e. To assist in insuring that Government and dictates. 2. Affirmative Action Requirements of the Executive Order--Construction Industry Contractors Findings: Because of the peculiar characteristics of the construction industry, OFCCP has historically applied various standards and approaches to construction contractors that differ significantly from those applicable to supply and service contractors. For example, OFCCP has applied area wide affirmative action goals and procedures for the crafts and trades associated with the specialized areas of construction. The area wide standards have taken the form of Imposed or Involuntary Plans (such as the Philadelphia Plan), Voluntary or Hometown Plans, and Special Bid Conditions. Over 60 such area wide "plans" have evolved over the past 10 years. Largely because they were developed on a patchwork basis and in response to local pressures, these problems have occurred: a. b. C. d. There are no formal, comprehensive regulatory standards governing all construction contractors. There are no standards for assuring equal employment opportunity for women. Methods for computing goals and developing other standards vary from area to area. There has been undue emphasis on goal achievements as short-term results. Recommendations: a. A formal, comprehensive regulatory framework, including basic standards and enforcement procedures should be established. The standards and regulatory scheme should replace existing Hometown Plans, Imposed Plans, and Special Bid Conditions. b. There should be specific standards covering c. d. women. A single method should be developed for com- The standards should be redefined to insure the correction of employment systems as a 3. means of assuring permanent gains. Note: See 42 F.R. 41378, Aug. 16, 1977. Affirmative Action Requirements--Section 402 and Findings: Goals and timetables under the 402 and 503 programs are inappropriate due to lack of availability and because of the differing types and severity of handicapped conditions. No guidance has been provided for evaluating contractor affirmative action programs. There is no procedure under the 402 and 503 programs for the conduct of comprehensive compliance reviews. This omission hampers the correction of general discriminatory practices involving employment systems, and minimizes effective targeting. There is no adequate data collection to measure program effectiveness. Recommendations: The Section 402 and 503 programs must establish a consistent regulatory framework for both coverage and compliance requirements. The requirements must be set forth in the obligations of contractors to analyze and correct practices and systems of practices which adversely affect the protected groups. A system should be established for the targeting and conduct of compliance reviews as an addition to the current complaint system. Since the essential requirements for contractor programs under Sections 402 and 503 and the Executive Order are the same, the system for targeting and conducting compliance reviews should be merged. The basic regulatory framework and operating procedures for all OFCCP programs should be merged to the extent legally permissible and administratively possible. Remedying Discrimination 4. Findings: Although the Government has a constitutional duty to require Federal contractors to ferret out and remedy systemic discrimination as a condition both of prospective awards and of remaining eligible for Federal business, in recent years OFCCP's preaward and postaward compliance determination processes have focused almost exclusively on affirmative action goals, timetables, and procedures at the expense of the basic nondiscrimination requirements. The organization's meager staff resources and limited support services have forced the agency to preoccupy itself with the methods and techniques to administer the affirmative action standards and with systems and procedures for managing the far-flung network of compliance agencies. Thus, reasonably definitive regulatory standards and enforcement procedures for achieving compliance with the remedial obligations of the equal opportunity clause were never developed. In the interval, there evolved under Title VII and other equal opportunity laws a body of case law which is resplendent of definitions and principles which have proven useful for identifying, proving, and remedying systemic and other forms of discrimination, both generally and in virtually each employment practice area. At the same time, the Department of Labor is not bound by the peculiar limitations of other equal opportunity laws. This is true largely because the obligations of employers under the Executive Order, Section 402 and Section 503 are contractual. In addition, it is settled that the Order and the Veterans'/Handicapped Acts can and do demand a higher standard of Government contractors than Title VII imposes on employees generally. Nevertheless, applicable definitions and principles established by the courts can be greatly instructive to OFCCP in bringing about the remedial rights and benefits to which its client groups are entitled. Recommendations: OFCCP should amend or restructure its basic policies, systems, standards, and processes for the purpose of identifying and remedying affected class and related |