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Chapter 20. CIVIL RIGHTS DATA
The United States is committed by its Constitution and the laws of Congress to securing for all citizens the right to participate in, and benefit from, the full range of opportunities available in the Nation. Legislation of the past decade has focused on the equal treatment of citizens regardless of their race, ethnicity, sex, age, and/or handicapping conditions. The Federal role is two-fold. On a general level, the Government must ensure that citizens do not experience discrimination in gaining access to opportunities available in either the public or the private sector. On a more specific level, the Government must enforce a variety of laws, court orders, Executive orders, and regulations concerned with the equitable distribution and delivery of federally assisted or sponsored services to eligible beneficiaries.
Despite the existence of equal opportunity legislation, and initiatives within various Federal programs to ensure that the laws are applied, unequal treatment persists. While there are many differing judgments concerning both the sources and the degree of discrimination which exists, it is clear that the ad hoc, diverse, and even passive civil rights enforcement systems of the various Federal agencies have not been sufficiently comprehensive either to measure or to eliminate inequitable distribution of Federal assistance. No one agency of the Federal Government is assigned the responsibility to serve as a focal point for civil rights activities. For example, the Equal Employment Opportunity Commission is responsible for enforcing title VII of the Civil Rights Act of 1964, which prohibits discrimination in public and private employment, the Office of Federal Contract Compliance Programs oversees the application of Executive orders which prohibit discrimination in employment by government contractors, and additional Federal units have been directed to monitor civil rights compliance in other areas of employment. Added to this dispersion of responsibility are the compliance activities of the Department of Housing and Urban Development, the Department of Justice, and the Department of Health, Education, and Welfare.
The current fragmentation of Federal civil rights initiatives stems directly from the diverse origins of civil rights requirements in the executive, legislative, and judicial branches. The problems caused by this fragmentation are further exacerbated by the sensitive and dynamic nature of the civil rights environment. Judicial decisions, and statements by key government officials, can influence the direction or emphasis of enforcement activities with a concomitant effect on information needs. The net result of this historical development is the presence of a multitude of overlapping requirements and uncoordinated activities which tend to frustrate both those seeking to comply with the intent and purpose of the laws and those seeking to secure enforcement.
Those Federal agencies which have attempted to design and implement civil rights data collection programs have in general tried to ensure that discrimination is absent in public and private agencies receiving Federal grants and contracts and, to a lesser degree, to ensure that Federal program resources are distributed equitably. Given the absence of specific government-wide goals and priorities for civil rights initiatives at the Federal level, it is not surprising to find that many agencies have failed to develop or execute viable, agency-wide plans for the collection and use of civil rights data.
Even the agencies requiring the maintenance and provision of civil rights data by Federal resource recipients have given inadequate consideration to the questions of who should use the data and how the information should be used. There is no systematic methodology employed either within or across the several agencies for identifying eligible beneficiaries, determining whether those eligible are participating equally (by race, sex, ethnicity, etc.) in the services available, or assessing the degree to which those served are receiving the intended program benefits without disparities which could be attributed to discriminatory practices.
While it may appear inappropriate to recommend a definitive program of recordkeeping, data collection, and information use in the absence of government-wide goals and priorities for agency civil rights actions, it is reasonable, based on the current
port of the guaranteed rights by ensuring equitable treatment of all potential beneficiaries. Employment
Equal opportunity in employment is mandated by a host of Federal enactments, including statutes, judicial decisions interpreting the Constitution, and Executive orders and regulations. Taken together, they constitute a comprehensive ban on job discrimination, covering all Federal, State, and local government jobs and nearly all private employment. Executive Order No. 11478 (issued August 8, 1969) and the 1972 amendments to title VII of the Civil Rights Act of 1964 extended to Federal employees equal opportunity regardless of race, color, religion, sex, or national origin, and required promotion of “the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency." The Civil Service Commission is directed to provide leadership
legislation, Executive orders, and court rulings, to suggest at least a minimum set of initiatives to be undertaken and problems to be addressed by the U.S. Federal Statistical System. These initiatives stem from the general assumptions that the Federal agencies must: 1. Ensure that individuals do not experience
discrimination in employment, housing, education, voting, the administration of justice,
and access to places of public accommodations; 2. Establish that the recipients of Federal
resources are in compliance with civil rights
laws; 3. Ensure through planning that Federal program
resources will be distributed equitably to all
eligible program beneficiaries; and 4. Determine through evaluation that benefits
were distributed equitably and that the treatments were provided on a non
discriminatory basis. The data collection and analysis activities which would be required to address this seemingly limited set of activities represent a level of effort which is an order of magnitude greater than current or even anticipated resources would allow. To determine by way of actual head counts the total numbers of persons eligible for benefits, let alone their characteristics and needs, would require data collection programs of extremely high dollar cost, with an exceptionally heavy burden of public reporting. Despite the fact that a less than ideal solution to these problems must be accepted, it is clear that much can and should be done at the Federal level to improve data collection and analysis efforts which must be used as a primary vehicle in meeting the letter and the intent of civil rights legislation. There must be an expanded government-wide effort directed toward achieving an appropriate balance between information needs, resource availability, and respondent burden.
