Direct Federal: Not included in building permit report from Phila- Direct Federal: Is included in city and State reports because of Federally assisted: Not included in State or city report because it does not require a building permit (not construction of a building). It is included in the OFCC report because, such construction includes some of the building trade crafts--. Grand total for all Federal agencies---. Mr. JERRIS LEONARD, Assistant Attorney General, U.S. Department of Justice, Washington, D.C. 61, 734, 920 155, 875, 829 150,000 23, 278, 000 241, 038, 749 JUNE 24, 1969. DEAR MR. LEONARD: As you will recall, the Comptroller General of the United States in a decision of November 18, 1968 (B-163026, 48 Comp. Gen.) raised certain reservations regarding the Philadelphia Pre-award Plan which had been put into effect by the Philadelphia Federal Executive Board in an effort to achieve compliance with Executive Order 11246. The Office of Federal Contract Compliance, along with this Office, has been working to revise the Plan to meet the reservations noted by the Comptroller General's Office. We have had informal consultation with staff members of that Office as well as other interested agencies, and discussions with members of your staff in formulating a revised Plan. It is my opinion that the proposed Plan, which is attached, meets the reservations raised by the Comptroller General and is consistent with the requirements of the Executive Order and is not violative of Title VII of the Civil Rights Act of 1964. I would appreciate your views regarding this matter. Sincerely, L. H. SILBERMAN, Solicitor of Labor. Mr. LAURENCE SILBERMAN, Department of Labor, Washington, D.O. DEAR MR. SILBERMAN: Please refer to your letter of June 24, 1969 requesting our views as to whether the proposed "Revised Philadelphia Plan for compliance with equal employment opportunity requirements of E.O. 11246 for federally involved construction" is consistent with the requirements of E.O. 11246 and Title VII of the Civil Rights Act of 1964. We have reviewed the proposed plan. We find it to be consistent with the Executive Order, the regulations issued pursuant thereto, and with the Civil Rights Act of 1964. Sincerely, JERRIS LEONARD, Assistant Attorney General, Civil Rights Division. LEGAL MEMORANDUM AUTHORITY UNDER EXECUTIVE ORDER 11246* This is in response to the request of the Comptroller General for a memorandum on the legal authority of the Executive Order as well as the Philadelphia Plan promulgated thereunder. I. The Executive has the authority and the duty to require employers who do business with the Government to provide equal employment opportunity. A. The Executive's authority has been long exercised and the validity of executive orders issued pursuant thereto has been sustained by all legal opinions and court decisions.-The authority of the President to issue executive orders requiring fair employment practices by Government contractors has been exercised for over 28 years. The first executive order requiring equal employment opportunity of Government contractors was issued in 1941,1 and each succeeding President has continued such executive orders.2 The validity of these executive orders has been upheld by opinions of the Attorney General' and the Comptroller General' as well as the several courts which have dealt with such issue. We are aware of no court decision questioning the Executive's authority in this area. In litigation involving the status of these executive orders, the courts, both before the enactment of the Civil Rights Act of 1964" and afterwards,' have held that such orders be accorded the force and effect of a statute enacted by Congress. B. The Fifth Amendment of the Constitution requires the Federal Government to ensure equal opportunity in employment on all projects financed, directly or indirectly, by Government funds.-The courts have held that when Governments, both Federal and State, assist or enter into contractual arrange Office of the Solicitor, U.S. Department of Labor. 1 Executive Order 8802, June 25, 1941, 6 F.R. 3109. 2 Executive Order 10308, Dec. 3, 1951, 16 F.R. 12303; Executive Order 10479, Aug. 13, 1953, 18 F.R. 4899; Executive Order 10557, Sept. 9, 1954, 19 F.R. 5655; Executive Order 10925, Mar. 6, 1961, 26 F.R. 1977; Executive Order 11114, June 22, 1963, 28 F.R. 6485; Executive Order 11246, Sept. 25, 1965, 30 F.R. 12319; and Executive Order 11375, Oct. 17, 1967, 32 F.R. 14303. 842 Op. Attorney General, No. 21 (1961). 