the nondiscrimination and equal employment opportunity (EEO) provisions of the contract. The total EEO program is complex and involves functional units outside of Construction. Requirements in this section apply primarily to activities and responsibilities resulting from contractual requirements and are not necessarily complete for either Caltrans or the contractor insofar as the total responsibilities and activities.
California requirements for public works contractors on the subjects of nondiscrimination and EEO are located in Title VI of the Civil Rights Act of 1964; California Government Code, Section 12990; Title 2 of the regulations of the Fair Employment and Housing Commission; and California Code of Regulations, Sections 11105 and 11122.
Sections 7-1.02I(2), “Nondiscrimination,” and 7-1.11B, “FHWA-1273,” of the Standard Specifications and in the required federal contract provisions of the specifications call the contractor’s attention to these and other requirements. Under the terms of the contract, the contractor is responsible for its subcontractors’ compliance.
The resident engineer or district labor compliance officer must discuss the nondiscrimination and EEO provisions of the contract at the preconstruction meeting and advise the contractor of the requirements in Title VI of the Civil Rights Act of 1964. Refer to Section 5-0, “Conduct of the Work,” of this manual for details on preconstruction conferences.
District labor compliance officers or project personnel conduct onsite interviews with employees of the contractor and subcontractors. Conduct employee interviews for nondiscrimination and EEO at the rate of at least two employees per contract, per month, including at least one interview from the prime contractor and each subcontractor until the contract is accepted or all employees on the project have been interviewed. Record interviews on Form CEM-2504, “Employee Interview: Labor Compliance/EEO,” or Form CEM-2504 (Spanish), “Entrevista de Empleado: Cumplimiento Laboral/IOE,” if applicable. EEO interviews are done in conjunction with the labor compliance interviews as a means of verifying that the contractors and subcontractors are in compliance with the EEO and the labor nondiscrimination contract provisions mandated by state and federal statutes and regulations.
When an employee’s responses to the EEO questions in Form CEM-2504 indicate possible violations, the district labor compliance officer must forward a copy of that interview to the Division of Construction, Labor Compliance Unit, for further action. Refer to Section 8-102A (3), “Interviews With Contractor Personnel,” of this manual for more information.
Verify that the contractor’s EEO policy and the “Equal Employment Is the Law” poster are posted in a prominent location on the project for all employees to review for the duration of the contract. Check to see that the contractor has these posted when visiting each construction location. The “Equal Employment Opportunity Is the Law” poster must also be posted in the resident engineer’s and contractor’s office.
The district labor compliance officer verifies that the policy and poster are displayed at offsite locations during a source document audit. If the contractor is noncompliant, the district labor compliance officer provides additional posters and writes a memo advising the resident engineer of the contractor’s compliance status for inclusion in the project file.
A checklist of posters is available on the labor compliance website:
https://dot.ca.gov/programs/construction/labor-compliance/labor-compliance-posters
A complaint that implicates the contractor's employment practice is considered an EEO complaint based on Title VII of the Civil Rights Act of 1964. EEO complaints may originate as a direct complaint from the contractor's employees or as a result of a contractor employee interview. When a complaint is received, document all EEO complaints in a daily report, a memo to the project files, or on form CEM-2504. The public, contractors, suppliers, and vendors may also present these complaints. File the original EEO complaint in the project records and send a copy of the complaint to the district labor compliance officer.
The district labor compliance officer sends complainants a letter notifying them of their rights under the Civil Rights Act of 1964. The letter also provides a complete list of resolution options, including:
A copy of the following items should be included in the letter:
https://www.calaborlaw.com/wp-content/uploads/2009/09/DFEH-159-DFEH-Complaint-Process.pdf
https://publicportal.eeoc.gov/portal/Login.aspx?ReturnUrl=%2fportal%2f
For a sample letter to the complainant, refer to Example 8-2.1., "Sample Letter to the Complainant (Employee)," at the end of this section.
In addition, the district labor compliance officer sends a notification letter to the prime contractor that an employee has alleged discrimination and that the employee was given notice of available recourse. The labor compliance officer must not divulge the employee's name. The letter reminds the contractor of the obligation to conduct an investigation pursuant to contract requirements. For a sample letter to the contractor, refer to Example 8-2.2, "Sample Letter to the Contractor," at the end of this section.
