CRS Report for Congress: Federal Protection of Equal Employment Opportunity for Racial and Ethnic Minorities and for Women in the Private Sector

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18 Pages

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s-leg_553_002_002

Title (Dublin Core)

CRS Report for Congress: Federal Protection of Equal Employment Opportunity for Racial and Ethnic Minorities and for Women in the Private Sector

Description (Dublin Core)

This report identifies potential causes and remedies for racial and gender-based discrimination in the workforce

Date (Dublin Core)

1987-02-12

Date Created (Dublin Core)

1987-02-12

Congress (Dublin Core)

100th (1987-1989)

Topics (Dublin Core)

See all items with this valueAffirmative action programs

See all items with this valueContract labor

See all items with this valueDiscrimination in employment

See all items with this valueMinorities--Employment

See all items with this valueWomen--Employment--United States

Policy Area (Curation)

Civil Rights and Liberties, Minority Issues

Creator (Dublin Core)

Downing, Paul M.

Record Type (Dublin Core)

report

Names (Dublin Core)

See all items with this valueCRS report for Congress

See all items with this valueUnited States. Civil Rights Act of 1964

See all items with this valueUnited States. Equal Employment Opportunity Commission. Office of Compliance Programs

See all items with this valueUnited States. Office of Federal Contract Compliance Programs

Location representation (Dublin Core)

District of Columbia (national district)

Rights (Dublin Core)

http://rightsstatements.org/vocab/CNE/1.0/

Language (Dublin Core)

eng

Collection Finding Aid (Dublin Core)

https://dolearchivecollections.ku.edu/index.php?p=collections/findingaid&id=23&q=

Physical Location (Dublin Core)

Collection 003, Box 553, Folder 2

Institution (Dublin Core)

Robert J. Dole Institute of Politics, University of Kansas, Lawrence, KS

Archival Collection (Dublin Core)

Robert J. Dole Senate Papers-Legislative Relations, 1969-1996

Full Text (Extract Text)

Congressional Research Service
The Library of Congress
Washington, DC 20540
FEDERAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY FOR RACIAL AND ETHNIC MINORITIES AND FOR WOMEN IN THE PRIVATE SECTOR

Paul M. Downing
Specialist in American National Government
Government Division
February 17, 1983
Revised February 12, 1987

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CONTENTS
WAYS IN WHICH THE FEDERAL GOVERNMENT SEEKS TO GUARANTEE EQUAL EMPLOYMENT OPPORTUNITY.................................1

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.....................................4
Enforcement......................................4
Pattern-or—Practice Cases................................7
EEOC and Affirmative ACCION..............................8

EXECUTIVE ORDER 11246..............................8
Affirmative Action Requirements for Nonconstruction Contractors..............9
Affirmative Action Requirements for Construction Contractors.................11
Enforcement of Executive Order 11246.........................................14
Numbers of Contractors and Employees Covered by Executive Order 11246................................16

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FEDERAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY FOR RACIAL AND ETHNIC MINORITIES AND FOR WOMEN IN THE PRIVATE SECTOR
WAYS IN WHICH THE FEDERAL GOVERNMENT SEEKS TO GUARANTEE EQUAL EMPLOYMENT OPPORTUNITY
Equal employment opportunity means that no individual is denied a job, or training, or the chance to be upgraded in an employer's workforce because that individual belongs to a certain racial or ethnic minority group or because she is a woman. To be denied such employment opportunity because of one's race, national origin, or sex is to suffer employment discrimination.

There are two ways in which the Federal Government seeks to ensure that individuals have equal employment opportunity.

The first way is by enforcing laws that prohibit discrimination by employers and by others who are in a position to discriminate. Such laws forbid not only overt discrimination, such as refusal to hire an applicant because he or she is, for example, black or Hispanic, or female, or segregation of the workforce so that minority individuals or women are channelled into lower paid, dead-end jobs while whites or males are placed on career ladders leading to training and upgrading. Equal employment opportunity laws also forbid subtle types of discrimination by means of practices that are neutral on their face but are meant to effect discrimination. An example of this type of discrimination would be a test for selecting applicants for hiring, or employees for training, that is given both to minority and non-minority applicants for the purpose, not of testing job-related abilities, but of screening out minority or female test-takers.

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The second way in which the Federal Government aims to promote equal employment opportunity is by requiring that many employers undertake special measures to recruit, hire, train and upgrade minority and women workers. Such special measures are called "affirmative action."

Affirmative action is undertaken for either or both of two reasons.

The first reason is to overcome the consequences of past discrimination. As a result of past discrimination, minority persons or women may be deprived of training and work experience and thereby rendered not competitive with others. Affirmative action programs must be designed to help them become so.

The second reason for affirmative action is to eliminate present employment practices that constitute barriers to equal opportunity. An example of such a practice would be seeking applicants only in places where white or male applicants are to be found. An affirmative action program would oblige an employers to make special efforts to seek minority applicants in places where they are to be found, for example, in schools and colleges with heavy black or Hispanic enrollments.

The Federal Government implements its policy or ensuring equal employment opportunity primarily through a statute, Title VII of the Civil Rights Act of 1964, and an executive order, Executive Order 11246.

Title VII is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), whose primary mission is dealing with complaints and obtaining remedies for individuals and classes of individuals who have suffered discrimination.

Executive Order 11246 is implemented by the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor, whose primary mission is to ensure that Federal contractors take affirmative action to promote equal employment opportunity.

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Equal employment opportunity is also required under other statutes mandating nondiscrimination in programs of Federal financial assistance.

Title VI of the Civil Rights Act of 1964 prohibits discrimination by recipients of Federal funds, e.g., hospitals, public schools, State employment services, against the beneficiaries of programs operated with the assistance of such funds. Although Title VI is intended to protect program beneficiaries rather than employees or job applicants of recipients, Federal granting agencies oblige recipients to practice nondiscrimination with respect to their own workers as a means of ensuring that beneficiaries are granted equal access to program benefits. 1/

Nondiscrimination provisions similar to those of Title VI have been written into many specific programs of Federal assistance, including revenue sharing, and equal employment opportunity practices are obligatory for recipients under these programs both because of the program statute and because of Title VI.

Federal agencies that grant funds for programs are responsible for nondiscrimination in those programs, and they may enforce this obligation by withholding Federal funds. But they are authorized to refer any complaints of employment discrimination against an individual to EEOC. 2/

Finally, Congress, by the Civil Rights Act of 1957, created the U.S. Commission on Civil Rights to study and report on violations of the equal protection of the laws. One of the duties of the Commission is to study what the Federal Government is doing to eliminate discrimination because of race, color, religion, sex or national origin. In response to this mandate, the

1/ 28 Code of Federal Regulations 42.402(f£), 42.406(b)(3).
2/ 28 CFR 42.605(b).

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Commission has published reports on efforts by the Federal Government to enforce equal employment opportunity. One of its publications is its November 1981 report, Affirmative Action in the 1980s: Dismantling the Process of Discrimination.

The balance of this report will concentrate on implementation of what were noted above as the two primary, legal requirements for equal employment opportunity, Title VII and Executive Order 11246.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 as amended in 1972 forbids discrimination against any individual in employment decisions or practices because of that individual's race, color, religion, sex, or national origin. Title VII covers the entire range of employment practices: hiring, pay, opportunity for training, promotion. Most generally, it forbids any employment practice that

... would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 3/

Title VII applies to employers with 15 or more employees, to labor unions, and to employment agencies. It also covers public employers, Federal, State, and local. This report, however, deals only with employment practices in the private sector.

Enforcement
Congress created the Equal Employment Opportunity Commission (EEOC) to enforce the provisions of Title VII. The mission of EEOC is to receive, investigate and resolve complaints of discrimination.

3/ Sec. 703(a)(2).

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All complaints of discrimination filed with the Commission must charge discrimination against an individual. Some complaints, however, may suggest that the discrimination cited is not limited in ite effect to an individual, but extends to an entire class of individuals, for example, to blacks, or Hispanics, or women in a particular department of the employing company, or in the company's entire workforce. Early in the process of dealing with complaints, EEOC notes those with "class implications," that is, those that indicate that discrimination extends beyond the individual complainant, and later in the process it may expand an individual charge into a clase complaint, or group together individual charges against the same employer into a class complaint. As a matter of terminology, however, a class complaint cannot become what is called a "class action" until the case reaches the stage of litigation in court. As the result of a class complaint or a class action, an employer may be compelled to do justice to an entire class of individuals, some of whom may not have filed a complaint, instead of only to particular individuals who did file complaints.

