EXECUTIVE ORDER 11375 AMENDING EXECUTIVE ORDER NO. 11246, RELATING TO EQUAL EMPLOYMENT OPPORTUNITY It is the policy of the United States Government to provide equal opportunity in Federal employment and in employment by Federal contractors on the basis of merit and without discrimination because of race, color, religion, sex or national origin. The Congress, by enacting Title VII of the Civil Rights Act of 1964, enunciated a national policy of equal employment opportunity in private employment, without discrimination because of race, color, religion, sex or national origin. Executive Order No. 112461 of September 24, 1965, carried forward a program of equal employment opportunity in Government employment, employment by Federal contractors and subcontractors and employment under Federally assisted construction contracts regardless of race, creed, color or national origin. It is desirable that the equal employment opportunity programs provided for in Executive Order No. 11246 expressly embrace discrimination on account of sex. NOW, THEREFORE, by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered that Executive Order No. 11246 of September 24, 1965, be amended as follows: (1) Section 101 of Part I, concerning nondiscrimination in Government employment, is revised to read as follows: "SEC. 101. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, color, religion, sex or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of Federal employment policy and practice." (2) Section 104 of Part I is revised to read as follows: "SEC. 104. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex or national origin. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission." (3) Paragraphs (1) and (2) of the quoted required contract provisions in section 202 of Part II, concerning nondiscrimination in employment by Government contractors and subcontractors, are revised to read as follows: "(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. "(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin." (4) Section 203 (d) of Part II is revised to read as follows: "(d) The contracting agency or the Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union or any agency referring workers or providing or supervising apprenticeship or other training, with which the bidder or prospective contractor deals, with supporting information, to the effect that the signer's practices and policies do not discriminate on the grounds of race, color, religion, 1 30 F.R. 12319; 3 CFR, 1964-1965 Comp., p. 339. 77-247 0-72- -30 sex or national origin, and that the signer either will affirmatively cooperate in the implementation of the policy and provisions of this order or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions of the order. In the event that the union, or the agency shall refuse to execute such a statement, the Compliance Report shall so certify and set forth what efforts have been made to secure such a statement and such additional factual material as the contracting agency or the Secretary of Labor may require." The amendments to Part I shall be effective 30 days after the date of this order. The amendments to Part II shall be effective one year after the date of this order. LYNDON B. JOHNSON. THE WHITE HOUSE, October 13, 1967. EXECUTIVE ORDER 11478 EQUAL EMPLOYMENT OPPORTUNITY IN THE FEDERAL GOVERNMENT It has long been the policy of the United States Government to provide equal opportunity in Federal employment on the basis of merit and fitness and without discrimination because of race, color, religion, sex, or national origin. All recent Presidents have fully supported this policy, and have directed department and agency heads to adopt measures to make it a reality. As a result, much has been accomplished through positive agency programs to assure equality of opportunity. Additional steps, however, are called for in order to strengthen and assure fully equal employment opportunity in the Federal Government. NOW, THEREFORE, under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows: SECTION 1. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government. SEC. 2. The head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in section 1. It is the responsibility of each department and agency head, to the maximum extent possible, to prove sufficient resources to administer such a program in a positive and effective manner; assure that recruitment activities reach all sources of job candidates; utilize to the fullest extent the present skills of each employee; provide the maximum feasible opportunity to employees to enhance their skills so they may perform at their highest potential and advance in accordance with their abilities; provide training and advice to managers and supervisors to assure their understanding and implementation of the policy expressed in this Order; assure participation at the local level with other employers, schools, and public or private groups in cooperative efforts to improve community conditions which affect employability; and provide for a system within the department or agency for periodically evaluating the effectiveness with which the policy of this Order is being carried out. SEC. 3. The Civil Service Commission shall provide leadership and guidance to departments and agencies in the conduct of equal employment opportunity programs for the civilian employees of and applicants for employment within the executive departments and agencies in order to assure that personnel operations in Government departments and agencies carry out the objective of equal opportunity for all persons. The Commission shall review and evaluate agency program operations periodically, obtain such reports from departments and agencies as it deems necessary, and report to the President as appropriate on overall progress. The Commission will consult from time to time with such individuals, groups, or organizations as may be of assistance in improving the deral program and realizing the objectives of this Order. SEC. 4. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. Agency systems shall provide access to counseling for employees who feel aggrieved and shall encourage the resolution of employee problems on an informal basis. