§ 11103. Nondiscrimination Program.

(a) Definition and Purpose. A nondiscrimination program (hereinafter referred to as “the program”) is a set of specific and result-oriented procedures to which a contractor or subcontractor commits itself for the purpose of insuring equal employment opportunity for all employees or applicants for employment. It may include an affirmative action component, which establishes goals and timetables to remedy any underutilization of minorities and/or women that is identified. The Program shall contain the following elements:

(1) Development or reaffirmation of the contractor's equal employment opportunity policy in all personnel actions.

(2) Formal internal and external dissemination of the contractor's policy.

(3) Establishment of responsibilities for implementation of the contractor's program.

(4) Annual identification of any existing practices that have resulted in disproportionately inhibiting the employment, promotion or retention of those protected by the Act.

(A) Analysis of Employment Selection Procedures. The program shall include an identification and analysis of contractor promotional and entry-level selection procedures and shall identify any such procedures that have resulted in disproportionately inhibiting the employment, promotion or retention of minorities or women. The retention of such practices so identified can only be justified according to the principles of business necessity upon a demonstration that no reasonable alternatives to such practices exist. The prospective contractor shall eliminate any practices that cannot be so justified.

(B) Workforce Analysis. The Program will contain a workforce analysis, which shall consist of a listing of each job title that appears in applicable collective bargaining agreements of payroll records ranked from the lowest paid to the highest paid within each department or other similar organizational unit, including departmental or unit supervisory personnel. For each job title, the total number of incumbents, and the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must be given: Blacks,

Hispanics, Asian/Pacific Islanders, and American Indian/Native Alaskans. The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles, must be listed. If there are separate work units or lines of progression within a department, a separate list must be provided for each such work unit, or line, including unit supervisors. For lines of progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line. Where there are no formal progression lines or usual promotional sequences, job titles should be listed by department, job families, or disciplines, in order of wage rates or salary ranges.

(C) Utilization Analysis. Employers with 250 or more employees must perform a utilization analysis, which shall consist of an analysis of the major job groups at the facility in order to determine whether women and minorities are being underutilized when compared to their availability. A job group for this purpose shall consist of one or more jobs that have similar content, wage rates and opportunities. Underutilization is defined as having a statistically significant lower utilization of minorities or women in a particular job group than their availability. Availability is defined as the availability in the labor force. The labor force for this purpose may vary depending upon the type of job in question, and the contractor's past practice, and could encompass the contractor's existing employees, the area immediately surrounding the facility where the vacancy exists for low-skill jobs or it could encompass the entire nation for highly-skilled managerial positions. The employer shall conduct a separate utilization analysis for each minority group and women.

(5) Development and execution of action oriented programs designed to correct problems and attain equal employment opportunities for all applicants and employees.

(6) Design and implementation of internal audit and reporting systems to measure the effectiveness of the total program.

(b) Employers who have identified a practice or practices that have an adverse impact on one or more groups protected by the Act, and that may unlawfully discriminate against members of such groups, may wish to include an affirmative action component in their nondiscrimination programs to minimize liability for discrimination, and correct past injustices; such affirmative action may be required of employers who are found to have discriminated in violation of the Act. Such a voluntary affirmative action component might contain, but need not be limited to, the following:

(1) Active support of local and national community action programs and community service programs designed to improve the employment opportunities of minorities and women;

(2) Providing training opportunities to minorities and women within the employer's organization that will qualify them for promotion when openings become available;

(3) Encouraging qualified women and minorities within the employer's organization to seek and accept transfers and promotions that increase their future opportunities;

(4) Actively recruit qualified minorities and women, even those not currently seeking such employment;

(5) Establishing and/or supporting training programs for entry level positions; and

(6) Establishing goals and objectives by organizational units and job groups, including timetables for completion. Establishment and implementation of a nondiscrimination program that contains an effective affirmative action component will create a rebuttable presumption that a contractor is in compliance with the requirements of Government Code section 12990 and its implementing regulations.

(c) An employer with multiple facilities may establish a single nondiscrimination program for its organization, but must perform separate analyses pursuant to subsections (a)(4)(A), (B), and (C) above for each establishment.

HISTORY

1. Change without regulatory effect renumbering former section 8104 to new section 11103 and amending section filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).

Note

Note: Authority cited: Sections 12935(a) and 12990(d), Government Code. Reference: Section 12990, Government Code.