Non-Discrimination Obligations of Government Contractors in the Construction Trade

Obligations of Government Contractors under the Law

The Equal Opportunity Clause mandates government contractors under federal or public works contract that exceed $10,000 to hold no discrimination against a prevailing wage worker or an applicant for employment because of race, color, religion, sex, sexual orientation, gender identity or national origin.

This obligation of government contractors includes disparate treatment and disparate impact.

Disparate Treatment of Prevailing Wage Workers and Disparate Impact

Both disparate treatment and disparate impact are forms of unlawful discrimination to prevailing wage workers. Disparate treatment occurs when the government contractor intentionally treats a worker or group differently, due to any of the following:

  • Color
  • Race
  • Religion
  • Sexual orientation
  • Sex
  • Gender identity
  • Nationality
  • Physical disability

One example of disparate treatment is giving “colored” people only the lower paid jobs because they are not white.

Disparate impact on the other hand, occurs when a government contractor applies a selection policy through a test or certification requirement, or a selection procedure for a job, which disqualifies applicants because of their race or sex. It does not have to be intentional to be considered as unlawful discrimination.

Participation Goals of Government Contractors for Minorities and Women

Non-discrimination regulations set a goal for the number of minorities and women to be hired at each trade in your workforce. Meeting this requirement however, does not exempt you from assessing your company practices for possible discrimination of your prevailing wage workers. The Office of Federal Contract Compliance Programs (OFCCP) will still examine how each worker group is individually affected by your company’s practices.

The goals set, however, are not quotas. If you do not meet them, no sanctions will be imposed. Compliance is measured if you have made good faith efforts to broaden and expand employment opportunities, to include minorities and women.

Use of Tests and Examinations in the Hiring Process for Prevailing Wage Jobs

You can use tests and examinations to properly screen applicants. However, you must ensure that these selection procedures that you use do not have adverse impact to applicants in a particular race, sex, or ethnic group. The selection procedure must be validated to ensure that it is designed to measure job-related qualifications, and is consistent with business requirements.

Harassment of Prevailing Wage Workers

Harassing your prevailing wage workers, such as giving of offensive comments, because of their sex or race can be considered as unlawful discrimination. It does not have to be sexual in nature to be considered as harassment.

As a contractor, it is your duty that your foremen and superintendents are aware of your shared responsibility to ensure a healthy working environment that has no discrimination, harassment, intimidation, and coercion.

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