a finding of discrimination is necessary to enforce remedies for affected class and related forms of systemic discrimination, the preliminary determination may be arrived at from prescribed data and information maintained by the contractor for self analysis and self This facilitates a more efficient correction purposes. resources. and effective use of compliance staff and budgetary Further, the affirmative action goals and timetables requirement, if effectively administered, leads inevitably toward a reasonable degree of parity in jobs and income. Maximum attainable progress toward that result is a principal criterion for determining violations. A third major advantage inherent in the Executive Order Program is that its requirements are enforced primarily through administrative hearings rather than through judicial proceedings. Under administrative proceedings decisions are arrived at rather promptly and efficiently while the judicial process tends to entail costly, time consuming (often, multiyear) litigation. An added advantage of the Order's compliance process is that violations which do not raise serious and legitimate questions of law or fact are enforceable outside the context of formal proceedings through the Government's ability to require corrective action as Despite the superior features of the Executive Order Program there is no precise evidence to support a conclusion that OFCCP has brought about a substantial change in the employment conditions of minorities and women. Thus, several studies have concluded that the responsibility and authority of OFCCP be transferred to a more "aggressive" enforcement agency. The first principal critical study of the Federal Government's EEO efforts was conducted by the Brookings Institute in 1969 under contract with the United 3 States Commission on Civil Rights. The Commission prepared periodic assessments since that year up to 1974.4 The General Accounting Office (GAO) published findings specifically on the Federal Contract Compliance Program in 1975. In addition, there were hearings before the Congressional Joint Economic Committee in September 1975, and seven oversight hearings before the Equal Opportunity Subcommittee of the House 5 3Richard P. Nathan, Jobs and Civil Rights, The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training. Clearinghouse Publication No. 16, April 1969. U. 4u.S. Commission on Civil Rights, The Federal Civil Rights Effort--Volume V: To Eliminate Employment Discrimination, July 1976. 5 Comptroller General of the United States, The Equal Employment Opportunity Program for Federal Non Committee on Education and Labor between March 1975 6 and June 1976. Conclusions from the Subcommittee hearings were published in December 1976. 7 Most of the major studies prepared for or by the U.S. Commission on Civil Rights have recommended the merger of OFCCP and EEOC. The implicit conclusion of the Joint Economic Committee was that nothing would be gained from the merger of two qualitatively deficient The recommendations of the GAO survey initi programs. ated in 1976 and expanded in 1977 have preliminarily concluded that a merger is necessary to eliminate 8 duplication and inefficiency. In its staff report of December 1976, the Subcommittee on Equal Opportunity recommended that authority for administering Executive Order 11246, Section 503 of the Vocational Rehabilitation Act, Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act and the Equal Pay Act be consolidated in the Equal Employment Opportunity Commission. 6 Oversight Hearings, Subcommittee on Equal Opportunities, Committee on Education and Labor, House of Representatives, Ninety-fourth Congress. 7 Subcommittee on Equal Opportunities of the Committee on Education and Labor, Staff Report on Oversight Investigation of Federal Enforcement of Equal Employment Opportunity Laws, GPO, Washington: 1976. 8. 9 Interview with GAO Survey Team, February 16, 1977. 9 Merger proponents put forth a three-pronged rationale to support their position on consolidation: (1) the Labor Department lacks the will and commitment to enforce the order; (2) a merger is the best method of maximizing the efficiency of the Federal Government's total EEO enforcement effort and the best method of eliminating any potential or apparent conflict, competition, duplication, and inconsistency between operations under the Executive Order and those under Title VII; and (3) protected groups should have a single agency to which they can turn for solving their equal employment problems. This chapter examines that rationale and sets forth findings and recommendations. A. The Will or Commitment to Enforce Equal As evidence of an apparent incapability of the Labor Department to enforce or otherwise effectively administer equal opportunity requirements, the fact most often pointed to is that since being placed in the Department in 1965, OFCCP has been instrumental in bringing about only a negligible number of sanctions against Government contractors. 10. 10 Ibid, p. 10, The Federal Civil Rights Enforcement Effort--1974, page 637; Nathan, Jobs and Civil However, the Department's record of enforcement Indicative of and its general administration of the Equal Pay Act run counter to this conclusion. In its most recent evaluation of the Department's enforcement efforts under the Equal Pay Act, the U.S. Commission on Civil Rights found from a review of a sample of 25 investigative reports, that all met "an acceptable level of competency"; each found violations on behalf of the complainants; almost two-thirds were settled through conciliation to pay back wages and the remaining were in litigation to recover back wages. its pattern of efficient and effective enforcement, the Commission found that in fiscal year 1974, the Wage and Hour Division received complaints against 2,864 establishments, maintained an inventory of 1,606, and referred 698 cases for court enforcement. eight percent of the cases (263) were found suitable for litigation and resulted either in law suits or out-of-court settlements. Those found unsuitable for litigation were either returned for further investigation, or the complainants or affected employees were notified that private action could be brought. In fiscal year 1973, Wage and Hour received complaints against 2,095 employer establishments. Complaint Thirty |