Title VII requires that EEOC defer complaints to State and local fair employment practice (FEP) agencies when the complaint comes from a jurisdication having an FEP agency. EEOC enters into deferral contracts with such FEP agencies only after it has made sure that the FEP agency is effective in combating discrimination. 4/

Most of the steps in EEOC's charge processing are mandated by its statute. 5/ The Commission itself, however, has introduced a new way of attempting swift resolution of charges, the Rapid Charge Processing System. 6/ Under this method,

4/ 29 CFR 1601.70.
5/ Enforcement procedures are mandated in Sec. 706.
6/ 29 CFR 1601.20.

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EEOC asks the complainant and respondent (the employer or other entity charged with discrimination) shortly after a charge is received to sit down together with an EEOC staff member for a face-to-face, fact-finding conference. The aim of such a conference is to attempt to settle the charge by negotiation. Such a settlement involves no Commission judgment as to whether the complaint has merit. In fiscal year 1981, 43 percent of charges were settled in this way.

If there is no rapid settlement, EEOC will investigate the complaint and decide whether there is “reasonable cause to believe that the charge is true." 7/

If the Commission finds that there is not reasonable cause to believe that the charge is true, it will dismiss the complaint and notify the complainant that he has the right under Title VII to bring his case to the appropriate U.S. district court.

If EEOC determines that there is reasonable cause to believe that the charge is true, it will try to resolve it by "informal methods of conference, conciliation, persuasion." 8/ Through conciliation, the Commission tries to remedy the discrimination by eliciting from the respondent--the party against whom the complaint has been filed-~-an agreement to eliminate the discriminatory practice and to do justice to the complainant. Doing justice to the complainant could involve hiring or promoting him or her, and may involve payment to the complainant of back pay as compensation for pay lost as a result of discrimination. Title VII authorizes the award of back pay for up to two years prior to the date of filing a charge with the Commission.

If EEOC cannot obtain a conciliation agreement with the respondent acceptable to the Commission, it may bring suit against the respondent in a Federal district court. If the court finds that the employer, labor union, or employment agency

7/ Sec. 706(b).
8/ Ibid.

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has discriminated against the complainant or class of complainants, it may order the respondent to cease discriminating, to hire, or to reinstate each complainant, or to grant each complainant whatever other opportunity he or she was wrongfully denied, and to compensate each complainant with back pay.

Pattern-or-Practice Cases
In addition to receiving and resolving complaints from individuals who have suffered discrimination, EEOC may itself--by one of its commissioners—-file a charge against an employer or other entity subject to Title VII. It may do so if it believes that the employer has practiced discrimination not only against this or that individual but against all individuals of a class protected by Title VII by means of a "pattern or practice" of discrimination. A pattern or practice of discrimination means that, in some way, discrimination is built into the employer's personnel system, that such discrimination is "systemic." An example of systemic discrimination would be segregation by race or ethnic origin or sex of job classifications--having "black" or "Hispanic jobs," or "women's jobs."

EEOC charges of systemic discrimination are dealt with by the same procedures--including suit in court--as are other complaints received from complainants. 9/

EEOC and Affirmative Action
While Title VII prohibits employers and others subject to it from discriminating against individuals or classes of individuals, it does not require them to develop plans of affirmative action, unless they are obliged to do so under a conciliation agreement or court order. Nevertheless, EEOC urges employers

9/ Systemic charges are authorized by Sec. 707.

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to elaborate and to carry out affirmative action plans as a means of promoting equal employment opportunity and thereby of precluding liability to suit under Title VII. In 1979, the Commission published its guidelines, "Affirmative Action Appropriate under Title VII of the Civil Rights Act of 1964, as Amended." 10/ EEOC defines affirmative action as follows: "Affirmative action . . . means those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunitiy." 11/

In its guidelines on affirmative action and in other publications, EEOC advises employers about ways to increase minority participation in the workforce, such as special recruiting, redesign of jobs so that individuals can learn to do higher level work, and training programs. 12/

EXECUTIVE ORDER 11246
Executive Order 11246, promulgated in 1965, requires equal employment opportunity on the part of Federal contractors.

The Executive Order covers Federal construction and nonconstruction contractors and their subcontractors. It also covers federally assisted construction contractors and their subcontractors. A federally assisted construction contractor is a contractor who does construction work for an entity that is a recipient of Federal financial assistance and who pays for the construction work with the aid of Federal funds.

The Executive Order requires that all such contractors obligate themselves by contract not to discriminate in employment against job applicants or employees

10/ 29 CFR 1608.
1l/ Ibid.
12/ 29 CFR 1608.4(c)(1).

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because of their race, color, religion, sex or national origin, and to undertake affirmative action to promote equal employment opportunity.

The Secretary of Labor is responsible for enforcing the Executive Order; the Secretary has vested this responsibility in the Office of Federal Contract Compliance Programs (OFCCP), which is part of the Employment Standards Administration.

Affirmative Action Requirements for Nonconstruction Contractors
OFCCP requires nonconstruction contractors and subcontractors with a contract of $50,000 or more and with 50 or more employees to develop written affirmative action plans. The plan must cover all of their offices and plants, whether or not they are working on a Federal contract or subcontract. 13/ OFCCP defines an affirmative action plan as "a set of specific and result-oriented procedures" designed "to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his [the contractor's] workforce where deficiencies exist." 14/

The notion of "utilization" is the key to understanding the aim of affirmative action. OFCCP recognizes that there are in any area labor force, among people who are working or looking for work, minority and women workers either with developed knowledge, skills and abilities needed by industry, or with aptitude to acquire job qualifications through training, but whose qualifications remain unused, or underused, or whose potentialities remain latent as a result of past or present discrimination. The aim of affirmative action, according to OFCCP, is to search for these unused abilities and aptitudes and to hire, train and upgrade minority and women workers who possess then.

13/ 41 CFR 60-2.
14/ 41 CFR 60-2.10.

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Pursuant to this aim, OFCCP obliges contractors to perform a "utilization analysis." 15/ A utilization analysis compares two things. It compares the availability of qualified and qualifiable minority and women workers both in the labor area and in the contractor's workforce with the numbers of minority and women workers employed in each "job group” in the contractor's workforce. A "Job group" is a group of jobs that are similar in types of work, in pay, and in opportunities for advancement. The purpose of the comparison is to discover "underutilization," which OFCCP defines as "having fewer minorities or women in a particular job group than would be expected by their availability." 16/ A contractor may find that there are higher proportions of qualified minority or women workers in the labor area than he employs in job groups corresponding to their specific skills. He may find that he has minority and women workers in his own workforce who are doing work that does not fully utilize their abilities.

For job groups in which there is such underutilization, the contractor is required to set employment "goals". A "goal" is the number of minority or women workers who would be in a job group, or the percentages of all workers in a job group who would be minorities or women, if available minority and women workers were fully utilized. And for each goal, the contractor is to set a timetable for its attainment. 17/

The goal for any job group in which minority workers are underutilized is to be a single goal for persons of all minority groups taken together, and for women. 18/ OFCCP designated as minority groups the following: blacks, Hispanics, American Indians and Alaskan Natives, and Asians and Pacific Islanders. 19/

15/ 41 CFR 60-2.11
16/ 41 CFR 60-2.11(b).
17/ 41 CFR 60-2.12.
18/ 41 CFR 60-2.12(h).
19/ 41 CFR 60-2.11(a).

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OFCCP, however, will not permit employment of members of one or some minority groups to the exclusion of members of other minority groups, and, if any minority group appears to be substantially underutilized, OFCCP may require a separate goal for that minority group. 20/

A goal is meant to be at once a target to aim at, and a measure of accomplishment. It is not to be attained by direct, quota hiring, but by means of carrying out all of the specific steps of an affirmative action program. 21/

OFCCP specifies many of the steps that must be included in the contractor's affirmative action program, and by means of which the contractor is to make good-faith efforts to attain his goals. 22/

Among the most important steps that a contractor is expected to take are: to elicit job applications through minority and women's organizations that refer applicants for employment; to recruit at schools and colleges with sizeable minority or female enrollments; to provide training, if possible; and to support vocational training programs in the community and in schools.