'The description of agencies and programs involved in Federal equal employment activities reflects the status of these initiatives in the spring of 1978. It should be noted that President Carter has submitted to the Congress a plan to reorganize the Federal Government's equal employment opportunity enforcement activities. Under this plan, the Equal Employment Opportunity Coordinating Council would be abolished, and the Equal Employment Opportunity Commission would become the principal agency for fair employment enforcement, with responsibility to develop substantive equal employment standards applicable to the entire Federal Government, standardize Federal data collection procedures in this area, create joint training programs, establish requirements to ensure that information is shared among the enforcement agencies, and develop government-wide complaint and compliance review methods. In addition, the proposed reorganization would transfer responsibility for ensuring equal employment opportunities for Federal employees from the Civil Service Commission to the EEOC, and for enforcing the Equal Pay Act and the Age Discrimination in Employment Act from the Department of Labor to the EEOC. Finally, the President has proposed an amendment to Executive Order No. 11246 to terminate the authority of 11 Federal agencies currently responsible for ensuring compliance by Federal contractors, and to consolidate this authority in the Office of Federal Contract Compliance Programs.
This consolidation would establish accountability and promote consistent standards, procedures and reporting requirements, and relieve many contractors of the burden of being subject to multiple agencies. The proposed reorganization will not affect the Attorney General's responsibility to enforce title VII against State or local governments, or to represent the Federal Government in suits against Federal contractors and grant recipients. Further, the responsibility for enforcing grant-related equal employment provisions will remain with the agencies administering the grant programs. The adoption of the Administration's reorganization plan will clearly eliminate certain organizational impediments to the development of consistent enforcement policies, and information requirements, in the area of equal employment opportunity. The questions and concerns to be addressed in the area of compliance data described in the following section on policy recommendations and steps to be taken, however, are expected to have equal relevance under the proposed structure.
Agencies and Programs The various civil rights laws, Executive orders, and judicial decisions of the past decade provide broad protections against discrimination in virtually every aspect of life—in education, employment, housing, voting, administration of justice, access to places of public accommodation, and participation in the benefits of federally assisted programs. Some of the remedies require the aggrieved individual to take the initiative in securing his own rights. In most cases, however, responsibility is placed on Federal Departments and agencies to act affirmatively in sup
and guidance to other executive departments and agencies in the conduct of equal employment opportunity programs. The Commission is also directed to review and approve agency affirmative action plans on an annual basis and routinely to evaluate agency equal employment opportunity programs.
The Equal Employment Opportunity Act of 1972 prohibited employment discrimination by State and local governments and gave the Department of Justice the authority to bring suit where there was an indication of a pattern and practice of discrimination by State and local government employers. Under the provisions of the Intergovernmental Personnel Act of 1970, the Civil Service Commission exercises additional civil rights authority with regard to State personnel through its administration of the Merit System Standards which require that State employees administering certain federally aided programs be selected, promoted, and compensated according to a federally approved, State-administered system. The Civil Service Commission relies on data collected by the Equal Employment Opportunity Commission concerning the race, ethnicity, and sex of State and local employees to ensure compliance with this requirement.
Presidential authority to require equal employment practices of Government contractors has been exercised for more than 30 years through successive Executive orders. Executive Order 11246, as amended by Executive Order No. 11375, prohibits discrimination in employment on the basis of race, creed, color, national origin or sex, and requires Federal contractors to take affirmative action to ensure that equal employment principles are followed in personnel practices at all company facilities. In addition, section 503 of the Rehabilitation Act of 1973 assigns the Department of Labor responsibility for ensuring that Federal contractors do not discriminate against handicapped persons in their employment practices. The Secretary of Labor is mandated to administer and oversee an extensive program to eliminate employment discrimination by government contractors, subcontractors, and construction contractors working on Federal and federally assisted construction projects.