40 Comptroller General 592 (1961); and 42 Comptroller General 692 (1963). Farmer v. Philadelphia Elec. Co., 329 F. 2d 3 (3 Cir. 1964); Farkas v. Texas Instrument Co., Inc., 375 F. 2d 629 (5 Cir. 1967); U.S. v. Local 189, U.P.P. and Crown Zellerbach Corp., 282 F. Supp. 39 (E.D. La., 1968); and Weiner v. Cuyahoga Comm. Coll. Dist., 238 N.E. 2d 839 (Ohio Com. Pl. 1968), 19 Ohio St 2d (Ohio Sup. Ct., July 2, 1969). Farmer v. Philadelphia Elec. Co., supra. Farkas v. Texas Instr., Inc., supra, and U.S. v. Local 199, supra, cited with approval in Heat and Frost Insulators v. Vogler, 407 F. 2d 1047 (5th Cir. 1969). ments with private parties, the private party must meet the constitutional standard of equal opportunity. The United States Supreme Court has held that by failing to take action against a discriminatory business with which a State had a contract, the State not only made itself a party to the discrimination but it "elected to place its power, property and prestige behind the admitted discrimination. The State has so far inserted itself into a position of interdependence with Eagle [the business] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment." On the subject of discrimination on public works projects, a U.S. district court has held that a State could not enter into construction contracts with employers who had exclusive hiring hall agreements with unions that discriminated in admission to membership or in referral to jobs.' Although both of the above cases involved actions by State Governments, the same theory is applicable to the Federal Government since the Supreme Court has held that discrimination which violates the equal protection clause also violates the due process clause of the Fifth Amendment.10 More recently and directly, in a case involving discrimination by a union in admission to membership and an appren ticeship program related to the construction of a Federal building, a U.S. district court found: "The Federal government through two of its agencies and the State through one of its agencies, is at the very least passively assisting, aiding and making it possible for the defendant Union and Joint Committee to realize and perpetuate their discriminatory practices. The defendant agencies in practice and in effect are permitting the Union and Joint Committee to practice racial discriminaton and by so doing if not directly at least indirectly are denying plaintiffs their constitutional rights.' In the area of assistance from the Federal Government, the Court of Appeals for the Fourth Circuit ruled unconstitutional that provision in the Federal HillBurton Act permitting Federal assistance to private but segregated hospitals." Therefore, Government assistance which subsidizes private discrimination, even pursuant to Congressional directives, is unconstitutional and the act of Congress directing such assistance has likewise been held unconstitutional. Under the reasoning of these cases, Government contracts or assistance to private employers who discriminate would constitute unconstitutional discrimination by the Government. The Executive has an obligation to ensure that no action is taken by the Federal Government which violates the Constitution by subsidizing an employer who discriminates. The failure of the Federal Government to require a Government contractor to remedy the present effects of past discriminatory practices would render the Government vulnerable to a suit that it had breached its Fifth Amendment obligations. C. The Executive has the duty of faithfully executing the laws of the United States, including the U.S. Constitution.-Section 3, Article II of the U.S. Constitution provides, in pertinent part, that "[the President] shall take Care that Laws be faithfully executed." and in the Presidential Oath of Office, he swears "to the best of my Ability, [to] preserve, protect and defend the Constitution of the United States." The requirement of the Constitution that the President faithfully execute the laws of the land certainly includes the guarantees of the Constitution. As discussed in B. above, the due process clause of the Fifth Amendment obligates the Government not to expend monies in enterprises which discriminate on the basis of race.14 8 Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961). 9 Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967). 10 Bolling v. Sharpe, 347 U.S. 497 (1954). 11 Todd V. Joint Apprenticeship Committee, 223 F. Supp. 12. 22 (N.D. Ill. 1963), vacated as moot without commenting on the merits, 332 F. 2d 243 (7th Cir. 1963), cert. den. 380 U.S. 917 (1964). 12 Simkins v. Moses H. Cone Memorial Hosp., 323 F. 2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964). 13 U.S. Constitution, Article II, section 1. 14 See footnotes 8 through 12. The Thirteenth Amendment has also been suggested as the source of an Executive responsibility in a commentary on the Supreme Court's decision in Jones v. Alfred H. Mayer Company, 392 U.S. 409 (1968). See Kinoy, Constitutional Right of Negro Freedom Revisited, 22 Rutgers Law Rev., 537, 538, 543-44. See also. Kohl. The Civil Rights Act of 1866, its Hour Come Round at Last, 55 Va. Law Rev., 272 (1968); Note. 82 Harv. Law Rev. 95, 103 (1968): Brooke. Smedley, Kinoy, and Ervin, NonDiscrimination in the Sale or Rental of Real Property: Comments on Jones v. Alfred H. Mayer Co., and Title VIII of the Civil Rights Act of 1968, 22 Vand. Law Rev., 455 (1969). D. In addition to his duty under the Fifth Amendment, the Executive, through his control over the Government's procurement process, has the authority to effectuate public policy and achieve social objectives.