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OFCCP Affirmative Action Guidelines
Following is the full text of Revised Order No. 4, Affirmative Action Guidelines, issued by the Office of Federal Contract Compliance, September 30, 1972, and covering federal nonconstruction contractors and subcontractors. It reads as last amended, effective February 17, 1977.
Chapter 60-Office of Federal Con-
PART 60-2-AFFIRMATIVE ACTION
Pursuant to Executive Order 11246, sections 201, 205, 211 (30 F.R., 12319), and 41 CFR 60-1.6, 60-1.28, 60-1.29, 60-1.40, Title 41 of the Code of Federal Regulations in hereby amended by adding a new Part 60-2 to read as set forth below.
60-2.1 Title, purpose and scope.
Subpart B-Required Contents of Affirmative
60-2.10 Purpose of affirmative action
60-2.11 Required utilization analysis.
Subpart C-Methods of Implementing the
60-2.21 Dissemination of the policy.
60-2.25 Internal audit and reporting sys-
60-2.26 Support of action programs.
60-2.30 Use of goals.
AUTHORITY: 5 U.S.C. 553 (a) (3) (B); 29 CFR 2.7; Section 201, E.O. 11246, 30 FR 12319, and E.O. 11375, 32 FR 14303.
Title, purpose and scope. (a) This part shall also be known as "Revised Order No. 4" and shall cover nonconstruction contractors. Section 60-1.40 of this chapter, Affirmative action compliance programs, requires that within 120 days from the commencement of a contract each prime contractor or subcontractor with 50 or more employees and (1) a contract of $50,000 or more; or (2) Government bills of lading which, in any 12-month period, total or can reasonably be expected to total $50,000 or more; or (3) who serves as a depository of Government funds in any amount; or (4) who is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount, develop a written affirmative action compliance program for each of its establishments. A review of agency compliance surveys indicates that many contractors do not have affirmative action programs on file at the time an establishment is visited by a compliance investigator. This part details the agency review procedure and the results of a contractor's failure to develop and maintain an affirmative action program and then sets forth detailed guidelines to be used by the contractors and Government agencies in developing and judging these programs as well as the good faith effort required to transform the programs from paper commitments to equal employment opportunity. Subparts B and C of this part are concerned with affirmative action programs only.
(b) Relief, including back pay where appropriate, for members of an affected class who by virtue of past discrimination continue to suffer the
present effects of that discrimination, shall be provided in the conciliation agreement entered into pursuant to § 60-60.6 of this title. An "affected class" problem must be remedied in order for a contractor to be considered in compliance. Section 602.2 herein pertaining to an acceptable affirmative action program is also applicable to the failure to remedy discrimination against members of an "affected class." (Section 60-2.1 as last revised, effective February 17, 1977) § 60-2.2 Agency action.
(a) (1) Any contractor required by § 60-1.40 of this chapter to develop an affirmative action program at each of his establishments who has not complied fully with that section is not in compliance with Executive Order 11246, as amended (30 F.R. 12319). Until such programs are developed and found to be acceptable in accordance with the standards and guidelines set forth in set forth in §§ 60-2.10 through 60-2.32, the contractor is unable to comply with the equal employment opportunity clause. An affirmative action plan shall be deemed to have been accepted by the government at the time (the) appropriate compliance agency has accepted such plan unless within 45 days thereafter the Office of Federal Contract Compliance has disapproved such plan.
(2) The appropriate compliance agency shall notify the contractor and the Office of Federal Court Compliance when it has accepted an affirmative action plan.
