3. Compliance Determination and Settlements-Affirmative Action Goals and Timetables As described in chapter 5 a principal problem in the administration of the affirmative action goals and timetables requirement is the wide latitude permitted contractors and Government compliance officials in determining the necessity for and level of goals as well as the time period by which they must be accomplished. This problem is a consequence of the lack of reasonably precise data on the availability of minorities and women for employment by job group or occupation. The demographic study would permit OFCCP to develop availability figures and percentages and establish benchmarks by industry, job group, and standard metropolitan statistical area. 4. Compliance Determinations and Settlements-- Objectivity in the processes for identifying, and proving systemic discrimination and bringing about the remedial rights and benefits to which minorities and women are entitled would be achieved by codifying and assuring adherence to standards of proof and remedy. Thereafter each compliance review and investigation would be designed to bring about the remedial rights and benefits to which affected class members are entitled. The obligation to identify and remedy systemic discrimi the standards for identifying and remedying such discrimintion would be set forth in affirmative action program regulations, and the standards for investigating and proving discrimination would be set forth in the compliance review and investigation regulations, and in operating manual issuances. The regulations and manual issuances would be supplemented by rulings and interpretations and they would be revised as EEO case law further evolves. 5. Contract Passovers and Deferrals In procedures designed to determine a contractor's ability to comply with the equal opportunity clause in pending contracts there are two defects. First, although 41 CFR 60-2.2(b) requires procuring officials to consider a contractor-bidder's ability to comply with the EEO clause when making determinations concerning the contractor-bidder's responsibility for an award, it is left entirely to the discretion of the EEO compliance official or compliance agency to bring a show cause notice or other evidence of nonresponsibility to the attention of such procuring officials. Thus, in instances in which the Federal Government has full knowledge of a contractor-bidder's inability to comply there is no assurance that the contractor-bidder is not being awarded Govern establish a notification system by which show cause notices and other evidence of inability to comply with the EEO clause are routinely brought to the attention of procuring officials. The second defect, is that once a contractor-bidder is determined nonresponsible on the basis of inability to comply with the EEO clause, it may request the director to determine, in his sole discretion, that the matter raises substantial issues of law or fact to the extent that a full evidentary type hearing is necessary prior to a passover. In chapter 9, the Task Force recommended that any such appeal be processed through an expedited hearing (3-5) days. The Task Force further recommends that the decision of the Administrative Judge constitute final agency action. 6. Sanction Hearings There are also two defects in the procedures leading to sanction hearing and decisions following those hearings. First, after conciliation fails, OFCCP has found that authorization to invoke sanction procedures cannot be granted because of poor case preparation. The frequency with which such cases are rejected for legal reasons would be greatly reduced by the codification of standards for investigating, proving and remedying discrimination, and the consolidation of compliance and a manner as to hold compliance review officials accountable for adhering to those standards. Further, full time EEO legal talent would also be available within the DOL field offices to assure that the case is legally sufficient at the point at which the violation is discovered. Second, under current regulations, the sanction proceedings conclude with a recommendation from the Administrative Law Judge to the agency head, the Director, OFCCP, or the Secretary of Labor. For reasons of greater efficiency the Task Force has recommended that sanction proceedings be held before a Contract Compliance Appeals Board. To eliminate the discretion of OFCCP and/or the Secretary of Labor with respect to decisions following those proceedings, the Task Force also recommends that the decision of the Appeals Board constitute final agency action. |