Affirmative Action Requirements for Construction Contractors
Federal and federally assisted construction contractors and their construction subcontractors with a contract of more than $10,000 must comply with OFCCP affirmative action requirements for the construction industry. Such requirements cover all of a contractor's construction projects, whether or not they are Federal or federaly assisted. 23/

20/ 41 CFR 60-2.12(k)(1).
21/ 41 CFR 2.12(a).
22/ 41 CFR 60-2.20-2.26.
23/ 41 CFR 60-4.1.

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Whereas nonconstruction contractors are obligated to perform their own utilization analyses and to set their own employment goals and timetables, OFCCP itself establishes goals for construction contractors. 24/ It does so in the following way.

OFCCP has divided the country into urban areas--standard metropolitan statistical areas (SMSA‘s) and nonurban areas~-so-called "economic areas" (EA's), comprising a county or a group of counties.

For all construction projects within each SMSA or EA, OFCCP has set the same goal for minority participation in each construction trade. The single goal for every trade is a percentage equal to the percentage that minority workers comprise in the experienced civilian labor force (everyone 16 years old or over who is working or looking for work and who has ever worked before) in that SMSA or EA. 25/

For example, if black, Hispanic, American Indian and Asian-American workers comprise 10 percent of the civilian labor force in an SMSA, the minority goal for each construction trade--asbestos workers, carpenters, lathers, roofers, sheetmetal workers and other trades is 10 percent.

Some construction contractors have objected that setting goals for construction trades on the basis of the minority percentage in the civilian labor force is unrealistic, because people are counted in the civilian labor force regardless of their specific job qualifications, whereas construction trade work requires considerable training. These contractors pointed out that there may not be enough trained minority craftsmen available to meet such goals. 26/

24/ 41 CFR 60-4.6.
25/ 45 Federal Register 65983. Construction goals are percentages of total workforce hours worked by minority employees.
26/ Ibid.

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OFCCP's reply to this objection was that low minority representation in construction trades results from discriminatory exclusion of minorities from craft work, and that goals are meant to measure efforts by contractors to increase the supply of minority craftsmen. 27/

As indicated, construction goals are aggregate goals, comprising individuals in all minority groups taken together. However, OFCCP says that, on the basis of 1980 census data, it will issue separate goals for each minority group subdivided by sex. 28/

OFCCP has established a single, nationwide goal for women in construction. It arrived at this goal largely through estimating the percentage of women nationwide who do craft work similar to the work of construction trades, and by assuming that many women who do craft work would like to do it in the construction industry. The present goal for women is 6.9 percent. Unlike goals for minority workers, the goal for women is not applicable to each construction trade. Rather, it represents the percentage of on-site construction work hours worked by women. 29/

OFCCP enumerates "specific affirmative actions" 30/ that construction contractors are obligated to take as means of attaining their goals: recruiting outreach to sources of minority and female workers; measures to prevent discrimination in referral practices when contractors have agreed with unions to obtain their workers through hiring halls; on-the-job training or support of local training programs; and other steps to ensure full participation of minority and women workers in construction.

27/ Ibid.
28/ Ibid.
29/ 43 FR 14899-14900.
30/ 41 CFR 60-4.3(a).

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Some construction contractors are exempt from the requirements described above. These are contractors who are participants in so-called "hometown plans." Hometown plans are affirmative action plans in the construction industry agreed upon by contractors, unions, and minority groups in an area and approved by OFCCP. Contractors who have agreed to hometown plans must fulfill their obligations under those plans instead of complying with standardized OFCCP requirements. As of October 1980, there were 27 hometown plans in operation. 31/

Enforcement of Executive Order 11246

Executive Order 11246 authorizes administrative (as compared to judicial) enforcement of its requirements, although the Justice Department may also prosecute noncomplying contractors in court for violation of contract.

OFCCP monitors the compliance of contractors through several kinds of compliance reviews.

The initial compliance review is the preaward review. Prior to the award of any nonconstruction contract or subcontract amounting to $1 million or more, OFCCP makes a preliminary check of the contractor's commitment to equal employment opportunity. If OFCCP finds the contractor's commitment to be deficient, it may oblige the Federal agency awarding the contract to suspend the award of the contract until the contractor's commitment to nondiscrimination and affirmative action is assured. 32/

Other compliance reviews consist either of studying a contractor's equal employment opportunity records at OFCCP, or of going to the contractor's offices or plants and investigating the contractor's compliance on the spot.

31/ 45 FR 65979, 65983.
32/ 41 CFR 60-1.20(d), 1.29.

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The first kind of review is called a "desk audit," because it is an audit of records at an OFCCP desk. 33/ If a desk audit reveals any violation of the Executive Order or any failure to meet the obligations imposed by OFCCP regulations, OFCCP may perform an "on-site" review on the contractor's premises. 34/

If OFCCP discovers through an on-site review that the contractor is not in compliance, it may try to elicit from the contractor a conciliation agreement, whereby the contractor promises to take whatever actions are necessary to comply with the contractor's equal employment opportunity obligations. 35/

If a contractor refuses to conclude a conciliation agreement, or refuses to comply with such an agreement, OFCCP may then proceed to impose sanctions authorized by the Executive Order: cancellation or termination of the contract, and, after a hearing, debarment of the contractor from further Federal contracts, subcontracts, or federally assisted construction contracts. 36/

With respect to federally assisted construction contracts, the recipient who pays for such a contract with the aid of Federal funds must cooperate with - OFCCP in enforcing such sanctions against any contractor upon whom such sanctions have been imposed. 37/

OFCCP also enforces the Executive Order through receiving, investigating and seeking to resolve complaints of discrimination from contractors’ employees or job applicants. 38/ By agreement with EEOC, OFCCP refers complaints from

33/ 41 CFR 60-60.3(b).
34/ 41 CFR 60-60.3(c).
35/ 41 CFR 60-1.33(a).
36/ Executive Order 11246, Sec. 209(a)(5) and (6); Sec. 208(b).
37/ Ibid., Sec. 301.
38/ 41 CFR 60-1.21-1.24.

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individuals to EEOC, but itself deals with complaints involving practices of discrimination against whole clases of workers. 39/

Number of Contractors and Employees Covered by Executive Order 11246
In 1984, Executive Order 11246 required the following numbers of contractors and contractor establishments (separate plants or offices) to have written affirmative action plans:

Nonconstruction contractors: 15,420;
Nonconstruction contractor establishments: 115,000
Construction contractors: 42,0003
Construction contractor establishments: 100,000.

Both types of contractors together had contracts totalling about $166.8 billion and employed about 30 million workers.

39/ 41 CFR 60-1.24(a); U.S. Commission on Civil Rights. Promises and Perspectives; Federal Efforts to Eliminate Employment Discrimination Through Affirmative Action. October 1980. Washington, 1980. p. ll.

PMD/ jed

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Congressional Research Service
The Library of Congress
Washington, DC 20540
FEDERAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY FOR RACIAL AND ETHNIC MINORITIES AND FOR WOMEN IN THE PRIVATE SECTOR

Paul M. Downing
Specialist in American National Government
Government Division
February 17, 1983
Revised February 12, 1987

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CONTENTS
WAYS IN WHICH THE FEDERAL GOVERNMENT SEEKS TO GUARANTEE EQUAL EMPLOYMENT OPPORTUNITY.................................1

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.....................................4
Enforcement......................................4
Pattern-or—Practice Cases................................7
EEOC and Affirmative ACCION..............................8

EXECUTIVE ORDER 11246..............................8
Affirmative Action Requirements for Nonconstruction Contractors..............9
Affirmative Action Requirements for Construction Contractors.................11
Enforcement of Executive Order 11246.........................................14
Numbers of Contractors and Employees Covered by Executive Order 11246................................16

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FEDERAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY FOR RACIAL AND ETHNIC MINORITIES AND FOR WOMEN IN THE PRIVATE SECTOR
WAYS IN WHICH THE FEDERAL GOVERNMENT SEEKS TO GUARANTEE EQUAL EMPLOYMENT OPPORTUNITY
Equal employment opportunity means that no individual is denied a job, or training, or the chance to be upgraded in an employer's workforce because that individual belongs to a certain racial or ethnic minority group or because she is a woman. To be denied such employment opportunity because of one's race, national origin, or sex is to suffer employment discrimination.

