Improve the established monitoring by compliance agencies when they are conducting Executive Order Compliance Reviews. CHAPTER 8 REMEDYING DISCRIMINATION I. Introduction and Background In the early 1960's, under the direction of the President's Committee on Equal Employment Opportunity, the Contract Compliance Program included among its higher priorities the objective of remedying employment systems which caused employment discrimination or perpetuated past employment discrimination. Resolutions included merger of progression lines, integration of seniority lists, and afforded seniority credits to minorities transferring to jobs and units to which they had been excluded by custom and tradition. This effort continued with equal vigor after the enactment of Title VII of the Civil Rights Act of 1964 and later under Executive Order 11246, administered by the Office of Federal Contract Compliance. During the period from 1963 to 1970 several significant seniority remedies were obtained. With the development of affirmative action goals, timetables, and procedures of Title 41, CFR Part 60-2 in 1971, OFCCP's emphasis shifted more heavily toward the objective of consolidating on the widest possible provisions. Although 60-2.1(b) enunciated the "present-effects-of-past discrimination" definition and established remedial relief as a contractual condition, little attention was devoted to administering that requirement until 1974. By that time it became clear that 60-2.1 (b) alone was not sufficient to bring about affected class relief. Therefore, in May 1974, the workforce analysis provision was incorporated at 60-2.11(a) and related provisions of 41 CFR 60-60 were promulgated for the purpose of facilitating the identification of affected class problems. Subsequently, during the period 1975-1976, the program began coming to grips with affected class issues. However, because of the imbalance in focus during the preceding period, the Executive Order was perceived in certain quarters as having primarily a prospective orientation rather than serving a remedial purpose as significant as that under Title VII. In actuality the obligations of an employer covered by Executive Order 11246 are contractual and, therefore, not greatly constrained in terms of their remedial reach, whether retrospective or prospective. It is settled (except by the Supreme Court which has never ruled on the matter) that the Executive order can and does demand a higher 1 imposes on employers generally. Following this reasoning, the Government may demand that contractors take certain equal employment actions as a condition of doing business with the Government. Also, the panoply of sanctions available to the contracting officer can be used as enforcement mechanisms under the Executive Order. In addition, the legal principles developed under equal employment opportunity laws generally may be used by OFCCP in enforcing the Executive Order. The principles include procedural matters (e.g., theories of burden of proof) as well as substantive matters (e.g. factual patterns or practices which constitute discrimination). At the same time the Executive Order Program is not bound by the peculiar limitations of those general EEO laws. AAP Goals and Timetables v. Remedial Rights The disparity in job and income opportunities between minorities and nonminorities and between males and females is largely the result of a historical pattern of hiring and job assignment in which minorities and women were hired for and confined to those functional work processes, organizational units, 1 Contractors Ass'n of Eastern Pa. v. Secretary of Labor, 442 F. 2nd 159 (3d Cir. 1971), Cert. denied 404 progression sequences, and specific jobs or occupations which offer the least advantages in terms of pay, training, and other forms of skill or career development, advancement potential, job security, and working conditions.2 While affirmative action goals and time tables can have a substantial impact in breaking up this pattern of employment, they tend to benefit primarily recent entrants to the workforce who are in a better position to change employers or occupations. They provide no relief to longer term employees who are locked into their original discriminatory job assignments by employment systems which contain traditional procedures governing job transfer and promotion and seniority. Until the U.S. Supreme Court's decision in International Brotherhood of Teamsters v. United States, U.S. 14 FEP Cases 1514, the courts consistently ruled that systems which perpetuate the effects of past discrimination are in violation of 2Studies of income differentials by race have concluded that as much as 60 percent of black/white income gap is attributable solely to employment discrimination. Stanley H. Masters has concluded that 56 percent of the difference is attributable to employment discrimination and another 21 percent based on the interaction of discrimination and productivity, or as much as three quarters of the total. Stanley H. Masters, Black-White Income Differentials: Empirical Studies and Policy Implications, University of Wiscon |