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AFFIRMATIVE ACTION REQUIREMENTS OF THE
Introduction and Background
OFCCP's introduction of the affirmative action program requirement contained in title 41 CFR 60-2, issued December 1, 1971, parallels the U.S. Supreme
Court's decision in Griggs v. Duke Power Company1 as
the most significant development in equal employment opportunity law. In Griggs the Court upheld a basic theory of proof which relies heavily on the consequences of alleged discriminatory practices rather than any overt intent. It has been through the application of that basic standard of proof that class-wide relief has been obtained with respect to employment practices which have a disparate impact on minorities and women and those which perpetuate the effects of past discrimination.
Affected class relief is also required under OFCCP's affirmative action program regulations.
example, CFR 60-2.1(b) provides that:
Relief for members of an "affected class"
discrimination must either be included in
However, the beginnings of a systematic method by enforcing compliance with that obligation did not take shape until after May 1974 when the work force analysis provision of 60-2.11(a) was incorporated in the regulations and became fully operative. Thus, until fairly recently, the primary emphasis has been on administering the provisions on goals and timetables and affirmative action procedures.
Affirmative action program goals, timetables, and procedures are methods by which contractors identify and correct disparities in the employment and utilization of minorities and women absent an investigation and a finding of discrimination by the Government. In the affirmative action context goals and timetables are not necessarily administered as a remedy for persons who may be the victims of discriminatory employment practices on the part of the individual contractors to whom they apply. Nevertheless, they are drawn from remedial principles and concepts in that, as set forth in 60-2.10, 2.11, and 2.12(e), their objective is to
minorities and women at those levels and segments of the work force from which they have been excluded by custom and tradition.
As they apply to supply and service contractors affirmative action program goals, timetables, and procedures have their origin in a cooperative arrangement in the 1960's between OFCCP and Plans for Progress, an organization consisting of 325 of the nation's leading corporations. The mission of PFP was to achieve equal employment opportunity through voluntary efforts which transcended the then existing regulatory requirements. Under the leadership of a coordinating staff donated annually by private industry those efforts included the development and execution of a written plan by which each member corporation was to achieve progress toward the realization of specific EEO objectives.
In 1968, with the assistance of key OFCC staff, the coordinating group published for guidance in preparing individual plans, the document, "Guidelines for Affirmative Action," which contained provisions on goals and timetables and action-oriented implementing standards and procedures. Simultaneously OFCC incorporated in its basic regulations an authorizing pro
date to include the Plans for Progress issuance.
1969 OFCC advised contractors that the goals should
"Given these variables, how many minorities are you
The Potomac Institute, in a 1973 study, looked back on this period. It found that it was "probably partly an exercise in political pragmatism, allowing OFCCP, in theory, to push harder than Congress--and skeptical public opinion--might allow if aims were specified. Partly too, it was held that to define affirmative action exactly would limit it, in that affirmative action programs are limited only by the initiative and 2 imagination of the people developing them.
Responding to the needs of compliance agencies, contractors and minority groups for more specificity, OFCCP refined the then existing definition of affirmative action and the methodology for developing goals and timetables
"Affirmative Action: The Unrealized Goal: Wash