There are two ways in which the Federal Government seeks to ensure that individuals have equal employment opportunity.

The first way is by enforcing laws that prohibit discrimination by employers and by others who are in a position to discriminate. Such laws forbid not only overt discrimination, such as refusal to hire an applicant because he or she is, for example, black or Hispanic, or female, or segregation of the workforce so that minority individuals or women are channelled into lower paid, dead-end jobs while whites or males are placed on career ladders leading to training and upgrading. Equal employment opportunity laws also forbid subtle types of discrimination by means of practices that are neutral on their face but are meant to effect discrimination. An example of this type of discrimination would be a test for selecting applicants for hiring, or employees for training, that is given both to minority and non-minority applicants for the purpose, not of testing job-related abilities, but of screening out minority or female test-takers.

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The second way in which the Federal Government aims to promote equal employment opportunity is by requiring that many employers undertake special measures to recruit, hire, train and upgrade minority and women workers. Such special measures are called "affirmative action."

Affirmative action is undertaken for either or both of two reasons.

The first reason is to overcome the consequences of past discrimination. As a result of past discrimination, minority persons or women may be deprived of training and work experience and thereby rendered not competitive with others. Affirmative action programs must be designed to help them become so.

The second reason for affirmative action is to eliminate present employment practices that constitute barriers to equal opportunity. An example of such a practice would be seeking applicants only in places where white or male applicants are to be found. An affirmative action program would oblige an employers to make special efforts to seek minority applicants in places where they are to be found, for example, in schools and colleges with heavy black or Hispanic enrollments.

The Federal Government implements its policy or ensuring equal employment opportunity primarily through a statute, Title VII of the Civil Rights Act of 1964, and an executive order, Executive Order 11246.

Title VII is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), whose primary mission is dealing with complaints and obtaining remedies for individuals and classes of individuals who have suffered discrimination.

Executive Order 11246 is implemented by the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor, whose primary mission is to ensure that Federal contractors take affirmative action to promote equal employment opportunity.

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Equal employment opportunity is also required under other statutes mandating nondiscrimination in programs of Federal financial assistance.

Title VI of the Civil Rights Act of 1964 prohibits discrimination by recipients of Federal funds, e.g., hospitals, public schools, State employment services, against the beneficiaries of programs operated with the assistance of such funds. Although Title VI is intended to protect program beneficiaries rather than employees or job applicants of recipients, Federal granting agencies oblige recipients to practice nondiscrimination with respect to their own workers as a means of ensuring that beneficiaries are granted equal access to program benefits. 1/

Nondiscrimination provisions similar to those of Title VI have been written into many specific programs of Federal assistance, including revenue sharing, and equal employment opportunity practices are obligatory for recipients under these programs both because of the program statute and because of Title VI.

Federal agencies that grant funds for programs are responsible for nondiscrimination in those programs, and they may enforce this obligation by withholding Federal funds. But they are authorized to refer any complaints of employment discrimination against an individual to EEOC. 2/

Finally, Congress, by the Civil Rights Act of 1957, created the U.S. Commission on Civil Rights to study and report on violations of the equal protection of the laws. One of the duties of the Commission is to study what the Federal Government is doing to eliminate discrimination because of race, color, religion, sex or national origin. In response to this mandate, the

1/ 28 Code of Federal Regulations 42.402(f£), 42.406(b)(3).
2/ 28 CFR 42.605(b).

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Commission has published reports on efforts by the Federal Government to enforce equal employment opportunity. One of its publications is its November 1981 report, Affirmative Action in the 1980s: Dismantling the Process of Discrimination.

The balance of this report will concentrate on implementation of what were noted above as the two primary, legal requirements for equal employment opportunity, Title VII and Executive Order 11246.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 as amended in 1972 forbids discrimination against any individual in employment decisions or practices because of that individual's race, color, religion, sex, or national origin. Title VII covers the entire range of employment practices: hiring, pay, opportunity for training, promotion. Most generally, it forbids any employment practice that

... would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 3/

Title VII applies to employers with 15 or more employees, to labor unions, and to employment agencies. It also covers public employers, Federal, State, and local. This report, however, deals only with employment practices in the private sector.

Enforcement
Congress created the Equal Employment Opportunity Commission (EEOC) to enforce the provisions of Title VII. The mission of EEOC is to receive, investigate and resolve complaints of discrimination.

3/ Sec. 703(a)(2).

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All complaints of discrimination filed with the Commission must charge discrimination against an individual. Some complaints, however, may suggest that the discrimination cited is not limited in ite effect to an individual, but extends to an entire class of individuals, for example, to blacks, or Hispanics, or women in a particular department of the employing company, or in the company's entire workforce. Early in the process of dealing with complaints, EEOC notes those with "class implications," that is, those that indicate that discrimination extends beyond the individual complainant, and later in the process it may expand an individual charge into a clase complaint, or group together individual charges against the same employer into a class complaint. As a matter of terminology, however, a class complaint cannot become what is called a "class action" until the case reaches the stage of litigation in court. As the result of a class complaint or a class action, an employer may be compelled to do justice to an entire class of individuals, some of whom may not have filed a complaint, instead of only to particular individuals who did file complaints.

Title VII requires that EEOC defer complaints to State and local fair employment practice (FEP) agencies when the complaint comes from a jurisdication having an FEP agency. EEOC enters into deferral contracts with such FEP agencies only after it has made sure that the FEP agency is effective in combating discrimination. 4/

Most of the steps in EEOC's charge processing are mandated by its statute. 5/ The Commission itself, however, has introduced a new way of attempting swift resolution of charges, the Rapid Charge Processing System. 6/ Under this method,

4/ 29 CFR 1601.70.
5/ Enforcement procedures are mandated in Sec. 706.
6/ 29 CFR 1601.20.

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EEOC asks the complainant and respondent (the employer or other entity charged with discrimination) shortly after a charge is received to sit down together with an EEOC staff member for a face-to-face, fact-finding conference. The aim of such a conference is to attempt to settle the charge by negotiation. Such a settlement involves no Commission judgment as to whether the complaint has merit. In fiscal year 1981, 43 percent of charges were settled in this way.

If there is no rapid settlement, EEOC will investigate the complaint and decide whether there is “reasonable cause to believe that the charge is true." 7/

If the Commission finds that there is not reasonable cause to believe that the charge is true, it will dismiss the complaint and notify the complainant that he has the right under Title VII to bring his case to the appropriate U.S. district court.

If EEOC determines that there is reasonable cause to believe that the charge is true, it will try to resolve it by "informal methods of conference, conciliation, persuasion." 8/ Through conciliation, the Commission tries to remedy the discrimination by eliciting from the respondent--the party against whom the complaint has been filed-~-an agreement to eliminate the discriminatory practice and to do justice to the complainant. Doing justice to the complainant could involve hiring or promoting him or her, and may involve payment to the complainant of back pay as compensation for pay lost as a result of discrimination. Title VII authorizes the award of back pay for up to two years prior to the date of filing a charge with the Commission.

If EEOC cannot obtain a conciliation agreement with the respondent acceptable to the Commission, it may bring suit against the respondent in a Federal district court. If the court finds that the employer, labor union, or employment agency

7/ Sec. 706(b).
8/ Ibid.

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has discriminated against the complainant or class of complainants, it may order the respondent to cease discriminating, to hire, or to reinstate each complainant, or to grant each complainant whatever other opportunity he or she was wrongfully denied, and to compensate each complainant with back pay.

Pattern-or-Practice Cases
In addition to receiving and resolving complaints from individuals who have suffered discrimination, EEOC may itself--by one of its commissioners—-file a charge against an employer or other entity subject to Title VII. It may do so if it believes that the employer has practiced discrimination not only against this or that individual but against all individuals of a class protected by Title VII by means of a "pattern or practice" of discrimination. A pattern or practice of discrimination means that, in some way, discrimination is built into the employer's personnel system, that such discrimination is "systemic." An example of systemic discrimination would be segregation by race or ethnic origin or sex of job classifications--having "black" or "Hispanic jobs," or "women's jobs."

EEOC charges of systemic discrimination are dealt with by the same procedures--including suit in court--as are other complaints received from complainants. 9/

EEOC and Affirmative Action
While Title VII prohibits employers and others subject to it from discriminating against individuals or classes of individuals, it does not require them to develop plans of affirmative action, unless they are obliged to do so under a conciliation agreement or court order. Nevertheless, EEOC urges employers

9/ Systemic charges are authorized by Sec. 707.