(b) If, in determining such contractor's responsibility for an award of a contract, it comes to the contracting officer's attention through sources within his agency or through the Office of Federal Contract Compliance Programs or other Government agencies, that the contractor has no affirmative action program at each of his establishments, or has substantially deviated from an approved affirmative action program, or has failed to develop or implement an affirmative action program which
complies with the regulations in this chapter, the contracting officer shall declare the contractor/bidder nonresponsible and so notify the contractor, the Director, and the compliance agency unless he can otherwise affirmatively determine that the contractor is able to comply with his equal employment obligations. Any contractor/bidder which has been declared nonresponsible in accordance with the provisions of this section may request the Director to determine that the responsibility of the contractor/ bidder raises substantial issues of law or fact to the extent that a hearing is required. Such request shall set forth the basis upon which the contractor/bidder seeks such a determination. If the Director, in his/her sole discretion, determines that substantial issues of law or fact exist, an administrative or judicial proceeding may be commenced in accordance with the regulations contained in § 60-1.26; or the Director may require the compliance agency to develop the investigation or compliance review further or to conduct additional conciliation: Provided, That during any pre-award conferences, every effort shall be made through the processes of conciliation, mediation and persuasion to develop an acceptable affirmative action program meeting the standards and guidelines set forth in §§ 60-2.10 through 60-2.32 so that in the performance of his contract, the contractor is able to meet his equal employment obligations in accordance with the equal opportunity clause and applicable rules, regulations, and orders: Provided further, That when the contractor-bidder is declared nonresponsible more than once for inability to comply with the equal employment opportunity clause, the compliance agency shall promptly send to the Director a written request that enforcement proceedings be initiated pursuant to § 60-1.26. Such request for initiation of enforcement proceedings shall be sent to the Director no later than the date of issuance
OFCCP AFFIRMATIVE ACTION GUIDELINES
of the second nonresponsibility determination.
(c) (1) Immediately upon finding that a contractor has no affirmative action program, or has deviated substantially from an approved affirmative action program, or has failed to develop or implement an affirmative action program which complies with the requirements of the regulations in this chapter, the compliance agency representative or the representative of the Office of Federal Contract Compliance Programs, whichever has made such a finding, shall notify officials of the appropriate compliance agency and the Office of Federal Contract Compliance Programs of such fact. Whenever administrative enforcement is contemplated, the compliance agency shall issue a notice to the contractor giving him 30 days to show cause why enforcement proceedings under section 209(a) of Executive Order 11246, as amended, should not be instituted. The notice to show cause should contain:
(1) An itemization of the sections of the Executive Order and of the regulations with which the contractor has been found in apparent violation, and a summary of the conditions, practices, facts or circumstances which give rise to each apparent violation;
(ii) The corrective actions necessary to achieve compliance or, as may be appropriate, the concepts and principles of an acceptable remedy and/or the corrective action results anticipated;
(iii) A request for a written response to the findings, including commitments to corrective action or the presentation or opposing facts and evidence; and
(iv) A suggested date for the conciliation conference.
(2) If the contractor fails to show good cause for his failure or fails to remedy that failure by developing and implementing an acceptable affirmative action program within 30 days, the compliance agency shall
promptly send to the Director a written request for enforcement proceedings pursuant to § 60-1.26 of this chapter. If an administrative complaint is filed, the contractor shall have 20 days to request a hearing. If a request for hearing has not been received within 20 days from the filing of the administrative complaint, the matter shall proceed in accordance with Part 60-30 of this chapter.
(3) During the "show cause" period of 30 days, every effort will be made by the compliance agency through conciliation, mediation, and persuasion to resolve the deficiencies which led to the determination of nonresponsibility. If satisfactory adjustments designed to bring the contractor into compliance are not concluded, the compliance agency shall promptly send to the Director a written request for enforcement proceedings pursuant to § 60-1.26 of this chapter. (Subsections (b) and (c) as last revised, effective February 17, 1977)
(d) During the "show cause" period and formal proceedings, each contracting agency must continue to determine the contractor's responsibility in considering whether or not to award a new or additional contract. (As last amended, and effective Jan. 31, 1973.)
Subpart B-Required Contents of Affirmative Action Programs 860-2.10 Purpose of affirmative action program.
