Too many people view the AAP "project" as a "one-and-done" exercise in which data is pulled, "cleaned," and run through some sort of machine to produce AAP reports and analyses and... that's it. On to the next HR project.

Trouble is, the OFCCP views completing your AAPs as just getting to the starting line. Yes, in an audit they will look to tick every technical compliance box, making sure that posters are up and that the Job Group Analysis is properly "annotated," etc. But once they dispense with confirming that all of your "to-dos" got to "done," they largely turn to examining what is colloquially referred to as your "good faith efforts."

Good faith effort is really the beating heart of your AAP, so documenting these efforts is critical. Without document evidence that they were implemented, the OFCCP will assume you are treating it as a "paperwork exercise."

There is no official definition of good faith efforts in the OFCCP's regulations; it is not a "defined term." But it has been used by both the OFCCP and the federal contracting community to refer broadly to any effort a federal contractor employer makes to ensure non-discrimination.

By that definition, the AAP itself can be a good faith effort. But a close examination of the OFCCP's regulations, guidance, and practices over the years confirms what common sense is telling you: there is a difference between "effort" and "good faith effort," and that difference is probably important.

The OFCCP sees a lot of "effort" documented in the AAPs they review in audits. And you might be surprised to learn how often they discover those "efforts" are just on paper and not really happening at all. Another common complaint from the agency involves "efforts" that don't seem designed to impact equal employment opportunity at all.

That's why the OFCCP's regulations specify "good faith" efforts. What they are signaling is that any effort you are trying to take credit for in your AAP must be one that a reasonable person could assume would "move the needle" or "even the playing field."

The regulations implementing Executive Order 11246 mention good faith efforts a total of four times.*

The first mention comes in the record retention requirements at 41 C.F.R. § 60-1.12(b) (external link):

"A contractor establishment required under § 60–1.40 to develop and maintain a written affirmative action program (AAP) must maintain its current AAP and documentation of good faith effort, and must preserve its AAP and documentation of good faith effort for the immediately preceding AAP year, unless it was not then covered by the AAP requirement." (emphasis added)

This confirms that the OFCCP views the AAP in two "parts." First is the existence of the AAP itself and the extent to which it meets all the technical requirements. The second part is documentation of efforts engaged in as a result of the AAP. The AAP is merely a tool to point contractor employers in the right direction by indicating where there are likely to be EEO issues. What the contractor does in response to those indicators constitutes their "good faith efforts."

The next mention comes in the description of "placement goals" at 41 C.F.R. § 60-2.16(a) (external link):

"Purpose: Placement goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity."

Here they introduce a legal distinction. The regulations are quite clear that placement goals are not quotas, and contractors are not allowed to violate Title VII in their efforts to "achieve" these "goals." So good faith efforts are not just the things an organization does to ensure non-discrimination, but all of the legal things they do for that purpose.

The next mention comes in the very next section in the definition of "action-oriented programs" at 41 C.F.R. § 60-2.17 (external link):

"The contractor must develop and execute action-oriented programs designed to correct any problem areas identified pursuant to § 60–2.17(b) and to attain established goals and objectives. In order for these action-oriented programs to be effective, the contractor must ensure that they consist of more than following the same procedures which have previously produced inadequate results. Furthermore, a contractor must demonstrate that it has made good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results."

Here, the "good faith" is on full display. Your "action-oriented programs," or "action plans," are expected to have some "action" described in them. And those actions must be designed to remove any identified "barriers," expand employment opportunities, and produce measurable results. They may not end up doing any of those things, but if they were reasonably designed to do so and implemented fully and in "good faith," then the OFCCP has no ground to stand on for writing up a violation if the efforts failed to "move the needle." Moving the needle is not actually the point of the exercise. Creating an environment in which the needle is free to move to where it needs to be naturally, without intervention, is your goal (and actually a much harder job).

And don't ignore the admonishment to do something more than whatever lead to unsatisfactory results in the past. That's a nod to organizations that act like hanging a non-discrimination policy in the breakroom should be enough. If your workforce responds to the policy by actively policing their behavior and stamping out discrimination, then yes, that was a "good faith effort" and it was enough to get the job done. But that is unlikely to be the case. When and if the posted policy is not enough to fix all potential issues, the employer is expected to wade back in and try to find things that do have an impact.