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to elaborate and to carry out affirmative action plans as a means of promoting equal employment opportunity and thereby of precluding liability to suit under Title VII. In 1979, the Commission published its guidelines, "Affirmative Action Appropriate under Title VII of the Civil Rights Act of 1964, as Amended." 10/ EEOC defines affirmative action as follows: "Affirmative action . . . means those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunitiy." 11/

In its guidelines on affirmative action and in other publications, EEOC advises employers about ways to increase minority participation in the workforce, such as special recruiting, redesign of jobs so that individuals can learn to do higher level work, and training programs. 12/

EXECUTIVE ORDER 11246
Executive Order 11246, promulgated in 1965, requires equal employment opportunity on the part of Federal contractors.

The Executive Order covers Federal construction and nonconstruction contractors and their subcontractors. It also covers federally assisted construction contractors and their subcontractors. A federally assisted construction contractor is a contractor who does construction work for an entity that is a recipient of Federal financial assistance and who pays for the construction work with the aid of Federal funds.

The Executive Order requires that all such contractors obligate themselves by contract not to discriminate in employment against job applicants or employees

10/ 29 CFR 1608.
1l/ Ibid.
12/ 29 CFR 1608.4(c)(1).

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because of their race, color, religion, sex or national origin, and to undertake affirmative action to promote equal employment opportunity.

The Secretary of Labor is responsible for enforcing the Executive Order; the Secretary has vested this responsibility in the Office of Federal Contract Compliance Programs (OFCCP), which is part of the Employment Standards Administration.

Affirmative Action Requirements for Nonconstruction Contractors
OFCCP requires nonconstruction contractors and subcontractors with a contract of $50,000 or more and with 50 or more employees to develop written affirmative action plans. The plan must cover all of their offices and plants, whether or not they are working on a Federal contract or subcontract. 13/ OFCCP defines an affirmative action plan as "a set of specific and result-oriented procedures" designed "to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his [the contractor's] workforce where deficiencies exist." 14/

The notion of "utilization" is the key to understanding the aim of affirmative action. OFCCP recognizes that there are in any area labor force, among people who are working or looking for work, minority and women workers either with developed knowledge, skills and abilities needed by industry, or with aptitude to acquire job qualifications through training, but whose qualifications remain unused, or underused, or whose potentialities remain latent as a result of past or present discrimination. The aim of affirmative action, according to OFCCP, is to search for these unused abilities and aptitudes and to hire, train and upgrade minority and women workers who possess then.

13/ 41 CFR 60-2.
14/ 41 CFR 60-2.10.

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Pursuant to this aim, OFCCP obliges contractors to perform a "utilization analysis." 15/ A utilization analysis compares two things. It compares the availability of qualified and qualifiable minority and women workers both in the labor area and in the contractor's workforce with the numbers of minority and women workers employed in each "job group” in the contractor's workforce. A "Job group" is a group of jobs that are similar in types of work, in pay, and in opportunities for advancement. The purpose of the comparison is to discover "underutilization," which OFCCP defines as "having fewer minorities or women in a particular job group than would be expected by their availability." 16/ A contractor may find that there are higher proportions of qualified minority or women workers in the labor area than he employs in job groups corresponding to their specific skills. He may find that he has minority and women workers in his own workforce who are doing work that does not fully utilize their abilities.

For job groups in which there is such underutilization, the contractor is required to set employment "goals". A "goal" is the number of minority or women workers who would be in a job group, or the percentages of all workers in a job group who would be minorities or women, if available minority and women workers were fully utilized. And for each goal, the contractor is to set a timetable for its attainment. 17/

The goal for any job group in which minority workers are underutilized is to be a single goal for persons of all minority groups taken together, and for women. 18/ OFCCP designated as minority groups the following: blacks, Hispanics, American Indians and Alaskan Natives, and Asians and Pacific Islanders. 19/

15/ 41 CFR 60-2.11
16/ 41 CFR 60-2.11(b).
17/ 41 CFR 60-2.12.
18/ 41 CFR 60-2.12(h).
19/ 41 CFR 60-2.11(a).

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OFCCP, however, will not permit employment of members of one or some minority groups to the exclusion of members of other minority groups, and, if any minority group appears to be substantially underutilized, OFCCP may require a separate goal for that minority group. 20/

A goal is meant to be at once a target to aim at, and a measure of accomplishment. It is not to be attained by direct, quota hiring, but by means of carrying out all of the specific steps of an affirmative action program. 21/

OFCCP specifies many of the steps that must be included in the contractor's affirmative action program, and by means of which the contractor is to make good-faith efforts to attain his goals. 22/

Among the most important steps that a contractor is expected to take are: to elicit job applications through minority and women's organizations that refer applicants for employment; to recruit at schools and colleges with sizeable minority or female enrollments; to provide training, if possible; and to support vocational training programs in the community and in schools.

Affirmative Action Requirements for Construction Contractors
Federal and federally assisted construction contractors and their construction subcontractors with a contract of more than $10,000 must comply with OFCCP affirmative action requirements for the construction industry. Such requirements cover all of a contractor's construction projects, whether or not they are Federal or federaly assisted. 23/

20/ 41 CFR 60-2.12(k)(1).
21/ 41 CFR 2.12(a).
22/ 41 CFR 60-2.20-2.26.
23/ 41 CFR 60-4.1.

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Whereas nonconstruction contractors are obligated to perform their own utilization analyses and to set their own employment goals and timetables, OFCCP itself establishes goals for construction contractors. 24/ It does so in the following way.

OFCCP has divided the country into urban areas--standard metropolitan statistical areas (SMSA‘s) and nonurban areas~-so-called "economic areas" (EA's), comprising a county or a group of counties.

For all construction projects within each SMSA or EA, OFCCP has set the same goal for minority participation in each construction trade. The single goal for every trade is a percentage equal to the percentage that minority workers comprise in the experienced civilian labor force (everyone 16 years old or over who is working or looking for work and who has ever worked before) in that SMSA or EA. 25/

For example, if black, Hispanic, American Indian and Asian-American workers comprise 10 percent of the civilian labor force in an SMSA, the minority goal for each construction trade--asbestos workers, carpenters, lathers, roofers, sheetmetal workers and other trades is 10 percent.

Some construction contractors have objected that setting goals for construction trades on the basis of the minority percentage in the civilian labor force is unrealistic, because people are counted in the civilian labor force regardless of their specific job qualifications, whereas construction trade work requires considerable training. These contractors pointed out that there may not be enough trained minority craftsmen available to meet such goals. 26/

24/ 41 CFR 60-4.6.
25/ 45 Federal Register 65983. Construction goals are percentages of total workforce hours worked by minority employees.
26/ Ibid.

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OFCCP's reply to this objection was that low minority representation in construction trades results from discriminatory exclusion of minorities from craft work, and that goals are meant to measure efforts by contractors to increase the supply of minority craftsmen. 27/

As indicated, construction goals are aggregate goals, comprising individuals in all minority groups taken together. However, OFCCP says that, on the basis of 1980 census data, it will issue separate goals for each minority group subdivided by sex. 28/

OFCCP has established a single, nationwide goal for women in construction. It arrived at this goal largely through estimating the percentage of women nationwide who do craft work similar to the work of construction trades, and by assuming that many women who do craft work would like to do it in the construction industry. The present goal for women is 6.9 percent. Unlike goals for minority workers, the goal for women is not applicable to each construction trade. Rather, it represents the percentage of on-site construction work hours worked by women. 29/

OFCCP enumerates "specific affirmative actions" 30/ that construction contractors are obligated to take as means of attaining their goals: recruiting outreach to sources of minority and female workers; measures to prevent discrimination in referral practices when contractors have agreed with unions to obtain their workers through hiring halls; on-the-job training or support of local training programs; and other steps to ensure full participation of minority and women workers in construction.

27/ Ibid.
28/ Ibid.
29/ 43 FR 14899-14900.
30/ 41 CFR 60-4.3(a).

