OFCCP issues guidance for higher ed

Academic institutions will appreciate this.

The Office of Federal Contract Compliance Programs has issued its much-awaited Technical Assistance Guidance for Educational Institutions. In publishing these materials, the OFCCP recognizes that academic institutions differ significantly from the typical supply and service contractor. Educational institutions “present unique challenges[,] not only due to their numerous methods of governance, various organizational structures, and multiple workforces[,] but also because they involve elements that can be difficult to quantify.” The agency notes that these factors make it “difficult to objectively measure” selection decisions and compensation practices at educational institutions. 

The Guidance provides an overview of the laws enforced by the OFCCP and technical aspects of compliance, and it outlines what academic institutions should expect during an OFCCP compliance evaluation. The OFCCP also reiterates its prior Directive on student workers and FAQs regarding how campuses may be structured for establishment-based affirmative action plans

The Guidance is lengthy and detailed, but here are a few of the highlights:

Job groups

Structuring of job groups is critical because AAP analyses are based on job group. The Guidance notes,

[J]ob groups must reflect certain distinctions that are crucial for meaningful analysis. For example, the distinction between tenured, tenure-track, and non-tenured instructional staff and among organizational units may be important because appointments at the tenured/tenured-track level might draw from different applicant populations than do appointments at the non-tenured level. Also the availability of women and minorities may vary greatly from one academic specialty area to another.

The Guidance provides examples of potential job group structures that organizations can consider adopting. 

For non-instructional staff, the OFCCP suggests a variety of ways to form job groups, such as using the IPEDS (Integrated Postsecondary Education Data System), EEO-1, or EEO-6 categories. 

Placement goals

The OFCCP's regulations provide that contractors must generally set goals for minorities as one group where their representation is less than one would reasonably expect. Only where there is a “substantial disparity” in the representation of a particular minority group are goals required to be set for specific minority groups. However, the OFCCP states that it is a “best practice” for institutions of higher learning to “set disaggregated placement goals for job groups when specific minority groups are underutilized.” 


Colleges and universities face significant challenges when it comes to tracking applicants due to the various methods of recruiting and selecting candidates for their many different types of positions. Unfortunately, the Guidance provides very little insight in this area and states only that institutions “should address these [issues] in its AAP” and “be prepared to discuss them with OFCCP.”


Evaluating compensation at an educational institution is complex due to the wide variety of compensation schemes and mechanisms. For tenure-track positions, the OFCCP suggests using a linear regression analysis that takes productivity variables into account. 


The Guidance recognizes that tenure promotions are categorically different from promotions for non-tenure-track and non-instructional positions. When evaluating promotions of tenure-track instructional staff, the OFCCP says that it will initially review tenure and rank requirements for the specific institution. 

Analyses of promotions surrounding tenure will include both broad and detailed information provided by the educational institution. For instance, OFCCP will identify the process by which the contractor composes the departmental committees responsible for granting tenure and may obtain the historical data of the position.

Questions that the OFCCP may ask in assessing the promotions process for instructional staff include the following:

  • What are the institution’s promotion process guidelines?
  • Who decides who is placed on tenure track and how?
  • What is the composition of boards, tenure committees, or other bodies that determine promotions?
  • What are the tenure requirements process, criteria, and timelines?
  • Does the process vary by school, college, or department?
  • Are the different ranks funded differently?
  • What are the criteria for obtaining a tenure-track appointment?
  • How many of the tenure-track candidates reach full tenure?
  • Do performance appraisals affect promotions?

What should higher ed contractors do next?

Read it! The OFCCP’s Technical Assistance Guidance provides a meaningful way for institutions of higher education to assess their compliance efforts and to develop appropriate plans for preparing for the next OFCCP compliance evaluation. At the very least, it provides some certainty regarding the OFCCP’s expectations and processes for evaluating the complicated employment processes in the academic environment. 


Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations.  With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals.  Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes.  Subscribe to both to stay current on these important topics!


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