-It has been recognized that broad social objectives may appropriately be made requirements of doing business with the Government. Thus, the Supreme Court has held that Congress can "impose obligations upon those favored with Government business . to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment." "15 This does not mean that only by explicit legislation may such social objectives be set forth in Government procurement regulations. With respect to Executive Order 10925, the predecessor of the current Order, the Fifth Circuit has stated that the Executive has statutory authority from the broad authority conferred by Congress to the President to "prescribe such policies and directions . . as he shall deem necessary to effectuate . . . an economical and efficient system for . . . the procurement and supply of property and services" 16 In a decision upholding the requirements of the Cleveland Plan of the U.S. Department of Labor's Office of Federal Contract Compliance," the Ohio Supreme Court aptly framed the issue thusly: "The issue at the heart of this dispute is whether the policies of the United States and the State of Ohio against discriminatory employment practices may be positively enforced by a public body through the medium of public improvement contracts. The public policy is clearly formulated in the legislation proscribing racial discrimination in employment. Public construction contracts requiring employment in their performance must contain provisions by which the contractor promises that he will not engage in any discriminatory hiring practice, but more important, both state and federal executive orders implementing -civil rights legislation enjoin upon public contractors affirmative duties with respect to seeking, hiring, training, promoting and paying employees, and in regard to their dealings with subcontractors, unions and employment agencies, all to the end that nondiscrimination in the performance of the contract will be assured." (Citations omitted.) 18 In this case, the Cuyahoga Community College District was awarding a construction contract which was financed, in part, by the Federal Government. Pursuant to the OFCC Cleveland Plan, which applied to both Federal and Federally-assisted construction contracts in the Cleveland area, construction contractors were required to submit an acceptable affirmative action program, including "manning tables" covering minority employment on the project, prior to the award of such a contract. The low bidder for heating, ventilating and -air conditioning work on the Cleveland campus submitted an unacceptable affirmative action program. Therefore, it was decided to award that contract to the next lowest bidder, who had submitted an acceptable program. The low bidder then brought suit against the college in the State Court of Common Pleas of Cuyahoga County to enjoin the college from awarding the contract to anyone other than the lowest bidder. The Ohio court, affirming the judgment of the two lower courts, resolved this issue by holding that it was proper to deny a contract to the low bidder for failure to comply with the equal employment opportunity requirements. In so ruling, the court stated: "In addition to economics as a reason for requiring public contractors to assure nondiscriminatory performance, the strong moral commitment of both state and federal governments to fair employment practices is reflected in their respective legislation. A government which has declared discriminatory employment practices unlawful should not then finance them indirectly by binding only its direct contractor, and not the entire contract performance, to a promise of attempted compliance. We conclude that the capacity to assure a performance which complies with antidiscrimination laws is reasonably a part of the standard of a best or responsible bidder on a contract involving the expenditure of public 15 Perkins v. Lukens Steel, 310 U.S. 113, 128 (1939). 18 Farkas v. Texas Instr. Inc., supra at 632, footnote 1. 17 The OFCC Cleveland Plan, issued March 15, 1967, required the apparent low bidder to submit an acceptable affirmative action program before the award of Federally-assisted construction contracts in the Cleveland area. To be acceptable, the affirmative action program was required to include "manning tables" which would result in assuring that there would be minority group representation in all trades and in all phases of the work on the Federally-financed construction project. 18 Weiner v. Cuyahoga Comm. Coll. Dist., supra. |