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Some construction contractors are exempt from the requirements described above. These are contractors who are participants in so-called "hometown plans." Hometown plans are affirmative action plans in the construction industry agreed upon by contractors, unions, and minority groups in an area and approved by OFCCP. Contractors who have agreed to hometown plans must fulfill their obligations under those plans instead of complying with standardized OFCCP requirements. As of October 1980, there were 27 hometown plans in operation. 31/

Enforcement of Executive Order 11246

Executive Order 11246 authorizes administrative (as compared to judicial) enforcement of its requirements, although the Justice Department may also prosecute noncomplying contractors in court for violation of contract.

OFCCP monitors the compliance of contractors through several kinds of compliance reviews.

The initial compliance review is the preaward review. Prior to the award of any nonconstruction contract or subcontract amounting to $1 million or more, OFCCP makes a preliminary check of the contractor's commitment to equal employment opportunity. If OFCCP finds the contractor's commitment to be deficient, it may oblige the Federal agency awarding the contract to suspend the award of the contract until the contractor's commitment to nondiscrimination and affirmative action is assured. 32/

Other compliance reviews consist either of studying a contractor's equal employment opportunity records at OFCCP, or of going to the contractor's offices or plants and investigating the contractor's compliance on the spot.

31/ 45 FR 65979, 65983.
32/ 41 CFR 60-1.20(d), 1.29.

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The first kind of review is called a "desk audit," because it is an audit of records at an OFCCP desk. 33/ If a desk audit reveals any violation of the Executive Order or any failure to meet the obligations imposed by OFCCP regulations, OFCCP may perform an "on-site" review on the contractor's premises. 34/

If OFCCP discovers through an on-site review that the contractor is not in compliance, it may try to elicit from the contractor a conciliation agreement, whereby the contractor promises to take whatever actions are necessary to comply with the contractor's equal employment opportunity obligations. 35/

If a contractor refuses to conclude a conciliation agreement, or refuses to comply with such an agreement, OFCCP may then proceed to impose sanctions authorized by the Executive Order: cancellation or termination of the contract, and, after a hearing, debarment of the contractor from further Federal contracts, subcontracts, or federally assisted construction contracts. 36/

With respect to federally assisted construction contracts, the recipient who pays for such a contract with the aid of Federal funds must cooperate with - OFCCP in enforcing such sanctions against any contractor upon whom such sanctions have been imposed. 37/

OFCCP also enforces the Executive Order through receiving, investigating and seeking to resolve complaints of discrimination from contractors’ employees or job applicants. 38/ By agreement with EEOC, OFCCP refers complaints from

33/ 41 CFR 60-60.3(b).
34/ 41 CFR 60-60.3(c).
35/ 41 CFR 60-1.33(a).
36/ Executive Order 11246, Sec. 209(a)(5) and (6); Sec. 208(b).
37/ Ibid., Sec. 301.
38/ 41 CFR 60-1.21-1.24.

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individuals to EEOC, but itself deals with complaints involving practices of discrimination against whole clases of workers. 39/

Number of Contractors and Employees Covered by Executive Order 11246
In 1984, Executive Order 11246 required the following numbers of contractors and contractor establishments (separate plants or offices) to have written affirmative action plans:

Nonconstruction contractors: 15,420;
Nonconstruction contractor establishments: 115,000
Construction contractors: 42,0003
Construction contractor establishments: 100,000.

Both types of contractors together had contracts totalling about $166.8 billion and employed about 30 million workers.

39/ 41 CFR 60-1.24(a); U.S. Commission on Civil Rights. Promises and Perspectives; Federal Efforts to Eliminate Employment Discrimination Through Affirmative Action. October 1980. Washington, 1980. p. ll.

PMD/ jed

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Congressional Research Service
The Library of Congress
Washington, DC 20540
FEDERAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY FOR RACIAL AND ETHNIC MINORITIES AND FOR WOMEN IN THE PRIVATE SECTOR

Paul M. Downing
Specialist in American National Government
Government Division
February 17, 1983
Revised February 12, 1987

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CONTENTS
WAYS IN WHICH THE FEDERAL GOVERNMENT SEEKS TO GUARANTEE EQUAL EMPLOYMENT OPPORTUNITY.................................1

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.....................................4
Enforcement......................................4
Pattern-or—Practice Cases................................7
EEOC and Affirmative ACCION..............................8

EXECUTIVE ORDER 11246..............................8
Affirmative Action Requirements for Nonconstruction Contractors..............9
Affirmative Action Requirements for Construction Contractors.................11
Enforcement of Executive Order 11246.........................................14
Numbers of Contractors and Employees Covered by Executive Order 11246................................16

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FEDERAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY FOR RACIAL AND ETHNIC MINORITIES AND FOR WOMEN IN THE PRIVATE SECTOR
WAYS IN WHICH THE FEDERAL GOVERNMENT SEEKS TO GUARANTEE EQUAL EMPLOYMENT OPPORTUNITY
Equal employment opportunity means that no individual is denied a job, or training, or the chance to be upgraded in an employer's workforce because that individual belongs to a certain racial or ethnic minority group or because she is a woman. To be denied such employment opportunity because of one's race, national origin, or sex is to suffer employment discrimination.

There are two ways in which the Federal Government seeks to ensure that individuals have equal employment opportunity.

The first way is by enforcing laws that prohibit discrimination by employers and by others who are in a position to discriminate. Such laws forbid not only overt discrimination, such as refusal to hire an applicant because he or she is, for example, black or Hispanic, or female, or segregation of the workforce so that minority individuals or women are channelled into lower paid, dead-end jobs while whites or males are placed on career ladders leading to training and upgrading. Equal employment opportunity laws also forbid subtle types of discrimination by means of practices that are neutral on their face but are meant to effect discrimination. An example of this type of discrimination would be a test for selecting applicants for hiring, or employees for training, that is given both to minority and non-minority applicants for the purpose, not of testing job-related abilities, but of screening out minority or female test-takers.

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The second way in which the Federal Government aims to promote equal employment opportunity is by requiring that many employers undertake special measures to recruit, hire, train and upgrade minority and women workers. Such special measures are called "affirmative action."

Affirmative action is undertaken for either or both of two reasons.

The first reason is to overcome the consequences of past discrimination. As a result of past discrimination, minority persons or women may be deprived of training and work experience and thereby rendered not competitive with others. Affirmative action programs must be designed to help them become so.

The second reason for affirmative action is to eliminate present employment practices that constitute barriers to equal opportunity. An example of such a practice would be seeking applicants only in places where white or male applicants are to be found. An affirmative action program would oblige an employers to make special efforts to seek minority applicants in places where they are to be found, for example, in schools and colleges with heavy black or Hispanic enrollments.

The Federal Government implements its policy or ensuring equal employment opportunity primarily through a statute, Title VII of the Civil Rights Act of 1964, and an executive order, Executive Order 11246.

Title VII is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), whose primary mission is dealing with complaints and obtaining remedies for individuals and classes of individuals who have suffered discrimination.

Executive Order 11246 is implemented by the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor, whose primary mission is to ensure that Federal contractors take affirmative action to promote equal employment opportunity.

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Equal employment opportunity is also required under other statutes mandating nondiscrimination in programs of Federal financial assistance.

Title VI of the Civil Rights Act of 1964 prohibits discrimination by recipients of Federal funds, e.g., hospitals, public schools, State employment services, against the beneficiaries of programs operated with the assistance of such funds. Although Title VI is intended to protect program beneficiaries rather than employees or job applicants of recipients, Federal granting agencies oblige recipients to practice nondiscrimination with respect to their own workers as a means of ensuring that beneficiaries are granted equal access to program benefits. 1/

Nondiscrimination provisions similar to those of Title VI have been written into many specific programs of Federal assistance, including revenue sharing, and equal employment opportunity practices are obligatory for recipients under these programs both because of the program statute and because of Title VI.

Federal agencies that grant funds for programs are responsible for nondiscrimination in those programs, and they may enforce this obligation by withholding Federal funds. But they are authorized to refer any complaints of employment discrimination against an individual to EEOC. 2/

Finally, Congress, by the Civil Rights Act of 1957, created the U.S. Commission on Civil Rights to study and report on violations of the equal protection of the laws. One of the duties of the Commission is to study what the Federal Government is doing to eliminate discrimination because of race, color, religion, sex or national origin. In response to this mandate, the

1/ 28 Code of Federal Regulations 42.402(f£), 42.406(b)(3).
2/ 28 CFR 42.605(b).

