ED 074 893

TITLE

INSTITUTIONPUB DATENOTE

EDRS PRICEDESCRIPTORS

ABSTRACT

DOCUMENT RESUME

Higher Education Guidelines for11246.Office for Civil Rights (DHEW),Oct 72101p.

HE 003 852

Executive Order

Washington, D.C.

MF-$0.65 HC-$6.58*Civil Rights; *Equal Opportunities (Jobs); *FederalAid; Federal Legislation; *Higher Education; RacialDiscrimination; Sex Discrimination; *TeacherWelfare

This document presents and explains Executive order11246, the order prohibiting discrimination under federal contractsin colleges and universities. Part one of the document describes thelegal provisions of the order; part two deals with personnel policiesand practices including recruitment, hiring, anti-nepotism policies,training, promotion, termination, fringe benefits, child care, andgrievance procedures; and part three offers suggestions for thedevelopment of affirmative action programs oncollege and universitycampuses. (HS)

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U.S. DEPARTMENT OFHEALTH, EDUCATION, AND WELFARE

OFFICE OF THE SECRETARYOffice for Civil Rights

EXECUTIVE ORDER 11246

U. S. DEPARTMENT OFHEALTH, EDUCATION, AND WELFARE

OFFICE OF THE SECRETARYOffice for Civil Rights

DEPARTMENT OF HEALTH, EDUCATION, AND WELFAREOFFICE OF THE SECRETARY

WASHINGTON. D.C. 20201

October 1, 1972

MEMORANDUM TO COLLEGE AND UNIVERSITY PRESIDENTS

As the new academic year begins, I wish to bring to your attentionthe requirement that all universities and colleges with Federal contractscomply with Executive Order 11246, ''Nondiscrimination Under FederalContracts." We expect that all affected colleges and universities willhenceforth be in compliance with the Order and its implementing regula--tions es stated in the following guidelines.

While these guidelines address themselves to compliance with theExecutive Order, for your information we have also attached as appendicesother civil rights laws affecting institutions of higher education andover which this Office has enforcement responsibility.

We hope that you will become familiar with these guidelines andlaws and direct your staff and faculty to make every effort to abide bythem.

The Department of Health, Education, and Welfare stands ready toassist in every way possible so that all institutions of higher educationwill be able to meet the requirements of the Executive Order and otherFederal requirements regarding nondiscriminatory treatment.

.

Additional copies of these guidelines are available from the Regional

Office for Civil Rights in your area or from the Public Information Office,

Office for Civil Rights, Department of Health, EdUcation and Welfare,

WaShington, D.C. 20201.

Attachments

J. Stanley ottingerDirector, Offic for Civil Rig

TABLE OF CONTENTS.

Page

I. LEGAL PROVISIONS

Executive Order 11246, as amended 1

Regulations of the Department of Labor 1

Revised Order No. 4 and Non-public Institutions 2

Revised Order No. 4 and Public Institutions 2

Nondiscrimination and Affirmative Action in theExecutive Order 2

Who is Protected by the Executive Order 3

Goals and Timetables 3

II. PERSONNEL POLICIES AND PRACTICES 4

Recruitinent 5

hiring 7

Anti-nepotism Policies 8

Placement, Job Classification, and Assignment 9

Training 9

Promotion 10

Termination 10

Conditions of Work 10

Rights and Benefits--Salaty 11

Back Pay ' 11

Leave Policies 12

Employment Policies Relating to Pregnancy andChildbirth. . . .. . .. . 12

A. EligibilityB. Mandatory period of leaveC. Eligibility for and conditions of returnD. Other conditions of leaveE. Child care: leave

Fringe Benefits 13

Child Care , 4 14

Grievance Procedures 14

III. DEVELOPMENT OF AFFIRMATIVE ACTION PROGRAMS . . . .: 15

1. Development or reaffirMatiOn of the contractor's equalemployment opportunity policy 15

2. Dissemination of the policy. :. 15

3. Responsibilityfot implementation . . .1 0 15

4. Identification of proleni:areas by organizational unitsand job classifIcations"., OOOOOO r :. . 16

5. Internal audit and reporting systems .... 6 16

6. Publication of affirmative action programs ' . 16

7. Developing a plan . . . . . . OOOOO 17

TABLE OF APPENDICES

Tab A Executive Order 11246, as amended

Tab B ;Obligations of Contractor's and Subcontractors

Tab C Revised. Order No. 4 .

