Nondiscrimination/Equal Employment Opportunity Provisions
What types of discrimination are prohibited under the final rule?
The 1978 version of the regulations prohibited discrimination on the basis of race, color, religion, national origin, and sex. The final rule adds additional protected bases: disability, age (40 or older), sexual orientation, and genetic information to protected groups for nondiscrimination purposes. The final rule specifies that sponsors may not discriminate on these bases with respect to personnel actions, including recruitment, selection, placement, rates of pay, hours of work, and job assignments (§30.3).
Who is included in the groups protected from discrimination?
All apprentices and applicants for apprenticeship are protected against discrimination on the grounds listed in §30.3 of the apprenticeship EEO regulations. This means that no apprentice or applicant can be discriminated against because of their race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability. So, for example, both men and women, as well as people of all races and ethnicities, are protected from discrimination on these bases.
Are veterans considered a protected group? May a sponsor specifically seek them out or give them preference in hiring?
The apprenticeship EEO regulations do not prohibit discrimination on the basis of veteran status, nor do they require sponsors to take affirmative steps to foster equal employment opportunity for veterans.
A sponsor may specifically seek out veterans or give them preference in hiring as long as doing so does not discriminate on the basis of any of the protected characteristics. For example, a preference for veterans – who are more likely to be male than female – might have a disparate impact on women that is not job-related nor consistent with business necessity. Therefore, sponsors should proceed with caution in creating "veteran only" apprenticeship programs.
Will these regulations affect who I can hire?
Sponsors retain the ability to identify and select the best candidates for their programs, as long as those selections are free from unlawful discrimination. Sponsors must engage in outreach and recruitment activities that reach all groups of people, and ensure that their selection procedures are equitable, uniform and consistently applied. By taking these steps, sponsors reach new and more diverse talent pools that can improve the quality of their apprenticeship programs and help to ensure equal employment opportunity.
What position does this final rule take on whether gender identity is a form of sex discrimination?
As discussed in the preamble, per the language of relevant authorities and case law, gender identity has been analyzed as a form of sex discrimination. The final rule, and specifically the Equal Opportunity pledge at § 30.3(c), states that sex discrimination includes discrimination on the basis of gender identity (as well as discrimination on the basis of pregnancy). The Department will continue to monitor the developing law related to the issues raised by the commenters and will consider issuing further guidance on this subject as appropriate.
All the applicants for my apprenticeship program have always been men. How can I be expected to hire women for a position if they don't even apply?
OA certainly does not expect sponsors to hire women if they don't apply! But if a program has not historically received female applicants, the sponsor's outreach and recruitment practices may not be reaching qualified women who would be interested in applying. Accordingly, the EEO regulations require registered apprenticeship programs to take steps to ensure all qualified applicants have access to apprenticeship programs and are considered for program vacancies. Such steps include developing a list of recruitment resources that will generate referrals from diverse demographic groups and providing these sources with advance notice of job openings, so that they can notify and refer candidates. If underutilization of a certain group persists, sponsors may need to undertake more targeted outreach and recruitment efforts to ensure that they are drawing from a diverse pool of qualified applicants.
It is also important for sponsors to maintain a recordkeeping system that allows them to see the results of their recruitment efforts. In addition to ensuring compliance with the EEO regulations, such recordkeeping enables sponsors to determine whether their recruitment strategies are working.
Is it enough for a sponsor to add "age" to the list of protected characteristics in its EEO Pledge, apprenticeship application, and other literature, or must the information specify age 40 or older?
While the part 30 regulations (§30.3) only specifically prohibit age discrimination against those 40 and older, sponsors do not need to include the modifier "40 or older" in their materials referring to age discrimination if they choose not to. Sponsors should also be aware of applicable state and/or local age discrimination laws that may apply, as some such laws prohibit age discrimination against those who are younger than 40.
May apprenticeship programs give a hiring preference to under-represented populations (such as women or minorities) in their programs?
No, sponsors are not permitted to engage in preferential hiring based on race, sex, or any other protected category. Further, nothing in the regulations requires sponsors to select unqualified applicants, or to select a less qualified person in preference to a more qualified one. Indeed, doing so on the basis of a protected characteristic like race or sex would be unlawful under the regulations (§30.6).
Sponsors are required to engage in outreach and recruitment activities designed to reach all demographic groups within the relevant recruitment area and need to ensure that their programs offer equal employment opportunities to all apprentices and applicants. Further, sponsors required to maintain affirmative action programs (AAPs) may need to set race, sex, ethnicity, or disability utilization goals if they find that their programs are underutilized in any of these particular groups. However, these goals are not quotas; they do not provide a sponsor with justification to extend a preference to any individual on the basis of a protected characteristic, nor do they permit sponsors to create set-asides for specific under-represented groups. For example, the regulations make it clear that sponsors should not establish separate ranking lists based on protected characteristics.
