1G Review of a Section 503 AAP and Itemized Listing Data for Acceptability

To be acceptable, a contractor’s Section 503 AAP must include the items listed in 41 CFR 60-741.44 and 41 CFR 60-741.45. It is the responsibility of Investigators to determine whether the contractor included all of the required items in the contractor’s Section 503 AAP. Those items are listed in section 1E02 of the FCCM, and the acceptability assessment of each item is described below.

Contractors are required to take affirmative action to employ and advance in employment qualified individuals with disabilities. The contractor must affirm its commitment to this affirmative action requirement by incorporating it in a policy statement included in its AAP. (See 41 CFR 60-741.44(a)). The contractor must also post this policy statement on company bulletin boards. Applicants and employees with disabilities must be provided the policy statement in a format that is accessible and understandable such as Braille or large print versions of the notice.

At a minimum, to be acceptable, the policy statement must include:

• A statement indicating the top United States executive’s support for the EEO policy;
• A statement identifying the EEO official responsible for the implementation of the AAP;
• A statement that the contractor hires, recruits, trains and promotes without regard to disability;
• A statement providing for an audit and reporting system;
• A statement that the contractor will ensure that all employment decisions are based only on valid job requirements; and
• A statement that employees and applicants will not be subjected to harassment, intimidation, threats, coercion or discrimination because they engaged or may engage in filing a complaint, or assisted in a review, investigation or hearing related to any federal, state or local law requiring EEO for individuals with disabilities; or because they opposed any act deemed unlawful by any of the above-referenced laws; or because they exercised any other right under Section 503.

An AAP, to be acceptable, must affirm that the contractor reviews its personnel processes periodically. These processes must provide for the careful, thorough and systematic consideration of the job qualifications of applicants and employees with known disabilities for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. A contractor’s response to the Itemized Listing must provide their most recent assessment of its personnel processes. This assessment must include, at a minimum, a description of the assessment, any impediments to equal employment opportunity identified through the assessment, and any actions taken, including modifications made or new processes added, as a result of the assessment. (See 41 CFR 60-741.44(b)).

a. Adequacy of Present Procedures. Contractors may assert that their present personnel procedures are adequate and indicate that modifications to the procedures are unnecessary. Investigators must determine whether the information received during the desk audit supports that assertion to determine acceptability. Investigators must request additional information during the desk audit or on- site review if they are unable to make an acceptability determination.

b. Adverse Stereotyping. Part of the contractor’s review must be to ensure that its personnel processes are not stereotyping individuals with disabilities in a manner that limits their access to jobs for which they are qualified.

c. Access to Personnel Processes. The contractor must also ensure that applicants and employees with disabilities have equal access to personnel processes, including those implemented through information and communication technologies. Ensuring equal access to personnel processes includes providing any necessary reasonable accommodation to ensure that qualified applicants and employees with disabilities are able to apply, and are fully considered, for vacancies, promotions, and training opportunities. Appendix A to 41 CFR Part 60-741 provides guidelines for contractors on their duty to provide reasonable accommodations. With respect to the application process, an example of appropriate accommodation could be the provision of information on vacancies in a form accessible to those with vision or hearing impairments who have requested an accommodation. Though Section 503 and its implementing regulations do not require contractors to make their information and communication technology publicly “accessible,” contractors are encouraged to do so.

An AAP must contain the contractor’s schedule for the periodic review of all physical and mental job qualification standards to ensure that, to the extent they tend to screen out qualified individuals with disabilities, they are job-related and consistent with business necessity. To be acceptable, the AAP must affirm that the contractor completed a review of the physical and mental job qualification standards. Also, the contractor’s desk audit submission must contain the most recent assessment including the date the assessment was performed, and any actions taken or changes made as a result of the assessment. (See 41 CFR 60-741.44(c)). If the Investigator is evaluating a newly covered contractor, the AAP must provide a specific and reasonable time by which the contractor will review the physical and mental job qualifications.

The contractor must ensure that any inquiries or medical examinations regarding an applicant’s or employee’s medical condition made by, or at the behest of, the contractor are conducted following relevant laws, including the regulation at 41 CFR 60-741.23. All medical information the contractor obtains as a result of such inquiries or exams must be treated as confidential and maintained on separate forms and medical files, except as otherwise provided for in 41 CFR 60- 741.23(d). The Investigator may consult the EEOC’s Enforcement Guide: Preemployment Disability- Related Questions and Medical Examinations ( https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical ) for more information on pre-employment medical examinations and inquiries.