An affirmative action program is a set of specific and result-oriented procedures to which a contractor commits himself to apply every good faith effort. The objective of those procedures plus such efforts is equal employment opportunity. Procedures without effort to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate. An acceptable affirmative action program must include an analysis of areas within
which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies and, thus to achieve prompt and full utilization of minorities and women, at all levels and in all segments of his work force where deficiencies exist. (As amended, February 14, 1974)
860-2.11 Required utilization analysis.
Based upon the Government's experience with compliance reviews under the Executive order programs and the contractor reporting system, minority groups are most likely to be underutilized in departments and jobs within departments that fall within the following Employer's Information Report (EEO-1) designations: officials and managers, professionals, technicians, sales workers, office and clerical and craftsmen (skilled). As categorized by the EEO-1 designations, women are likely to be underutilized in departments and jobs within departments as follows: officials and managers, professionals, technicians, sales workers (except over-the-counter sales in certain retall establishments), craftsmen (skilled and semi-skilled). Therefore, the contractor shall direct special attention to such jobs in his analysis and goal setting for minorities and women. Affirmative action programs must contain the following information:
(a) Workforce analysis which is defined as a listing of each job title as appears in applicable collective bargaining agreements or payroll records (not job group) ranked from the lowest paid to the highest paid within each department or other similar organizational unit including departmental or unit supervision. If there are separate work units or lines of progression within a department a separate list must be provided for each such work unit, or line, including unit supervisors. For lines of
progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line. Where there are no formal progression lines or usual promotional sequences, job titles should be listed by department, job familles, or disciplines, in order of wage rates or salary ranges. For each job title the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must be given: Blacks, Spanish-surnamed Americans, American Indians, and Orientals. The wage rate or salary range for each job title must be given. All job titles including all managerial job titles, must be listed.
(b) An analysis of all major job groups at the facility, with explanation if minorities or women are currently being underutilized in any one or more job groups ("job groups" herein meaning one or a group of jobs having similar content, wage rates and opportunities). "Underutilization" is defined as having fewer minorities or women in a particular job group than would reasonably be expected by their availability. In making the utilization analysis, the contractor shall conduct such analysis separately for minorities and women.
(1) In determining whether minorities are being underutilized in any job group the contractor will consider as least all of the following factors:
(1) The minority population of the labor area surrounding the facility;
(11) The size of the minority unemployment force in the labor area surrounding the facility;
(111) The percentage of the minority work force as compared with the total work force in the immediate labor area;
(iv) The general availability of minorities having requisite skills in the immediate labor area;
(v) The availability of minorities having requisite skills in an area in which the contractor can reasonably recruit;
OFCCP AFFIRMATIVE ACTION GUIDELINES
(vi) The availability of promotable and transferable minorities within the contractor's organization;
(vii) The existence of training institutions capable of training persons in the requisite skills; and
(viii) The degree of training which the contractor is reasonably able to undertake as a means of making all job classes available to minorities.
(2) In determining whether women are being underutilized in any job group the contractor will consider at least all of the following factors:
(1) The size of the female unemployment force in the labor area surrounding the facility;
(1) The percentage of the female workforce as compared with the total workforce in the immediate labor area;
(1) The general availability of women having requisite skills in the immediate labor area;
(iv) The availability of women having requisite skills in an area in which the contractor can reasonably recruit;
(v) The availability of women seeking employment in the labor or recruitment area of the contractor;
(vi) The availability of promotable and transferable female employees within the contractor's organization;
(vii) The existence of training institutions capable of training persons in the requisite skills; and
(viii) The degree of training which the contractor is reasonably able to undertake as a means of making all job classes available to women. (As amended, July 12, 1974)
§ 60-2.12 Establishment of goals and
(a) The goals and timetables developed by the contractor should be attainable in terms of the contractor's analysis of his deficiencies and his entire affirmative action program. Thus, in establishing the size of his goals and the length of his timetables, the contractor should consider the results which could reasonably be expected from his putting forth every good faith effort to make his overall