The district labor compliance officer refers the issue to the Division of Construction, including copies of the letter to the complainant, the letter to the contractor, and the employee interview form. Take further district Construction actions only on the advice and guidance of the Division of Construction.
The Civil Rights Act of 1964, Title VI, Section 601, states in part, “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
Any complaint indicating that the practices of Caltrans have the effect of discrimination is considered a Title VI complaint. It may originate from a direct complaint made by the public or by a contractor. Refer Title VI complaints that occur during construction to the district labor compliance officer, who refers the complaint to the Division of Construction. The division reviews the complaint, gathers relevant documents, and refers it to the Discrimination Complaint Investigations Unit to process the complaint and take further action as necessary.
During construction, amendments to the contract may occur by change order. Some change orders may invoke Title VI complaints or violate the principles of environmental justice. Environmental justice is the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. Examples include new traffic detours; changes in the length or limits of the project; mitigation measure changes; materials changes; and changes in contract-mandated material borrow, disposal sites, or setup of portable asphalt or concrete plants.
Take affirmative measures to assure nondiscrimination and preservation of environmental justice when administering changes. If a change requires Title VI mitigation measures, the resident engineer may conduct community meetings, prepare news releases, or hire public relations consultants to keep communities informed on project scope and schedule changes. Consult with the Division of Construction’s Labor Compliance Officer, the design project engineer, and the project manager as necessary to evaluate the effects of any significant change including compliance with Title VI requirements.
Federal-aid projects use the training special provision when a project is of sufficient size and duration to support full training periods. When the special provision provides a number of required trainees or apprentices, Section 7-1.11D, “Training,” of the Standard Specifications applies. The intent of the provision is to enhance contractors’ EEO programs through on-the-job training. Training and upgrading of minorities and women toward journeyperson status are the primary objectives of the provision. However, the contractor must not use the training program to discriminate against an applicant for training. The provision states the number of apprentices or trainees the contractor must use on the project and provides guidance on actions the contractor must take. In addition, the provision provides for reimbursement to the contractor for each apprentice or trainee used on the project.
Before the work involving apprentices or trainees begins, the resident engineer requests that the contractor submit a training plan with the number of apprentices or trainees in each classification, the training program to be used, and the start date for training in each classification. Review the training plan to confirm that it meets the requirements of the training specification. Subcontractors who will be using apprentices or trainees must provide a plan for them. Apprentices and trainees must be employed under programs currently approved by the U.S. Department of Labor, Office of Apprenticeship Training, Employer and Labor Services. Contractors must submit evidence of apprentice or trainee registration in an approved training program to the resident engineer or district labor compliance officer. Contractors may use trainees only when the trainee wage schedule for the specific classification is listed in the federal wage determination applicable to the contract.
The resident engineer may accept a training program not currently approved by the Department of Labor as long as the program meets the EEO requirements of the federal contract special provisions. Contractors must submit a request to the resident engineer for approval of such programs before their use on the project. Submit the contractor’s request to the district labor compliance officer who forwards it to the Division of Construction for verification of conformance to federal requirements. If the training program meets the requirements, the Division of Construction will submit the program to the Federal Highway Administration (FHWA) with a recommendation for approval. Upon approval from the FHWA, the division will notify the district labor compliance officer and resident engineer. Notify the contractor of the training program approval.
Write a change order, as specified in the contract, to provide the appropriate compensation for the apprentices or trainees. The total amount of the change order should reflect the contractor’s plan for use of apprentices or trainees. No markup will be applied to the specified hourly rate.
During construction, the contractor must give periodic reports demonstrating performance regarding training requirements. Tailor reporting periods to the duration of the project. For example, a year-long project should require at least quarterly reports. Review the reports for conformance with the contractor’s training plan before approving reimbursement for training hours. Do not reimburse the contractor unless the reports have been provided. Reimburse the contractor for training in excess of the required number of apprentices or trainees as long as evidence of registration in a DOL program is provided. When an apprentice or trainee quits the project, the contractor must provide the reason. The contractor will have fulfilled contract requirements if applicable training has been provided to the specified number of apprentices or trainees.