As a matter of nondiscrimination, contractors must make reasonable accommodation to physical and mental limitations when requested by qualified individuals with disabilities unless contractors can demonstrate that such accommodation would impose an undue hardship. In assessing undue hardship, contractors may consider factors such as financial costs and interference with the ability of other employees to do their jobs. As a matter of affirmative action, if an employee with a known disability is having significant difficulty performing their job and it is reasonable to conclude that the performance problem may be related to the disability, then the contractor must confidentially notify the employee of the performance problem and inquire whether it is related to the employee’s disability. If the answer is yes, the contractor must also confidentially inquire whether the employee needs a reasonable accommodation.

At the desk audit stage, the Investigator must review copies of reasonable accommodation policies, and documentation of any accommodation requests received and their resolution, if any. (See 41 CFR 60-741.44(d)(2)). If the contractor is six months or more into their current AAP when they receive the Itemized Listing, they must provide this information for at least the first six months of the current AAP year. Here are three examples of areas in which reasonable accommodations may be necessary: (1) accommodations in the application process; (2) accommodations that enable employees with disabilities to perform the essential functions of the position held or desired; and (3) accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.

Once an individual with a disability has requested a reasonable accommodation, the employer must determine the appropriate accommodation. Sometimes the appropriate accommodation will be obvious or included in the accommodation request, e.g., a request for a sign language interpreter. When it is not, the contractor should use a problem-solving approach to determine the appropriate accommodation. This approach may include initiating an interactive process with the accommodation requester that may entail: 1) analyzing the particular job involved and determining its purpose and essential functions; (2) consulting with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation; (3) identifying potential accommodations and assessing the effectiveness each would have in enabling the individual to perform the essential functions of the position; and (4) considering the preference of the individual to be accommodated, and selecting and implementing the accommodation that is most appropriate for both the employee and the employer.

Appendix A to the Section 503 regulations at 41 CFR Part 60-741, Guidelines on a Contractor’s Duty to Provide Reasonable Accommodation, provides additional information about the scope of the “undue hardship” defense and examples of reasonable accommodations, among other things. Though not required, OFCCP encourages contractors to develop and use written procedures to process requests for reasonable accommodations. Guidance on how to develop written procedures is in Appendix B to the Section 503 regulations at Part 60-741, Developing Reasonable Accommodation Procedures.

Contractors must develop and implement procedures to ensure that their employees are not harassed because of their disability status. A contractor should include a copy of these procedures in the AAP. This statement may be part of a broader anti-harassment policy that also prohibits harassment on other bases such as race and sex.

Under 41 CFR 60-741.44(f), the contractor must send written notification of the company policy related to its affirmative action efforts to all subcontractors, including subcontracting vendors and suppliers, requesting appropriate action on their part. Investigators should look for a description of the company’s process for sending these notifications in the AAP and verify that the contractor sent the notifications if an on-site review is conducted.

An acceptable AAP must affirm that the contractor engages in outreach and recruitment efforts reasonably designed to effectively recruit qualified individuals with disabilities. The contractor may engage in activities such as job fairs, recruitment activities with educational institutions and organizations that focus on job training and development for persons with disabilities, and posting of job opportunities with specialized organizations. Contractors may also develop their own outreach programs. The scope of the contractor’s efforts will depend upon circumstances, including the contractor’s size and resources, and the extent to which existing employment practices are adequate. Contractors can find more examples of outreach and recruitment activities at 41 CFR 60-741.44(f)(2).

The AAP must include documentation of the contractor’s assessment of its outreach and recruitment efforts that it made over the previous 12 months. This assessment is two-fold in that the contractor must evaluate the effectiveness of each effort and it must conclude whether the totality of its efforts has been effective in identifying and recruiting individuals with disabilities. When evaluating the effectiveness of each effort, the contractor must document its determination and, at a minimum, it must include the criteria used to make the determination. One of the criteria that must be included is the data collected under 41 CFR 60-741.44(k) discussed below in subsection 1G12. If, when looking at the totality of its efforts, the contractor concludes that outreach and recruitment efforts were not effective, it must identify alternative efforts that it will implement to fulfill its affirmative action obligations. Investigators must also ensure that the conclusion is reasonable for the AAP to be acceptable. To be an acceptable submission, contractors must provide all documentation discussed in this section with their AAP and Itemized Listing submission. Examples of what an Investigator should expect to see include:

• Documentation of meetings and agreements made with organizations outlining the recruiting expectations;
• Emails, mailings, or other correspondence indicating job vacancies shared with the organization;
• Documentation showing the number of applicants and/or hires from organizations tied to outreach and recruitment efforts; and
• Documentation of the analysis on outreach and recruitment efforts.

Investigators must record the results in CMS.

