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Why is nondiscrimination important for federal Contractors?

Article by Matt Nusbaum, Director - BCG Institute for Workforce Development (BCGi)

When it comes to non-discrimination programs for federal employees, it’s easy to think that all workers receive uniform levels of non-discrimination training. For example, most people assume that laws like Title VII of the Civil Rights Act or laws implementing Executive Order 11246 contain some requirement to train federal employers on their obligation to make sure they are not using protected characteristics — sex, race, religion, or national origin — when making employment decisions. However, that is simply not the case.

Title VII prohibits discrimination based on those specific characteristics, but it remains silent on how to avoid discrimination. Even deeper, Executive Order 11246 was meant to provide a blueprint for how to ensure non-discrimination in the workplace, but it fails to provide explicit training requirements. As a result, training requirements fell by the wayside, becoming a “nice-to-have” rather than a “must-have.”

The Office of Federal Contract Compliance Programs (OFCCP) focuses on regulations regarding affirmative action for individuals with disabilities and protected veterans. As such, when Executive Order 11246 is amended in the future, an explicit training requirement will very likely be added. Non-discrimination training helps to ensure that affirmative action programs are successful and should therefore be mandatory for federal contractor employers.

Why Is Non-discrimination Important for Federal Contractors?
The purpose of affirmative action requirements is to “establish fair access to employment opportunities to create a workforce that is an accurate reflection of the demographics of the qualified available workforce in the relevant job market.” In other words, affirmative action regulations for federal contractor employers are meant to keep non-discrimination at the forefront of people’s minds. This endeavor demands explicit training requirements that detail to viewers exactly what their non-discrimination obligations are. By implementing specific training requirements, employers show how committed they are to providing all employees and job candidates with an even playing field.

When non-discrimination training is treated lightly or isn’t required, an organization suffers. EEO compliance is a non-revenue-generating function, so budgets are often strictly limited to clearly enumerated compliance requirements. If a training program is not required, it will likely go without funding. While this may change when an actual discrimination violation is found, it’s usually too late to reverse course. The damage has already been done.

Non-discrimination training is also essential because non-discrimination and affirmative action are complex. When people hear the words affirmative action, their minds automatically jump to corrective affirmative action measures, such as quotas, point systems, or set-asides. While these measures are sometimes necessary to remedy past discrimination, corrective action should be considered a last resort. A federal affirmative action program actually involves preventive affirmative action that avoids corrective measures. Not only is training necessary for decision makers to understand what is expected of them, but it should also lead to better buy-in and participation by overcoming the misunderstandings and misconceptions that surround “affirmative action.”

Decision makers need to know what to do to avoid breaking the law, and employees need to know what their rights are so that they can enforce them if necessary. A well-informed employee base should keep the employer on its toes to actively prevent discrimination from occurring in the first place. That is why the OFCCP’s regulations contain so many notification requirements. Using the same logic, there are specific ways employers can implement non-discrimination training for federal contractors.

How Federal Contractor Employers Can Properly Implement Non-discrimination Training
Most employers understand that discrimination based on certain protected characteristics outlined in Title VII of the Civil Rights Act is illegal, and most people have a fairly good understanding of what those characteristics are. Laws against non-discrimination should not be a surprise to anyone. Still, there are basic training requirements that should be part of every onboarding package for federal contractors. Here’s how federal contractor employers can implement non-discrimination training:

1. Focus on separate and more robust training.
While developing non-discrimination training programs, it’s important for employers to focus on their particular audience. For example, employers can gauge employees’ current experience with affirmative action. Have they undergone any non-discrimination training in the past? Employee training should focus on what the employees’ rights are and how to enforce them.

Additionally, hiring manager and recruiter training should focus on how the organization’s equal employment opportunity and affirmative action obligations impact how they are expected to make and document employment selection decisions. Plus, federal contractor employers should consider some level-setting training for executives to help them better understand the compliance function and its actual needs.

2. Include problem-solving courses.
Effective non-discrimination programs equip employers and managers with the right tools to make non-discrimination training as comprehensive and impactful as possible. Another way to ensure that non-discrimination training programs are effective is to include ways for leaders to resolve potential problems. This should be done in a way that is constructive rather than negative.

For example, if an employee voices something during the initial training that contains racial bias, the trainer should acknowledge what the employee said and follow up with positive reinforcement. For instance, the trainer could say, “Yes, Jessica, thank you for bringing that up. Everyone, Jessica just brought up a specific behavior or bias that I need your help correcting.” Nothing in the training should target specific employees or tear people down.

3. Offer “refresher” training.
If the training program is robust and comprehensive, people will likely need continuing courses to remind them of all they have learned. Employees and managers should receive refresher training to reinforce the importance of equal employment opportunity and affirmative action. This type of training should be offered on a regular basis, but it doesn’t necessarily need to be offered annually.

For example, if the organization implements a three-day intensive non-discrimination training course for its employees, it could offer a two-hour online refresher course every year afterward. The goal is to show employees that the organization is prioritizing non-discrimination and committing to affirmative action.

4. Focus on the training content’s practical applications.
When it comes to training content, avoid simply copying the complicated text of the law or regulations and pasting it into the training materials. Doing so tends to leave people feeling vaguely like they just failed a law school course and do not have further understanding or enlightenment.

Employers should instead focus on the practical implications of the underlying laws and regulations. What do they mean for the employee in terms of their day-to-day responsibilities? Strip away the legalese and business jargon, as these tend to confuse rather than clarify. Instead, approach training thoughtfully despite the lack of meaningful guidance from the federal government.

Unfortunately, the federal government has provided little guidance in terms of non-discrimination training for federal contractors. However, by focusing on specific goals, employers and managers can implement non-discrimination training programs that work for their organization and inspire meaningful change.

    Matt Nusbaum is the director of the BCG Institute for Workforce Development (BCGi). Matt has more than nine years of experience as a practicing attorney and is one of the nation’s leading authorities on affirmative action. He consults federal contractor employers on affirmative action and nondiscrimination requirements enforced by the U.S. Department of Labor, and also those required by federal, state, and local enforcement agencies.

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