Is ethnicity included as a protected characteristic?
Yes. The terms ethnicity and national origin both refer to the same protected characteristic.
May a sponsor give priority to qualified workers who have been waiting for openings in its programs?
Yes, a sponsor may give priority to qualified workers who have been waiting for openings in its program, as long as that selection procedure is applied uniformly and consistently and complies with the requirements for selection devices under the Uniform Guidelines on Employee Selection Procedures (§30.10).
On the other hand, nothing in the apprenticeship EEO regulations requires sponsors to give such priority. Historically, sponsors have periodically renewed their apprenticeship lists, regardless of how many previous applicants were waiting for openings. A sponsor may diversify its pool of applicants without automatically dismissing those who previously applied for an apprenticeship, thus widening the qualified applicant pool from which new apprentices are selected.
In addition to the nondiscrimination obligations, what other equal employment opportunity measures are all sponsors, regardless of size, required to take? How is this different from the previous regulations?
The previous version of the EEO regulations required sponsors with an AAP to take "a significant number" of activities from a list of ten different outreach and recruitment activities. The final rule provides greater clarity relating to every sponsor's general duty to engage in affirmative action by requiring four specific, straightforward actions OA believes are most important to ensure EEO. These are: (1) designating one or more individuals as responsible for overseeing its EEO obligations; (2) disseminating internally its equal opportunity policy; (3) undertaking general outreach and recruitment; and (4) taking steps designed to ensure that apprenticeship programs operated free from harassment, intimidation, and retaliation (§30.3).
To what extent is a sponsor responsible for the actions of a participating employer?
As under the previous regulations, regardless of the model of sponsorship, the sponsor is ultimately responsible for ensuring that the apprenticeship program complies with the EEO and affirmative action obligations of this final rule. When the sponsor is the direct employer of the apprentices and controls, or otherwise has input into, employment actions held unlawful by these regulations, it must ensure that these actions comply with the EEO obligations of the final rule. Where discriminatory actions or other actions in violation of this part are taken by employers participating in the sponsor's program, the sponsor has an obligation to undertake steps to address the violation when it has knowledge of such actions.
What recruitment sources can the sponsor utilize to meet its outreach and recruitment requirements?
Under the final rule, sponsors must develop and update annually a list of current recruitment sources that will generate referrals from all demographic groups within the relevant recruitment area. Examples of relevant recruitment sources include: the public workforce system's American Job Centers and local workforce development boards; community-based organizations; community colleges; vocational, career and technical schools; pre-apprenticeship programs; and federally-funded, youth job training programs such as YouthBuild and Job Corps or their successors. OA will make available additional resources to help sponsors expand outreach and recruitment efforts.
If the sources that a sponsor is using to meet its outreach and recruitment obligation are not generating referrals from the various demographic groups in the sponsor's recruitment area, what should the sponsor do?
OA would expect that the sponsor would seek in good faith alternative or additional sources that are more effective at referring diverse qualified applicants. OA has provided information and online resources to sponsors regarding recruitment sources. During compliance reviews, sponsors would only be expected to describe their good faith efforts to recruit diverse apprentices.
Who within the apprenticeship program must receive anti-harassment training? What topics must this training include?
All individuals connected with the administration or operation of a sponsor's apprenticeship program must receive this training, including all apprentices and journeyworkers who regularly work with apprentices. These sessions must involve active participation by trainees and must include communications to apprentices and journeyworkers that harassing conduct will not be tolerated, the definition of harassment and types of conduct that constitute harassment, and the right to file a harassment complaint. The final rule specifies that the training is not a passive transmittal of information. Ready-to-use training materials can be found on the apprenticeship EEO website.
Note that more questions and answers on anti-harassment training can be found on the apprenticeship EEO website.
What are sponsors' and employers' responsibilities regarding harassing, intimidating, or retaliatory conduct towards apprentices?
A sponsor must develop and implement procedures to ensure that its apprentices are not harassed because of their race, color, religion, national origin, sex (including pregnancy and gender identity), sexual orientation, age (40 or older), genetic information, or disability, and to ensure that its apprenticeship program is free from intimidation and retaliation as prohibited by §30.17. In those situations where discriminatory actions or other actions in violation of this part are taken by employers participating in the sponsor's program, the sponsor has an obligation to undertake steps to address the violation when it has knowledge of such actions.
- General Questions
- Nondiscrimination/Equal Employment Opportunity Provisions
- Complaint Information
- Affirmative Action Program Requirements
- Sponsor Workforce and Utilization Analyses
- Targeted Outreach, Recruitment, Selection and Retention
- Affirmative Action Requirements Related to Individuals with Disabilities