Whether the implementing employers have been induced primarily by the administrative apparatus of the Executive Order or by potential liabilities under Title VII or by an enlightened sense of social responsibility, there can be little doubt that OFCCP's affirmative action program concepts, principles, and procedures have accounted for significant, visible improvement in the recruitment, hiring, placement, and promotion of minorities and women into career areas and specific jobs from which they were largely excluded 3 in the years prior to 1971. The office should now take steps to simplify the administration of the re4 quirements and assure more successful results. 3. The fact that preferential quotas have been upheld in several court circuits has raised the question as to whether affirmative action program goals and timetables under the Executive Order have been rendered superfluous. However, it should be noted that under the AAP regulations, the goals and the timetables requirement is triggered by a simple disparity between labor force availability and work force participation. As has been pointed out, "virtually all cases (in which the courts have ordered remedial quotas) involve statistical disparities." See Schlei and Grossman, Employment Discrimination Law, Bureau of National Affairs, Washington, D.C., 1976, p. 1146. Further the AAP obligation is not conditioned upon a finding of discrimination and to that extent it is selfadministering rather than dependent upon a case-by case investigation. Notwithstanding their improvement needs, the affirmative action program regulations of CFR 60-2 as described on the preceding pages of this chapter would appear to raise questions regarding the accuracy of the assertion: "... OFCCP's guidelines ... are the III. Problems and Recommendations Success Measurement The One of the most critical defects in the administration of the affirmative action program requirements is the absence of a system which enables OFCCP to measure the success of these program requirements. Task Force recommends that OFCCP cure that defect by incorporating in the affirmative action program regulations the requirement for a detachable coding sheet which summarizes data contained in the body of the. program concerning utilization rates, projected vacancies, projected goals and anticipated annual rates of achievements, plus accomplishments during the preceding year, to be submitted annually. OFCCP's annual compilation of these data would permit the Government and the public to evaluate the success of the Federal Contract Compliance Program on the basis of the number of new employment opportunities achieved for minorities and women rather than solely on the basis of the number of contract debarments, cancellations, terminations, and other sanction imposed. 4 (cont.) See R. J. Associates, Inc., Development Draft of a Proposed Organizational Plan for a Comprehensive Federal Employment Agency--with Background and Justification. Not only do those regulations provide reasonably definitive guidance, but, unlike guidelines, The data system would result in cost savings to the Government and to contractors. Further, since the data to be contained in the summary coding sheet would be confined to those derived from the affirmative action program each contractor must develop, and since contractors have an existing obligation under 60-1.40 to update and compile a report of the program's results annually, the new requirement would not impose a substantial added administrative burden on Federal contractors. Availability Data The absence of reasonably precise availability data and a simple formula by which they can be used to determine the need for and level of goals is also a critical problem. The quality of the data provided by State and local employment security agencies varies from locality to locality and data are often outdated. In addition, the data tend to take into consideration only those minorities and women with actual skills who are already employed. Further, the data are often grouped into occupations. compliance agencies, is that goals and timetables established by Federal contractors are not consistent One result, according to the with the rate at which minorities and women are actu Informal surveys of Government compliance officials, contractors, and constituency groups have disclosed the following problems: 1. 3. Availability data do not adequately measure the contractor's own promotable employees, and fail to recognize the internal training or other activities that contractors can undertake to increase supply. 2. Availability data often reflect only those minorities and women currently participating in certain occupations rather than measuring those who are qualified to participate. Statistics are of only ancillary assistance when estimating current availability of women for nontraditional industrial jobs, wherein societal inhibitions may have been more of an impediment to employment than actual skills 4. 5. or availability. Contractor concentration on statistical evi- The criteria for determining availability not adequately measure the availability of In view of the above, the Task Force recommends the following improvements: 1. 2. 3. The Department of Labor should employ demographers to study availability data, and should set benchmarks for industrial job groups by labor market areas. If supplemented by the employer's own promotion and training, such data would simplify the administration of the goals and timetables requirement for Government officials and contractors alike. Availability data should be supplemented by the contractor's estimate of the results of its affirmative recruitment and training activities. Those criteria used for measuring availability which do not readily translate into goals should be either modified or discarded if they do not materially increase or decrease the estimated level of availability. CFR 60-2.11(c) of the regulations provides that goals need be established only in those job groups for which the job group analysis and the availability analysis disclose that minorities and women are under utilized. Two problems with this approach have been |