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission. SEC. 5. The Civil Service Commission shall issue such regulations, orders, and instructions as it deems necessary and appropriate to carry out this Order and assure that the executive branch of the Government leads the way as an equal opportunity employer, and the head of each executive department and agency shall comply with the regulations, orders, and instructions issued by the Commission under this Order. SEC. 6. This Order applies (a) to military departments as defined in section 102 of title 5, United States Code, and executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, United States Code, and to the employees thereof (including employees paid from nonappropriated funds), and (b) to those portions of the legislative and judicial branches of the Federal Government and of the Government of the District of Columbia having positions in the competitive service and to the employees in those positions. This Order does not apply to aliens employed outside the limits of the United States. SEC. 7. Part I of Executive Order No. 11246 of September 24, 1965, and those parts of Executive Order No. 11375 of October 13, 1967, which apply to Federal employment, are hereby superseded. THE WHITE HOUSE, August 8, 1969. RICHARD NIXON. UNITED STATES COMMISSION ON CIVIL RIGHTS: FEDERAL CIVIL RIGHTS II. FEDERAL EMPLOYMENT-THE ROLE OF THE CIVIL SERVICE COMMISSION A. INTRODUCTION With a work force of nearly 3 million civilians (almost 4 percent of the country's total work force), the Federal Government is the Nation's largest employer. There are thousands of different job categories within the Federal civil service, ranging from unskilled laborers to those involving highly complex technical and scientific skills and administrative positions of broad scope and responsibility. Although Washington, D.C., is the focal point for most Federal activity, U.S. Government employees are located throughout the country and in most places throughout the world. All issues of importance to the Nation-foreign relations, rural and urban problems, social welfare, and military activities-are reflected in the variety of occupations and skills within the Federal civil service. If for no other reason than the size and diversity of its work force, the Federal Government serves as the standard bearer in the employment field for the entire country. In fact, the Government today compares favorably with private employers, as measured by such commonly accepted indicia as wage and salary levels, job security, insurance protection, vacation and sick leave benefits, retirement plans, grievance and appeal procedures, and other mechanisms designed to assure equitable treatment for all who are employed or who seek employment. But in terms of equal employment opportunity the relative position of the Federal Government is less clear. A tradition of discrimination in the Federal service accounts in part for both the aura of suspicion and the actual shortcomings which characterize the Federal Government employment picture. For more than 50 years following passage of the Civil Service Act of 1883, discrimination against nonwhite employees-often total minority exclusion-was 2 As of January 1970, civilian employment in all branches of the Federal Government totaled 2,929,564, (116 Cong. Rec. E1521, Mar. 3, 1970). 3 See Supplement to the Revised Statutes of the United States, vol. I, 2d ed., ch. 27, p. 392, 47 Cong., 2d Sess., Jan. 16, 1883. accepted practice among Federal agencies. For example, racial segregation in the Census Bureau, which was started during William Howard Taft's administration, continued into the 1920's. During President Woodrow Wilson's administration, Secretary of the Treasury William G. McAdoo and Postmaster General Albert S. Burleson established similar policies. The President condoned their actions, stating: "I would say that I do approve of segregation that is being attempted in several of the departments." In 1914, the Civil Service Commission introduced a requirement that a photograph be attached to applications for Governments jobs. And during the First World War, Negro clerks employed by the Navy were required to work behind screens." Overt discrimination continued well into the administration of Franklin D. Roosevelt. For example, the congressional restaurant was still segregated in 1934," as were dual lunchrooms in many Federal agencies. Various Federal projects, most notably the Civilian Conservation Corps, embraced discriminatory practices during the New Deal era. Not until late 1940-a mere 30 years ago did the Federal Government officially promulgate a policy of nondiscrimination. Remedial action was initiated by Congressman Robert Ramspeck of Georgia, who introduced legislation to revise the civil service, including provisions to prohibit racial discrimination. On November 7, 1940, a few weeks before passage of the Ramspeck Act, President Roosevelt issued an Executive order barring discrimination in employment and promotion within the Federal service." Thus, skepticism expressed by many minority group members about the genuineness of recent Federal pronouncements on equal employment opportunity is, at least in part, a legacy of the history of discrimination by the Federal Government, itself. If this cynicism is to be overcome, it is necessary that the Federal Government do more than merely speak out on the subject, more than adopt measures designed to bring about the desired ends. It must actually produce the kind of results that demonstrate its credibility to reduce the distrust between minority groups and their own government." B. BACKGROUND AND LEGAL AUTHORITY FOR THE FEDERAL EQUAL EMPLOYMENT OPPORTUNITY PROGRAM Although discrimination by the government because of race, creed, color, or national origin has always been contrary to constitutional principles, it is thus only within recent years that presidential directives and congressional action have reflected this fact. Federal law today is unequivocal with respect to equal employment opportunities for Federal employees. The U.S. Code states: It is the policy of the United States to insure equal employment opportunities for [Federal] employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.10 Executive action has outpaced that of the legislative branch. During the past quarter of a century, each of our Presidents has issued at least one Executive order dealing with equal employment opportunity in the Federal service. 1. Executive orders 9980, 10590, 10925, and 11246 In 1948, President Truman issued Executive Order 9980 setting forth "a policy of fair employment throughout the Federal establishment, without discrimination because of race, color, religion, or national origin. . . President Eisenhower reiterated that policy in Executive Order 10590 12 and sought to have it applied in a "fair, objective, and uniform manner" by establishing the President's 4 Krislov, The Negro in Federal Employment: The Quest for Equal Opportunity 20, 1967. 