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Commission has published reports on efforts by the Federal Government to enforce equal employment opportunity. One of its publications is its November 1981 report, Affirmative Action in the 1980s: Dismantling the Process of Discrimination.

The balance of this report will concentrate on implementation of what were noted above as the two primary, legal requirements for equal employment opportunity, Title VII and Executive Order 11246.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 as amended in 1972 forbids discrimination against any individual in employment decisions or practices because of that individual's race, color, religion, sex, or national origin. Title VII covers the entire range of employment practices: hiring, pay, opportunity for training, promotion. Most generally, it forbids any employment practice that

... would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 3/

Title VII applies to employers with 15 or more employees, to labor unions, and to employment agencies. It also covers public employers, Federal, State, and local. This report, however, deals only with employment practices in the private sector.

Enforcement
Congress created the Equal Employment Opportunity Commission (EEOC) to enforce the provisions of Title VII. The mission of EEOC is to receive, investigate and resolve complaints of discrimination.

3/ Sec. 703(a)(2).

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All complaints of discrimination filed with the Commission must charge discrimination against an individual. Some complaints, however, may suggest that the discrimination cited is not limited in ite effect to an individual, but extends to an entire class of individuals, for example, to blacks, or Hispanics, or women in a particular department of the employing company, or in the company's entire workforce. Early in the process of dealing with complaints, EEOC notes those with "class implications," that is, those that indicate that discrimination extends beyond the individual complainant, and later in the process it may expand an individual charge into a clase complaint, or group together individual charges against the same employer into a class complaint. As a matter of terminology, however, a class complaint cannot become what is called a "class action" until the case reaches the stage of litigation in court. As the result of a class complaint or a class action, an employer may be compelled to do justice to an entire class of individuals, some of whom may not have filed a complaint, instead of only to particular individuals who did file complaints.

Title VII requires that EEOC defer complaints to State and local fair employment practice (FEP) agencies when the complaint comes from a jurisdication having an FEP agency. EEOC enters into deferral contracts with such FEP agencies only after it has made sure that the FEP agency is effective in combating discrimination. 4/

Most of the steps in EEOC's charge processing are mandated by its statute. 5/ The Commission itself, however, has introduced a new way of attempting swift resolution of charges, the Rapid Charge Processing System. 6/ Under this method,

4/ 29 CFR 1601.70.
5/ Enforcement procedures are mandated in Sec. 706.
6/ 29 CFR 1601.20.

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EEOC asks the complainant and respondent (the employer or other entity charged with discrimination) shortly after a charge is received to sit down together with an EEOC staff member for a face-to-face, fact-finding conference. The aim of such a conference is to attempt to settle the charge by negotiation. Such a settlement involves no Commission judgment as to whether the complaint has merit. In fiscal year 1981, 43 percent of charges were settled in this way.

If there is no rapid settlement, EEOC will investigate the complaint and decide whether there is “reasonable cause to believe that the charge is true." 7/

If the Commission finds that there is not reasonable cause to believe that the charge is true, it will dismiss the complaint and notify the complainant that he has the right under Title VII to bring his case to the appropriate U.S. district court.

If EEOC determines that there is reasonable cause to believe that the charge is true, it will try to resolve it by "informal methods of conference, conciliation, persuasion." 8/ Through conciliation, the Commission tries to remedy the discrimination by eliciting from the respondent--the party against whom the complaint has been filed-~-an agreement to eliminate the discriminatory practice and to do justice to the complainant. Doing justice to the complainant could involve hiring or promoting him or her, and may involve payment to the complainant of back pay as compensation for pay lost as a result of discrimination. Title VII authorizes the award of back pay for up to two years prior to the date of filing a charge with the Commission.

If EEOC cannot obtain a conciliation agreement with the respondent acceptable to the Commission, it may bring suit against the respondent in a Federal district court. If the court finds that the employer, labor union, or employment agency

7/ Sec. 706(b).
8/ Ibid.

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has discriminated against the complainant or class of complainants, it may order the respondent to cease discriminating, to hire, or to reinstate each complainant, or to grant each complainant whatever other opportunity he or she was wrongfully denied, and to compensate each complainant with back pay.

Pattern-or-Practice Cases
In addition to receiving and resolving complaints from individuals who have suffered discrimination, EEOC may itself--by one of its commissioners—-file a charge against an employer or other entity subject to Title VII. It may do so if it believes that the employer has practiced discrimination not only against this or that individual but against all individuals of a class protected by Title VII by means of a "pattern or practice" of discrimination. A pattern or practice of discrimination means that, in some way, discrimination is built into the employer's personnel system, that such discrimination is "systemic." An example of systemic discrimination would be segregation by race or ethnic origin or sex of job classifications--having "black" or "Hispanic jobs," or "women's jobs."

EEOC charges of systemic discrimination are dealt with by the same procedures--including suit in court--as are other complaints received from complainants. 9/

EEOC and Affirmative Action
While Title VII prohibits employers and others subject to it from discriminating against individuals or classes of individuals, it does not require them to develop plans of affirmative action, unless they are obliged to do so under a conciliation agreement or court order. Nevertheless, EEOC urges employers

9/ Systemic charges are authorized by Sec. 707.

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to elaborate and to carry out affirmative action plans as a means of promoting equal employment opportunity and thereby of precluding liability to suit under Title VII. In 1979, the Commission published its guidelines, "Affirmative Action Appropriate under Title VII of the Civil Rights Act of 1964, as Amended." 10/ EEOC defines affirmative action as follows: "Affirmative action . . . means those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunitiy." 11/

In its guidelines on affirmative action and in other publications, EEOC advises employers about ways to increase minority participation in the workforce, such as special recruiting, redesign of jobs so that individuals can learn to do higher level work, and training programs. 12/

EXECUTIVE ORDER 11246
Executive Order 11246, promulgated in 1965, requires equal employment opportunity on the part of Federal contractors.

The Executive Order covers Federal construction and nonconstruction contractors and their subcontractors. It also covers federally assisted construction contractors and their subcontractors. A federally assisted construction contractor is a contractor who does construction work for an entity that is a recipient of Federal financial assistance and who pays for the construction work with the aid of Federal funds.

The Executive Order requires that all such contractors obligate themselves by contract not to discriminate in employment against job applicants or employees

10/ 29 CFR 1608.
1l/ Ibid.
12/ 29 CFR 1608.4(c)(1).

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because of their race, color, religion, sex or national origin, and to undertake affirmative action to promote equal employment opportunity.

The Secretary of Labor is responsible for enforcing the Executive Order; the Secretary has vested this responsibility in the Office of Federal Contract Compliance Programs (OFCCP), which is part of the Employment Standards Administration.

Affirmative Action Requirements for Nonconstruction Contractors
OFCCP requires nonconstruction contractors and subcontractors with a contract of $50,000 or more and with 50 or more employees to develop written affirmative action plans. The plan must cover all of their offices and plants, whether or not they are working on a Federal contract or subcontract. 13/ OFCCP defines an affirmative action plan as "a set of specific and result-oriented procedures" designed "to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his [the contractor's] workforce where deficiencies exist." 14/

The notion of "utilization" is the key to understanding the aim of affirmative action. OFCCP recognizes that there are in any area labor force, among people who are working or looking for work, minority and women workers either with developed knowledge, skills and abilities needed by industry, or with aptitude to acquire job qualifications through training, but whose qualifications remain unused, or underused, or whose potentialities remain latent as a result of past or present discrimination. The aim of affirmative action, according to OFCCP, is to search for these unused abilities and aptitudes and to hire, train and upgrade minority and women workers who possess then.

13/ 41 CFR 60-2.
14/ 41 CFR 60-2.10.

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Pursuant to this aim, OFCCP obliges contractors to perform a "utilization analysis." 15/ A utilization analysis compares two things. It compares the availability of qualified and qualifiable minority and women workers both in the labor area and in the contractor's workforce with the numbers of minority and women workers employed in each "job group” in the contractor's workforce. A "Job group" is a group of jobs that are similar in types of work, in pay, and in opportunities for advancement. The purpose of the comparison is to discover "underutilization," which OFCCP defines as "having fewer minorities or women in a particular job group than would be expected by their availability." 16/ A contractor may find that there are higher proportions of qualified minority or women workers in the labor area than he employs in job groups corresponding to their specific skills. He may find that he has minority and women workers in his own workforce who are doing work that does not fully utilize their abilities.