Finally, the last mention comes in the second-to-last section under "Miscellaneous." Specifically, the OFCCP's discussion of "compliance status" at 41 C.F.R. § 60-2.35 (external link):

"No contractor's compliance status will be judged alone by whether it reaches its goals. The composition of the contractor's workforce (i.e., the employment of minorities or women at a percentage rate below, or above, the goal level) does not, by itself, serve as a basis to impose any of the sanctions authorized by Executive Order 11246 and the regulations in this chapter. Each contractor's compliance with its affirmative action obligations will be determined by reviewing the nature and extent of the contractor's good faith affirmative action activities as required under § 60–2.17, and the appropriateness of those activities to identified equal employment opportunity problems. Each contractor's compliance with its nondiscrimination obligations will be determined by analysis of statistical data and other non-statistical information which would indicate whether employees and applicants are being treated without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin." (emphasis added).

Despite the clear language in their regulations, the OFCCP does not, in fact, recognize when contractors are "compliant." If an audit ends with no findings of violations, the agency sends a closure letter stating that no violations were found, not that the company was found to be "compliant" or "in compliance" with the OFCCP's regulations.

But this is how they are supposed to judge your overall compliance and decide whether or not any minor violations are worth going after. And this is the section of the regulations they will cite if the organization responds to placement goals set for specific jobs with broad, general efforts. It's great that the organization pays to have it's Careers page "scraped" and job postings listed with every diversity organization in the country, and they should absolutely get credit for that effort. But not when it comes to addressing the suspicious difference in demographics they are observing at the AAP Job Group level. The general effort does not "count" for a specific placement goal because "good faith efforts" are supposed to be designed to specifically address particular issues identified in the AAP.

* Note that a key word search of the regulations at 41 C.F.R. §§ 60-1 and 60-2 (external links) will yield five results in four different sections. The fact that they use the term twice in the same section does not constitute two "mentions."

Over the years, the federal contracting community collectively fell into a bit of a rut when it comes to their AAPs. Typically, when an organization is required to set a placement goal, and therefore develop and implement an "action-oriented program," the default has become to simply vow to increase targeted outreach and recruiting efforts for the affected group(s). And that may be a perfectly reasonable response, just probably not in every case.

Good faith efforts are more than just your outreach and recruiting, and outreach may not be the appropriate response, depending on the circumstances.

What the OFCCP is really looking for is the reasoning behind your efforts, not just a description of the efforts themselves. Sometimes the reasoning will be obvious, but explaining your reasoning anyway goes a long way toward showing the OFCCP a healthy compliance posture.

If your good faith effort is to increase targeted outreach and recruiting, briefly explain why. Perhaps you observed that the affected group is not represented in your applicant flow at levels you would expect given availability. The chosen effort then becomes obvious to the OFCCP. But if it turns out from your utilization reports that you fill the jobs in question largely from internal candidates rather than external hires, then your outreach efforts start to look like straw.

Outreach and recruiting can still be a valid starting point when the "problem" (if there is one) is not so clear. If so, it is perfectly fine to admit that your action plan is essentially an investigation using the process of elimination and you're starting with outreach.

The process of investigating what might be driving your placement goals can be, in and of itself, a good faith effort, provided that you are engaged in that investigation in "good faith," of course.

But if you don't hire externally much for the job or jobs in question, or your applicant pipeline demographics look fine, your good faith efforts might need to be aimed internally, so consider "inreach" efforts for your action plan.

Anything can be a good faith effort so long as you are able to explain to the OFCCP how it can reasonably be expected to advance the cause of equal employment opportunity, so don't be afraid to "think outside the box." Just don't leave it up to the OFCCP to decipher--explain it to them!

The OFCCP's disability and veteran regulations explicitly require contractors to both document and evaluate good faith efforts. But the regulations implementing Executive Order 11246 only require documentation.

If your lawyer responds to that "gap" by excitedly informing you that you can forgo evaluating your efforts for sex and race, you need to find a better lawyer.

You will document your good faith efforts in your action plans for sex and race ethnicity, and the OFCCP can use that to confirm that you are meeting the requirement to set placement goals and respond with an action plan. The evaluations of your disability and veteran efforts allow the OFCCP to confirm that you not only developed an action plan, but actually implemented it. So while an evaluation of sex and race efforts is not technically required, it becomes a practical requirement unless you can come up with another way to demonstrate that the words on the page resulted in real-world action.

Documenting, tracking, and evaluating good faith efforts is critical not only for the success of the AAP, but for success in an OFCCP audit.

The problem for Compliance professionals is that often the responsibility for following the action plans they develop falls to others outside the Compliance function, often scattered to the wind throughout the organization in varying functions. Talent Acquisition tends to be a major player, but many others can be involved.

The OFCCP focuses on documentation and evaluation, but someone should be tracking your good faith efforts to ensure their implementation.

"Centralization" can be extremely helpful here. Providing your people with one place to go to document their compliance efforts will go a long way toward participation. This can be as simple as a spreadsheet file with shared access, or a more robust "platform" solution, like the Biddle Consulting Group's Good Faith Effort Tracker.