The Secretary of Labor has delegated the authority for carrying out the responsibilities under the orders to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor. The Director of OFCCP has delegated some authority to enforce contract compliance regulations to contracting Federal agencies, but this authority is to be exercised only under the Director's general guidance and control. The Executive orders empower the Secretary of
Labor to require contractors with Federal contracts including the equal opportunity clause to submit all information and reports concerning their employment policies, programs, and practices which are deemed necessary to determine compliance. OFCCP regulations, however, require only that contractors report regularly the number of employees, by race, sex and ethnicity, in nine major job categories. This reporting requirement is limited to those firms with: (1) contracts of $50,000 or more and with 50 or more employees, and (2) 100 or more employees; it does not apply to any facilities of State and local governments except medical and educational facilities. By the same token, there is no OFCCP requirement for the filing of regular reports on affirmative action activities, although records must be maintained and made available on request.
The Equal Pay Act (EPA), requiring that men and women receive equal pay for equal work, is administered by the Department of Labor. Provisions of the EPA apply to all employers who are engaged in commerce or in the production of goods for commerce, to all public agencies, and to any retail or sales establishment. To enforce the EPA, the Department of Labor may investigate possible violations of the law, conciliate or negotiate a settlement where violations are found, and litigate those instances where efforts to secure compliance have failed. To perform investigations, the Department of Labor may examine and take copies of documents such as payrolls, records of employment, personnel evaluations, and any other employee records that may have a bearing on an investigation.
The Equal Employment Opportunity Commission (EEOC) is the Federal agency responsible for enforcing title VII of the Civil Rights Act of 1964, prohibiting discrimination in employment. As amended, the act provides EEOC with authority over private employers, employment agencies, labor organizations, joint apprenticeship committees, State and local governments, and educational institutions. Under the act, employers are forbidden to refuse to hire, or to discharge individuals, on the basis of race, color, religion, sex, or national origin. Further, employers may not discriminate against employees with respect to compensation, terms, conditions, or privileges of employment. To enforce these and other provisions of the Civil Rights Act, EEOC may investigate charges of discrimination, attempt to resolve them through conciliation, and file and prosecute lawsuits where conciliation efforts fail.
EEOC also has the responsibility of prescribing the recordkeeping requirements for those subject to the Civil Rights Act. Each employer and labor organiza
tion having 100 or more employees or members must alone resolved. The assignment of authority to a prepare and submit to EEOC, on a yearly basis, an number of agencies has resulted in the issuance of Employer Information Report Form or a Local inconsistent policies and the development of Union Equal Employment Report. These reports independent and uncoordinated compliance recontain information regarding the racial, ethnic, and porting programs. This fragmented administrative sex make-up of the work force. EEOC is expected to procedure has resulted in duplication of effort, compile this information and issue periodic reports inconsistent findings, and failure to meet many of the summarizing the data. Unfortunately, few reports purposes of the civil rights legislation. have been published or used on a timely basis. Under the provisions of the Age Discrimination in
Housing Employment Act of 1967, employers are prohibited Executive Order No. 11063, issued in November from refusing to hire, or discharging individuals, or 1962, constituted the first significant Federal otherwise discriminating against employees with requirement on nondiscrimination in housing. Under respect to their compensation, terms, conditions, or this order, discrimination is prohibited in the sale or privileges of employment because of their age. The leasing of all federally assisted housing. The order's law further provides that it is unlawful for an prohibition also extends to lending practices insofar employer to limit, segregate, or classify his employees as those practices relate to loans insured or in any way which would deprive or tend to deprive guaranteed by the Federal Government. any individual of employment opportunities or otherwise adversely affect his status as an employee,
The responsibilities of the Department of Housing because of such individual's age. Similar provisions
and Urban Development (HUD) were significantly of the act, which covers persons who are at least 40
expanded to include private, nonfederally assisted but less than 65 years of age, are applicable to
housing under the provisions of title VIII of the Civil employment agencies and labor organizations. The
Rights Act of 1968 (the Federal Fair Housing Law). Secretary of Labor is empowered to make
As amended, title VIII prohibits discrimination investigations and to require the keeping of records
because of race, color, religion, national origin, or sex necessary or appropriate for the administration of
in the sale or rental of most housing, and makes it this act. The Wage and Hour Division in the
unlawful to discriminate in advertising the sale or Employment Standards Administration is
rental of housing, the financing of housing, or in the responsible for enforcement of the Age
provision of real estate brokerage services. HUD is Discrimination in Employment Act, and for re
responsible for the overall administration of this title, porting annually to the Congress on the status of
and is specifically charged with investigating litigation and progress with respect to the provisions
complaints of discrimination. of the law. The Office of Administrative Management produces statistical reports on the
Racial and ethnic data for most HUD programs, nature and outcomes of age discrimination cases.