The Code of Federal Regulations, Title 23, Section 230.121 requires prime contractors and subcontractors, regardless of tier, to submit the FHWA Form PR-1391, “Federal-Aid Highway Construction Contractors Annual EEO Report” to the resident engineer for review. The form shows the composition of the contractor’s workforce by race and gender for each job category. The requirement applies to all contractors, regardless of tier, who have federal-aid contracts exceeding $10,000 and who worked during all or any part of the last payroll period preceding the end of the month of July. Contractors are subject to a progress pay deduction for failure to submit a satisfactory form.
Make EEO deductions in situations where the contractor or subcontractor fails to submit the required training plan, does not post the necessary EEO information, or fails to provide FHWA Form PR-1391, “Federal-Aid Highway Construction Contractors Annual EEO Report.”
Before taking a deduction, notify contractors found to be noncompliant in writing, advising them of the specific deficiencies. Refer to Section 5-103F (1c), “Deductions,” of this manual for instructions on taking the deduction.
This report was possible due to the excellent work of many in the EEOC and the rich contributions of many others outside the agency. I wish to thank each of them. In particular, I owe a debt of gratitude to the many workers whose courage and persistence inspired this project, including the charging parties who brought forward their claims and the witnesses who presented testimony at Commission hearings. These workers spoke out about their treatment while seeking employment or on the job, and in doing so helped change their workplaces for the better.
I also recognize the community organizations, worker centers, tradeswomen’s organizations, industry groups, unions, civil rights organizations, and companies working to make construction a welcoming environment for all and helping women and workers from underrepresented communities find employment, stay, and thrive in the industry. In addition, I want to acknowledge the advocates and researchers who have focused their work on this critical industry.
Thank you also to the Office of the Vice Chair, the Office of Communications and Legislative Affairs, the Office of Enterprise Data and Analytics, the Office of Field Programs, the Office of General Counsel, and the Office of Legal Counsel for their careful review of the report and thoughtful feedback.
Finally, I wish to express my sincere thanks to the incredibly dedicated and hardworking current and former members of my staff as well as the many legal interns who made invaluable contributions along the way—among them Allie Bohm, Laura Feldman, Eunice Ikene, Davis Kim, Antonio Lee, Brandi Meredith, Amber Trzinski-Fox, and the incomparable Elizabeth Fox-Solomon, whose tireless efforts were truly indispensable.
May 2021 median pay, Construction and Extraction Occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Sept. 8, 2022); Construction Managers, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Nov. 16, 2022); Data for Occupations Not Covered in Detail, Construction and extraction occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Dec. 16, 2022).
2022 Household Data Annual Averages, Table 11, Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, Labor Force Statistics from the Current Population Survey, Bureau of Labor Statistics (last modified Jan. 25, 2023).
May 2021 median pay, Construction and Extraction Occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Sept. 8, 2022); Construction Managers, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Nov. 16, 2022); Data for Occupations Not Covered in Detail, Construction and extraction occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Dec. 16, 2022).
2022 Household Data Annual Averages, Table 11, Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, Labor Force Statistics from the Current Population Survey, Bureau of Labor Statistics (last modified Jan. 25, 2023).
May 2021 median pay, Construction and Extraction Occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Sept. 8, 2022); Construction Managers, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Nov. 16, 2022); Data for Occupations Not Covered in Detail, Construction and extraction occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Dec. 16, 2022).
2022 Household Data Annual Averages, Table 11, Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, Labor Force Statistics from the Current Population Survey, Bureau of Labor Statistics (last modified Jan. 25, 2023).
May 2021 median pay, Construction and Extraction Occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Sept. 8, 2022); Construction Managers, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Nov. 16, 2022); Data for Occupations Not Covered in Detail, Construction and extraction occupations, Occupational Outlook Handbook, Bureau of Labor Statistics (last modified Dec. 16, 2022).
2022 Household Data Annual Averages, Table 11, Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, Labor Force Statistics from the Current Population Survey, Bureau of Labor Statistics (last modified Jan. 25, 2023).
This section presents the requirements for administration of the nondiscrimination and equal employment opportunity (EEO) provisions of the contract. The total EEO program is complex and involves functional units outside of Construction.