Tab D Sex DiacriminatiOn Guidelines

Tab E EmplOyeeIesting

Tab F Title VI of the Civil Rights Act of 1964

Tab G Title IX of the Education Amendments of 1972 and Memorandumto Presidents of Institutions of Higher Education

Tab H Title VII of the Civil Rights Act of 1964

Tab I 'OCR Compliance Procedures

Tab J Data Gathering and Analysis

I. LEGAL PROVISIONS

The Office for Civil Rights (OCR) in the Department of Health,Education, and Welfare (HEW) is responsible for the enforcement ininstitutions of higher education of Executive Order 11246, as amendedby Executive Order 11375 (Tab A), which imposes equal, employmentopportuOty req0irements upon Federal contractors, and upon construc-tion contractors on projects receiving Federal assistance from HEW.

Executive Order 11246, as amended

In signing a Government contract or subcontract in excess of$10,000 the contractor agrees that it "will not discriminate againstany employee or applicant for employment because of race, color,

religion, sex or national origin," and that it "will take affirma-tive action to ensure that applicants are employed and that employees

are treated during employment" without regard to these factors. In

the event of the contractor's noncompliance with the nondiscrimination

clauses of the contract, or with the rules and regulations of theSecretary of Labor, the contract may be cancelled, termin2ted, orsuspended in whole or in partand the contractor may be declared in-eligible for further Government contracts.

Part II of the Executive Order sets forth other contractorobligations, enforcement procedures, and administrative responsibili-

ties. Part III of the Executive Order describes the equal opportunityobligations of applicants for Federal assistance involving construction.

The equal employment opportunity obligations of Federal con-tractors apply to all employment by a contractor, and not solely to

employment associated with the receipt or use of Federal fundS. The

specific obligations of =indiscrimination and affirMative action

associated with the Executive Ord:,; apply and are enforceable by the

Office for Civil Rights only in that case of contracts, not grants.*

Regulations of the Department. of Labor

The requirements of the Executive Order are implemented by theregulatiOns'ofthe Department of Labor (41 Code of Federal Regdlations.Chapter 60). Part 60 -1, "Obligations of Contractors and Subcontractors"(Tab B), sets forth matters of general Applicability; incldding thescope of coverage of, the Executive Order, the obligations of employerssubject to that coverage, administratiVe requirements:applicable tofederal agencieSi'-ateps in investigation and enforcement of compliance

with the Order, and guidance for filing complaints of discriminationSanction's and OCR investigative procedures are disCussed at Tab I.

*Where a grafitee of funds for construction participates in construction

under the grant, its..employment is'subjec'4 to the:requirements of the

equal:opportunity clause during the term of participation. When suchgranteeor..aPplicantfor Federal:funds-is an agency or instrumentalityof a state or local:government, Onlysuch agency or instrumentality is

subjeCt to the clatise

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Revised Order No., 4 and Non-public Institutions

Revised Order No. 4 (Part 60-2) (Tab C), which implements andsupplements Section 60-1.40 of Part 60-1, requires each privateinstitution contractor with 50 or more employees and a contract inexcess of $50,000 to develop and maintain a written affirmativeaction program within 120 days of receipt of such a contract.Section 60-1.40 and Revised Order No. 4 set forth the requiredcontents of such a program, including directions for analyses of thecontractor's work force and employment practices, steps t' be takento improve recruitment, hiring, and promotion of minority persons andwomen, and other specific procedures to assure equal employmentopportunity.