5 Id., at 21. • Id., at 26. * Id., at 23. $ Executive Order 8587 (1940). Discrimination against women has also characterized Federal employment practices. The comprehensive CSC, Bureau of Management Services' Study of Employment of Women in the Federal Government 1968, contains an outline of milestones in the quest for women's rights in U.S. Government employment, and provides a detailed statistical picture of the status of women within the Federal work force, as of Oct. 31, 1966, and Oct. 31, 1968. Many of the issues discussed in the ensuing pages, e.g., training, complaint procedures, sanctions and remedies, goal setting, interagency liaison, etc., are as pertinent for women as for blacks, Mexican Americans, and other minority groups. However, numerous other problems unique to the status of women have not been dealt with in this chapter. Similarly, the Federal Women's Program and the actual function of the Federal Women's Program Coordinators in each of the agencies would have required separate treatment which was beyond the scope of the present study. 10 5 U.S.C. 7151. 11 Executive Order 9981 (1948). 12 Executive Order 10590 (1955). Committee on Government Employment Policy. A significant shift in program emphasis, from nondiscrimination to affirmative action, occurred in March 1961. Recognizing the "urgent need for expansion and strengthening of efforts to promote full equality of employment opportunity," President Kennedy promulgated Executive Order 10925, establishing the President's Committee on Equal Employment Opportunity (PCEEO).1 Kennedy directed the newly established committee to study and recommend "affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of non-discrimination within the executive branch of the Government." 5914 In 1965, President Johnson promulgated Executive Order 11246. Part I of that order reaffirmed the Government's policy of providing equal opportunity in Federal employment and prohibiting discrimination on the basis of race, creed, color, or national origin.16 The Civil Service Commission was called upon to "supervise and provide leadership and guidance in the conduct of equal employment opportunity programs within the executive departments and agencies and . . . review agency program accomplishments periodically." CSC was further authorized to issue appropriate regulations, orders, and instructions with which agencies were directed to comply. In addition, CSC was directed to consider complaints of discrimination in Federal employment and to hear appeals of decisions following impartial review of the agency involved. Agencies themselves were charged with establishing and maintaining a "positive program of equal employment opportunity for all civilian employees and applicants. . . ." " After consultation with minority and civil rights organizations, unions, and Federal agencies, the Civil Service Commission issued comprehensive equal employment opportunity regulations which outlined action program requirements for agencies and an improved system for the processing of individual complaints of discrimination. 2. CSC's Role Under Executive Order 11246 Despite this mandate, CSC's role under Executive Order 11246 was more characterized by passivity than by "leadership"; more by neutrality than by “guidance." A January 1969 memorandum prepared for John W. Macy, Jr., then CSC Chairman, by the staff of the Community Relations Service, in cooperation with several high level black Federal officials, was sharply critical of the equal employment opportunity posture of the Federal Government and, specifically, of CSC's performance under the Executive order.18 The memorandum stressed that "application of the merit system without regard to existing preferential practices and procedures is tantamount to ignoring the most prevalent form of discrimination in employment." Indeed, as the memorandum pointed out, the CSC approach, which focused primarily on problems of overt discrimination, failed to significantly affect most of the more subtle, pervasive, and institutionalized forms of bias.20 13 Executive Order 10925 (1961). 14 Executive Order 10925 (1961), sec. 201. 15 Executive Order 11246,1965). Part II of this order, which deals with "Nondiscrimination in Employment by Government Contractors and Subcontractors" is much more specific and rigorous with respect to duties imposed on contractors than is Part I with respect to Federal agencies' responsibilities. 16 Executive Order 11375 (1967) amended Executive Order 11246 to prohibit discrimination on the basis of sex. 17 Executive Order 11246 (1965). 18 "The Equal Employment Posture of the U.S. Federal Government," memorandum prepared by Roger W. Wilkins, Director, Community Relations Service, and others, for John W. Macy, Jr., Chairman, CSC, Jan. 14, 1969. 19 Id., at 4. The memorandum set forth other areas, such as recruitment, security clearance, and training, in which it alleged that inadequate activity by CSC and other agencies had allowed discrimination to continue unabated. 20 Robert Hampton, Chairman of the CSC, had recently indicated to this Commission that: "[E]qual employment opportunity under our merit system is not a program to offer spe cial privilege to any one group of persons because of their particular race, religion, sex, or national origin. Equal employment opportunity applies to all persons including those of different races, women, handicapped persons, veterans, rehabilitated offenders, and others. It means the elimination of any discrimination on factors irrelevant to the job. It means helping persons without the necessary skills to gain those skills so they can qualify and compete for a job and advancement. It means making all segments of the population fully aware of employment opportunities. It means the removal of unnecessary barriers to the employment of particular groups of persons and it means support of community activities designed to facilitate employment of persons who otherwise might not have the opportunity. In short, it means the taking of affirmative action to make it possible for all groups of persons, including those who are disadvantaged educationally or otherwise, regardless of their race, sex, or national origin, to compete for Federal employment on an equal footing with other citizens. Letter from Robert E. Hampton, Chairman, Civil Service Commission, to Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights, July 24, 1970." |