The Issue

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

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 nondiscriminatory 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.

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

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

'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.

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 prepare and submit to EEOC, on a yearly basis, an Employer Information Report Form or a Local Union Equal Employment Report. These reports contain information regarding the racial, ethnic, and sex make-up of the work force. EEOC is expected to compile this information and issue periodic reports summarizing the data. Unfortunately, few reports have been published or used on a timely basis.

Under the provisions of the Age Discrimination in Employment Act of 1967, employers are prohibited from refusing to hire, or discharging individuals, or otherwise discriminating against employees with respect to their compensation, terms, conditions, or privileges of employment because of their age. The law further provides that it is unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age. Similar provisions of the act, which covers persons who are at least 40 but less than 65 years of age, are applicable to employment agencies and labor organizations. The Secretary of Labor is empowered to make investigations and to require the keeping of records necessary or appropriate for the administration of this act. The Wage and Hour Division in the Employment Standards Administration is responsible for enforcement of the Age Discrimination in Employment Act, and for reporting annually to the Congress on the status of litigation and progress with respect to the provisions of the law. The Office of Administrative Management produces statistical reports on the nature and outcomes of age discrimination cases. These statistical summaries, which contribute to the annual report, are compiled from the Age Discrimination in Employment Act Compliance Action Reports which are completed by Wage and Hour Area Office staff in conjunction with their investigations of specific complaints and other possible violations of the law. More generalized statistical surveys to determine compliance with the law are not included in the age discrimination in employment enforcement program.

Thus, in the area of employment alone, there is no single agency or Department which can speak for the Federal Government. Although the Equal Employment Opportunity Coordinating Council, comprised of representatives from EEOC, Labor, Justice, the Civil Service Commission and the Civil Rights Commission, was established to eliminate conflict, competition, duplication, and inconsistency among Federal equal employment programs, these problems have not been adequately addressed, let

alone resolved. The assignment of authority to a number of agencies has resulted in the issuance of inconsistent policies and the development of independent and uncoordinated compliance reporting programs. This fragmented administrative procedure has resulted in duplication of effort, inconsistent findings, and failure to meet many of the purposes of the civil rights legislation.

Housing

Executive Order No. 11063, issued in November 1962, constituted the first significant Federal requirement on nondiscrimination in housing. Under this order, discrimination is prohibited in the sale or leasing of all federally assisted housing. The order's prohibition also extends to lending practices insofar as those practices relate to loans insured or guaranteed by the Federal Government.

The responsibilities of the Department of Housing and Urban Development (HUD) were significantly expanded to include private, nonfederally assisted housing under the provisions of title VIII of the Civil Rights Act of 1968 (the Federal Fair Housing Law). As amended, title VIII prohibits discrimination because of race, color, religion, national origin, or sex in the sale or rental of most housing, and makes it unlawful to discriminate in advertising the sale or rental of housing, the financing of housing, or in the provision of real estate brokerage services. HUD is responsible for the overall administration of this title, and is specifically charged with investigating complaints of discrimination.

Racial and ethnic data for most HUD programs, including public housing and some multifamily and single family housing programs, are collected on applications and reports. For example, interim progress reports on affirmative marketing by builders are submitted to HUD area and insuring offices. These data can be tabulated for entire HUD regions and for particular counties, standard metropolitan statistical areas, and even smaller areas. Monthly sales and occupancy reports for individual projects required by affirmative marketing regulations are also provided to HUD field offices. FHA (Federal Housing Administration) economic market analysis divisions in the field offices periodically compile demographic data, including racial and ethnic statistics for counties, to analyze in conjunction with the sales and occupancy reports.

To ensure nondiscrimination in the financing of housing, the Federal financial regulatory agencies collect racial and ethnic information from loan applicants. This information is used in conjunction with Census tract data on the general statistical