An acceptable AAP must address the contractor’s procedures to disseminate its EEO policy internally. The policy must be included in the contractor’s policy manual or otherwise made available to employees. Also, if the contractor is a party to a collective bargaining agreement, it must provide notice to union officials and/or employee representatives of the EEO policy and request their cooperation. The procedures must be designed to foster understanding, acceptance and support among the contractor’s employees, and to encourage employees to take actions to aid the contractor in meeting this obligation. The regulations at 41 CFR 60-741.44(g)(3) provide examples of the types of activities contractors may undertake to enhance their efforts to employ and to advance in employment individuals with disabilities. For example, contractors may schedule periodic employee meetings to discuss the policy or conduct meetings with executive, managerial and supervisory personnel to explain the intent of the policy, and to delineate individual responsibility for its implementation.

An acceptable AAP contains a narrative description of the contractor’s internal audit and reporting system. The system must be designed to perform and document the following actions:

• Measure the overall effectiveness of the AAP;
• Indicate any need for remedial action;
• Determine the degree to which the contractor’s objectives have been attained;
• Determine whether known individuals with disabilities have had the opportunity to participate in all company-sponsored educational, training, recreational, and social activities; and
• Measure the contractor’s compliance with the AAP’s specific obligations.

Documentation of these actions must be retained as employment records and submitted in response to the Scheduling Letter. An acceptable AAP will also specify the frequency of reports and audits, and describe the actions taken to address deficiencies identified by the audit and reporting system.

An acceptable AAP must identify the official assigned responsibility for implementing the contractor’s affirmative action activities for individuals with disabilities, and describe that official’s responsibilities. The contractor must give this official the necessary senior management support and staff to manage the implementation of the program. The AAP should also describe the responsibilities of line management in carrying out the program.

Contractors are required to train their personnel involved in recruitment, screening, selection, promotion, disciplinary and related processes about the company’s EEO obligations and, if appropriate, about the contractor’s affirmative action commitments under Section 503. This section of the AAP should document that these personnel have been trained to ensure that the commitments in the AAP are implemented.

Contractors are required to document the below information on an annual basis as part of their AAP, maintaining the data for three years, under 41 CFR 60-741.44(k).

• The total number of job openings and total number of jobs filled. Job openings include those that may be externally and internally filled;
• The total number of applicants for all jobs;
• The number of applicants who self-identified as individuals with disabilities or who are otherwise known to be individuals with disabilities;
• The total number of applicants hired; and
• The total number of applicants with disabilities hired.

When reviewing the AAP for acceptability, the Investigator must verify that the contractor provided documentation of computations or comparisons of the above information, as requested in the Itemized Listing. These computations or comparisons are criteria used to evaluate the effectiveness of the contractor’s outreach and positive recruitment efforts. The data may also be used to analyze applicant trends to inform the contractor’s review of personnel practices and self-audit.

The Section 503 AAP regulation at 41 CFR 60-741.45 requires that contractors annually analyze their utilization of individuals with disabilities against the 7% aspirational goal established by OFCCP. This goal serves as an equal opportunity objective that should be attainable by taking the affirmative actions required in the Section 503 regulations. For an AAP to be considered acceptable, it must include the annual utilization goal analysis.

In the utilization analysis, contractors with more than 100 employees must evaluate the representation of individuals with disabilities within each job group of their workforce. For this analysis, contractors must use the same job groups that they use to evaluate utilization under Executive Order 11246. Like the Executive Order job group analysis, contractors with a total workforce of fewer than 150 employees may use the EEO-1 categories as job groups. A contractor with 100 or fewer employees has the option to measure the representation of individuals with disabilities in its entire workforce.

If the percentage of individuals with disabilities in one or more job groups, or a contractor’s entire workforce for smaller companies, is less than the 7% utilization goal, the contractor must determine whether and where barriers to EEO exist. To identify any such problems, contractors must assess personnel processes, the effectiveness of its outreach and recruitment efforts, the results of its AAP self-audit, and any other areas that might influence the success of the AAP and provide a description of these efforts with their AAP and Itemized Listing submission. When a contractor finds problem(s), it must develop, implement, and document action-oriented programs to correct them such as modifying personnel processes or taking a different approach for outreach and recruitment. For example, if the contractor finds the totality of its outreach and recruitment efforts was not effective in identifying and recruiting qualified individuals with disabilities for employment, the contractor should take action to identify recruitment sources that are not working and search for sources that yield better results or introduce new outreach measures to increase the number of qualified applicants with disabilities. Several examples of outreach and recruitment activities are listed at 41 CFR 741.44(f)(2). To be an acceptable submission, contractors must provide all documentation discussed in this section with their AAP and Itemized Listing submission.

When reviewing the AAP for acceptability, the Investigator must closely examine the contractor’s AAP to ensure it describes the utilization goal analysis, identifies any barriers to equal opportunity employment, and includes a description of action-oriented programs that the contractor has designed to address any barriers identified. If a contractor is six months or more into its current AAP year when it receives the Scheduling Letter and Itemized Listing, it must also submit the information that shows its current year progress toward meeting the utilization goal. Investigators must record results in CMS.