including public housing and some multifamily and These statistical summaries, which contribute to the
single family housing programs, are collected on apannual report, are compiled from the Age
plications and reports. For example, interim progDiscrimination in Employment Act Compliance
ress reports on affirmative marketing by builders are Action Reports which are completed by Wage and
submitted to HUD area and insuring offices. These Hour Area Office staff in conjunction with their
data can be tabulated for entire HUD regions and for investigations of specific complaints and other
particular counties, standard metropolitan statistical possible violations of the law. More generalized
areas, and even smaller areas. Monthly sales and statistical surveys to determine compliance with the
occupancy reports for individual projects required by law are not included in the age discrimination in
affirmative marketing regulations are also provided employment enforcement program.
to HUD field offices. FHA (Federal Housing
Administration) economic market analysis divisions Thus, in the area of employment alone, there is no in the field offices periodically compile demographic single agency or Department which can speak for the data, including racial and ethnic statistics for Federal Government. Although the Equal counties, to analyze in conjunction with the sales and Employment Opportunity Coordinating Council, occupancy reports. comprised of representatives from EEOC, Labor, Justice, the Civil Service Commission and the Civil To ensure nondiscrimination in the financing of Rights Commission, was established to eliminate housing, the Federal financial regulatory agencies conflict, competition, duplication, and inconsistency collect racial and ethnic information from loan apamong Federal equal employment programs, these plicants. This information is used in conjunction with problems have not been adequately addressed, let Census tract data on the general statistical
serve as a vehicle for the determination of possible violations of title II and, if the powers of the Attorney General with respect to title III are changed, the information could serve a similar purpose in determining target establishments for investigation.
characteristics of the population to ascertain if the regulated loan makers are granting loans to minorities only in minority areas and to nonminorities only in nonminority areas. This data can later be correlated with information on whether or not the loan was approved to determine whether
not the lending institution's acceptance or rejection of loan applications has been discriminatory.
Responsibility for ensuring civil rights compliance in housing is vested in a single agency; thus, the task of developing and implementing a comprehensive, coordinated data collection program has been substantially simplified. Although there does not exist a comprehensive civil rights data collection and analysis program in support of a HUD regulation on racial and ethnic data collection, the Department has taken the initial step of completing a study of civil rights data needs for its major programs. Recommendations resulting from this study address the needs for the allocation of adequate resources and for the development and implementation of policy standards and guidelines for the collection and use of civil rights data in major HUD programs.
The Voting Rights Act of 1965 assured the right to vote by suspending literacy tests and other discriminatory qualifications for six States overall and for 40 counties within a seventh State. Under the Voting Rights Act, the Attorney General has authority to appoint voting examiners to register individuals in cases where it does not appear that local officials are willing to do so. The Attorney General also has the duty to review and approve proposed changes in voting qualifications or procedures of any State or subdivision covered by the act.
Public Accommodations and Public Facilities
Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodations, such as hotels, restaurants and theaters; under title III of the same act, discrimination in the use of public facilities, such as publicly owned or sponsored parks, beaches, swimming pools, golf courses and the like is prohibited. Principal responsibility for enforcement of the public accommodations and public facilities provisions rests with the Department of Justice. Under title II, the Attorney General may initiate an action on his own, but under title III, the Attorney General may institute litigation only on the basis of a written, signed complaint. Efforts by the Justice Department to enforce the requirements of these titles have been concentrated on litigation; there has been little effort by the Department to seek out possible violations through the use of data collections or other means.
The provisions of titles II and III cover a broad range of public establishments. The lack of a systematic program of data collection substantially reduces the ability of the Department of Justice to monitor progress, identify problems, or enforce the law. Standards for recordkeeping by establishments subject to the provisions of these titles should be promulgated by the Department of Justice. Efforts should simultaneously be made to determine the need for and contents of a data collection system. The analysis of data provided by the establishments could
As amended by Public Law 94-73 in 1975, the Voting Rights Act requires the Director of the Bureau of the Census to conduct biennial surveys, in congressional election years, of registration and voting in every State or political subdivision determined to fall under the requirements of the act. Public Law 94-73 specifies that the survey shall provide, for each State or political subdivision selected, a count of citizens of voting age, the race or color and national origin of the individuals, and a determination of the extent to which such persons are registered to vote and have voted in the elections surveyed. Jurisdictions covered include: (1) those where more than 5% of the citizens of
voting age are members of a single language
minority, (2) those where less than 50% of the citizens of
voting age voted in the Presidential election of
1972, and (3) areas previously covered under the 1965 Act
and recovered by the 1970 Amendments. The Congress is expected to use these data, which were collected for the first time beginning in November 1976, to judge the effect of the Voting Rights Act and to determine the need for extension or expansion of its special provisions. Any assessment of the effectiveness of the data collection and analysis must await completion of its initial application.
The Office for Civil Rights (OCR) in the Department of Health, Education, and Welfare (DHEW) is responsible for monitoring federally funded public elementary and secondary school