For job groups in which there is such underutilization, the contractor is required to set employment "goals". A "goal" is the number of minority or women workers who would be in a job group, or the percentages of all workers in a job group who would be minorities or women, if available minority and women workers were fully utilized. And for each goal, the contractor is to set a timetable for its attainment. 17/

The goal for any job group in which minority workers are underutilized is to be a single goal for persons of all minority groups taken together, and for women. 18/ OFCCP designated as minority groups the following: blacks, Hispanics, American Indians and Alaskan Natives, and Asians and Pacific Islanders. 19/

15/ 41 CFR 60-2.11
16/ 41 CFR 60-2.11(b).
17/ 41 CFR 60-2.12.
18/ 41 CFR 60-2.12(h).
19/ 41 CFR 60-2.11(a).

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OFCCP, however, will not permit employment of members of one or some minority groups to the exclusion of members of other minority groups, and, if any minority group appears to be substantially underutilized, OFCCP may require a separate goal for that minority group. 20/

A goal is meant to be at once a target to aim at, and a measure of accomplishment. It is not to be attained by direct, quota hiring, but by means of carrying out all of the specific steps of an affirmative action program. 21/

OFCCP specifies many of the steps that must be included in the contractor's affirmative action program, and by means of which the contractor is to make good-faith efforts to attain his goals. 22/

Among the most important steps that a contractor is expected to take are: to elicit job applications through minority and women's organizations that refer applicants for employment; to recruit at schools and colleges with sizeable minority or female enrollments; to provide training, if possible; and to support vocational training programs in the community and in schools.

Affirmative Action Requirements for Construction Contractors
Federal and federally assisted construction contractors and their construction subcontractors with a contract of more than $10,000 must comply with OFCCP affirmative action requirements for the construction industry. Such requirements cover all of a contractor's construction projects, whether or not they are Federal or federaly assisted. 23/

20/ 41 CFR 60-2.12(k)(1).
21/ 41 CFR 2.12(a).
22/ 41 CFR 60-2.20-2.26.
23/ 41 CFR 60-4.1.

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Whereas nonconstruction contractors are obligated to perform their own utilization analyses and to set their own employment goals and timetables, OFCCP itself establishes goals for construction contractors. 24/ It does so in the following way.

OFCCP has divided the country into urban areas--standard metropolitan statistical areas (SMSA‘s) and nonurban areas~-so-called "economic areas" (EA's), comprising a county or a group of counties.

For all construction projects within each SMSA or EA, OFCCP has set the same goal for minority participation in each construction trade. The single goal for every trade is a percentage equal to the percentage that minority workers comprise in the experienced civilian labor force (everyone 16 years old or over who is working or looking for work and who has ever worked before) in that SMSA or EA. 25/

For example, if black, Hispanic, American Indian and Asian-American workers comprise 10 percent of the civilian labor force in an SMSA, the minority goal for each construction trade--asbestos workers, carpenters, lathers, roofers, sheetmetal workers and other trades is 10 percent.

Some construction contractors have objected that setting goals for construction trades on the basis of the minority percentage in the civilian labor force is unrealistic, because people are counted in the civilian labor force regardless of their specific job qualifications, whereas construction trade work requires considerable training. These contractors pointed out that there may not be enough trained minority craftsmen available to meet such goals. 26/

24/ 41 CFR 60-4.6.
25/ 45 Federal Register 65983. Construction goals are percentages of total workforce hours worked by minority employees.
26/ Ibid.

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OFCCP's reply to this objection was that low minority representation in construction trades results from discriminatory exclusion of minorities from craft work, and that goals are meant to measure efforts by contractors to increase the supply of minority craftsmen. 27/

As indicated, construction goals are aggregate goals, comprising individuals in all minority groups taken together. However, OFCCP says that, on the basis of 1980 census data, it will issue separate goals for each minority group subdivided by sex. 28/

OFCCP has established a single, nationwide goal for women in construction. It arrived at this goal largely through estimating the percentage of women nationwide who do craft work similar to the work of construction trades, and by assuming that many women who do craft work would like to do it in the construction industry. The present goal for women is 6.9 percent. Unlike goals for minority workers, the goal for women is not applicable to each construction trade. Rather, it represents the percentage of on-site construction work hours worked by women. 29/

OFCCP enumerates "specific affirmative actions" 30/ that construction contractors are obligated to take as means of attaining their goals: recruiting outreach to sources of minority and female workers; measures to prevent discrimination in referral practices when contractors have agreed with unions to obtain their workers through hiring halls; on-the-job training or support of local training programs; and other steps to ensure full participation of minority and women workers in construction.

27/ Ibid.
28/ Ibid.
29/ 43 FR 14899-14900.
30/ 41 CFR 60-4.3(a).

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Some construction contractors are exempt from the requirements described above. These are contractors who are participants in so-called "hometown plans." Hometown plans are affirmative action plans in the construction industry agreed upon by contractors, unions, and minority groups in an area and approved by OFCCP. Contractors who have agreed to hometown plans must fulfill their obligations under those plans instead of complying with standardized OFCCP requirements. As of October 1980, there were 27 hometown plans in operation. 31/

Enforcement of Executive Order 11246

Executive Order 11246 authorizes administrative (as compared to judicial) enforcement of its requirements, although the Justice Department may also prosecute noncomplying contractors in court for violation of contract.

OFCCP monitors the compliance of contractors through several kinds of compliance reviews.

The initial compliance review is the preaward review. Prior to the award of any nonconstruction contract or subcontract amounting to $1 million or more, OFCCP makes a preliminary check of the contractor's commitment to equal employment opportunity. If OFCCP finds the contractor's commitment to be deficient, it may oblige the Federal agency awarding the contract to suspend the award of the contract until the contractor's commitment to nondiscrimination and affirmative action is assured. 32/

Other compliance reviews consist either of studying a contractor's equal employment opportunity records at OFCCP, or of going to the contractor's offices or plants and investigating the contractor's compliance on the spot.

31/ 45 FR 65979, 65983.
32/ 41 CFR 60-1.20(d), 1.29.

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The first kind of review is called a "desk audit," because it is an audit of records at an OFCCP desk. 33/ If a desk audit reveals any violation of the Executive Order or any failure to meet the obligations imposed by OFCCP regulations, OFCCP may perform an "on-site" review on the contractor's premises. 34/

If OFCCP discovers through an on-site review that the contractor is not in compliance, it may try to elicit from the contractor a conciliation agreement, whereby the contractor promises to take whatever actions are necessary to comply with the contractor's equal employment opportunity obligations. 35/

If a contractor refuses to conclude a conciliation agreement, or refuses to comply with such an agreement, OFCCP may then proceed to impose sanctions authorized by the Executive Order: cancellation or termination of the contract, and, after a hearing, debarment of the contractor from further Federal contracts, subcontracts, or federally assisted construction contracts. 36/

With respect to federally assisted construction contracts, the recipient who pays for such a contract with the aid of Federal funds must cooperate with - OFCCP in enforcing such sanctions against any contractor upon whom such sanctions have been imposed. 37/

OFCCP also enforces the Executive Order through receiving, investigating and seeking to resolve complaints of discrimination from contractors’ employees or job applicants. 38/ By agreement with EEOC, OFCCP refers complaints from

33/ 41 CFR 60-60.3(b).
34/ 41 CFR 60-60.3(c).
35/ 41 CFR 60-1.33(a).
36/ Executive Order 11246, Sec. 209(a)(5) and (6); Sec. 208(b).
37/ Ibid., Sec. 301.
38/ 41 CFR 60-1.21-1.24.

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individuals to EEOC, but itself deals with complaints involving practices of discrimination against whole clases of workers. 39/

Number of Contractors and Employees Covered by Executive Order 11246
In 1984, Executive Order 11246 required the following numbers of contractors and contractor establishments (separate plants or offices) to have written affirmative action plans:

Nonconstruction contractors: 15,420;
Nonconstruction contractor establishments: 115,000
Construction contractors: 42,0003
Construction contractor establishments: 100,000.

Both types of contractors together had contracts totalling about $166.8 billion and employed about 30 million workers.

39/ 41 CFR 60-1.24(a); U.S. Commission on Civil Rights. Promises and Perspectives; Federal Efforts to Eliminate Employment Discrimination Through Affirmative Action. October 1980. Washington, 1980. p. ll.

PMD/ jed

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