In

$10,593,770 in underpayments to 18,732 workers. vestigations initiated independently of complaints

revealed $86,776,992 in underpayments to 12,055 employees. Over 400 cases were referred for court suits of which 210 or 50 percent were either litigated or settled out of court. Lawsuits and out-of-court

settlements resulted in wage settlements of $16,934,967

in 1974 and $10,914,967 in 1973. Further, of 745 legal actions initiated under the Equal Pay Act by the Department between July 1965 and November 1974, 395 were settled favorably, 70 were litigated successfully, and 222 were still pending. Thus, in only 53 11 of 523 cases disposition was no relief obtained.

The Task Force finds that deficiencies in enforcing Executive Order No. 11246 are not the result of an inherent incapability on the part of the Labor Department. Rather, as detailed in the succeeding chapters of this report, the Task Force finds that the difficulty facing the Federal Government in developing and strengthening a contract compliance program which is a vigorous and effective law enforcement institution lies primarily in the program's fragmented structure and its inadequate regulatory scheme.

11

Federal Civil Rights Enforcement Effort--1974,

The program's full enforcement potential cannot be achieved under a fragmented structure in which OFCCP must rely upon 16 autonomous Federal agencies of coordinate rank for implementation activities. The fragmentation of compliance and enforcement responsibility combined with the regulatory scheme creates undue latitude for administrative discretion at each level of the structure, and at each major decision point of the enforcement process. Consequently, there is no assurance that compliance decisions are not tempered by political, procurement, personal, or other competing or conflicting considerations. Yet all proposed merger legislation drafted to date, including the "Equal Employment Opportunity Act of 1977," would merely reassign to EEOC the existing authority and responsibility of the Secretary of Labor under the Executive order, leaving intact the source of the infirmities that the proposed legislative enactments are designed to cure. The consolidation proposal of the U.S. Commission on Civil Rights would abolish the Executive Order committing each of its unique features, and place its function into a new anti-discrimination

12

authority, the National Employment Rights Board, which

would also replace EEOC.

13

Both proposed reform efforts appear misdirected. Since (as the succeeding chapters show) the primary enforcement weakness is inherent in the program's fragmented structure and regulatory scheme, any corrective measures, regardless of the location of the program, should be directed toward the consolidation of policy and line operations within the Executive Order Program and toward the design of a regulatory scheme designed to lead impersonally and ineluctably toward equal employment opportunity or legitimate contract passovers and sanction procedures.

The Task Force further finds that most contractors tend to achieve compliance through conciliation rather than risk ineligibility for Government contracts. With the exception of the Timken Roller Bearing Company, which successfully contested a Government debarment order in 1976, the 16 contractors which have been debarred from Government contracts have been employers who, for the most part, did not have a substantial dollar volume of contracts. Thus, irrespective of the degree of reform, the imposition of sanctions will be largely confined

to those employers for whom the cost of complying with

13

the requirements of the Order exceeds the benefits to

be derived from Government business.

Moreover, since the requirements of the order, like those of other enforcement programs, provide that contractors be given a reasonable opportunity to achieve compliance through conciliation prior to the imposition of sanctions, and since contractors tend to arrive at compliance settlement rather than face loss of Government business, the use of contract penalties is an inappropriate criterion for measuring the success of the Executive order programs. An appropriate yardstick would be the number of new opportunities created for

14

14It is apparently not widely recognized that

section 208 (b) of Executive Order No. 11246 expressly prohibits contract debarment without first affording the contractor an opportunity for a hearing and that section 209 (a) similarly prohibits a contract cancellation, termination, or suspension without a reasonable opportunity to achieve compliance through conciliation. For example, U.S. Civil Rights Commission, Federal Civil Rights Effort--1974, on p. 664, recommended that OFCCP issue a memorandum "... affirming that sanctions must be commenced whenever a violation of the Executive Order is discovered." The assumption that contract sanctions can and should be undertaken immediately upon discovery of a violation pervades most commentaries on the Executive order program, including those upon which current proposed legislation and executive reorganization is based. In fact, the removal of the Executive order's proscription against contract sanctions without an opportunity for conciliation and/or a hearing would raise serious constitutional and legal questions. See Gonzalez v. Freeman, 334 F. 2d 570 at 574 (D.C. Cir. 1964); Horne Bros. v. Laird, 463 F. 2d 1268 (D.C. Cir. 1972); and Myers & Myers v. U.S. Postal Service, 527 F. 2d 1252,

minorities and women through affirmative action

programs and conciliation agreements.

15

Contract

sanctions should not be equated with litigation settlements under Title VII but rather with those penalties authorized by the courts for violations of court ordered remedies, consent decrees, or Title VII con16 ciliation agreements.

Duplication, Conflict, Competition, and Inconsistency The areas in which duplication, conflict, and inconsistency between the Executive Order Program and the EEOC occur are in compliance reviews, complaint investigations, and settlements involving the same contractor/respondent, and in subject matter guidelines and regulations. The fact that EEOC receives, on the average, some 65,000 charges per year and maintains a backlog of approximately 128,000 charges virtually assures a pending Title VII action against a great many contractors scheduled for a compliance review

15yet, until such time as OFCCP develops a system for evaluating its performance on the basis of new opportunities created for minorities and women, as a result of its affirmative action and remedial requirements criticism of the limited use of sanctions will be somewhat justified.

16

At the close of fiscal year 1976 EEOC had sought court litigation in seven instances for failure of respondents to comply with conciliation agreements and in four instances for failure to comply