Revised Order No. 4 and Public Institutions

While all contractors, both public and private, are required toimplement an affirmative action program, at present. the basic re-quirement of. Revised Order No. 4 that a contractor maintain a writtenaffirmative action plan is not applicable to public institutions,(those under state or local control) (see 41 CFR 60-1.5(a)(4)).Public institutions are nevertheless required to take action to ensurenondiscrimination and to comply with the Executive Order and regula-tions other than Order No. 4. In our judgment, a public institutioncan best carry out these obligations by conducting the kinds ofanalyses required of non-public institutions, and organizing in writtenform its plans to overcome problems of. past discrimination.

In addition, the regulations which set forth the procedures forconducting compliance reviews of all contractors, including publicinstitutions, require written commitments as to "the precise actionsto be taken and dates for completion" to overcome any deficiencieswhich a compliance review identifies (41 CFR 60- 1.20). These ''preciseactions"' and "dates for completion," which must be provided inwriting by a public institution following an HEW compliance review,will ordinarily be.siMilar in content to the written affirmative actioncommitments required as a matter of regulation of non-public institu-tions (41 CFR 60-2.11).

On.00tober 4, 1972, the Department of Labor will announce in theFederal Register itsintentionto amend the regulations'to _remove thepresent exemption of public 'educational institutions froM the require-ment of maintaining a written affirmative action plan. When effective,all educational institutions, both public-and private, will have thesame affirmative action obligations under the Executive Order.

Nondiscrimination and Affirmative Action in the Executive Order

Executive Order 11246 embodies two concepts: nondiscriminationand affirmative action.

Nondiscrimination requires the elimination of all existing dis-criminatory conditions, whether purposeful or inadvertent. A university

contractor must carefully and systematically examine all of itsemployment policies to be sure that they do not, if implemented asstated, operate to the detriment of any persons on grounds of race,color, religion, sex or national origin. The contractor must alsoensure that the practices of those responsible in matters of em-ployment, including all supervisors, are nondiscriminatory.

Affirmative action requires the contractor to do more than ensureemployment neutrality with regard to race, color, religion, sex, andnational origin. As the phrase implies, affirmative action requires theemployer to make additional efforts to recruit, employ and promotequalified members of groups formerly excluded, even if that exclusioncannot be traced to particular discriminatory actions on the part ofthe employer. The premise of the affirmative action concept of theExecutive Order is that unless positive action is undertaken to overcomethe effects of systemic institutional forms of exclusion and discrimination,a benign neutrality in employment practices will tend to perpetuate the

status quo ante indefinitely.

Who is Protected by the Executive Order

The nondiscrimination requirements of the Executive Order apply toall persons, whether or not the individual is a member of a conven-tionally defined "minority group." .In.other words, no person may bedenied employment or related benefits on grounds of his or her race,color, religion, sex, or national origin.

The affirmative action requirements of determining underutiliza-tion, setting goals and timetables and taking related action as detailedin Revised Order No. 4 were designed to further employment opportunityfor women and minorities. Minorities are defined by the Department ofLabor as Negroes, Spanish-surnamed, American Indians, and Orientals.

Goals and Timetables

As a part of the affirmative action obligation, Revised OrderNo. 4 requires a contractor to determine whether women and minoritiesare "Underutilized" in its employee work forceand, if.that is thecase, to develop as a part of its affirmative action program specificgoals and timetables designed to overcome that underutilization. (See

Tab J) Underutilizatioi! is defined in the regulations as "havingfewer'omen or minorities in a particular job than would reasonably beexpected by their availability..''

Goals are projected levels of achievement resulting from ananalysis by the contractor of its deficiencies, and of what it canreasonably do to remedy them, given the availability of qualified minor -ities and women and"the expected turnover in its work force. Establish-ing goals should be coupled withthe adoption of genuine and effectivetechniques and proCedUres to locate qualified members of groups whichhave previously been denied opportunities for employment or advancementand to eliMinate obstacles within the structure and operation; of the:institution (e.g. discriminatOry hiring or proMotion standards) which

have prevented members of certain groups from securing employment oradvancement.

The achievement of goals is not the sole measurement of a con-tractor's compliance, but represents a primary threshhold for de-termining a contractor's,-le71 of performance and whether an issueof compliance exists. If thecontractor falls short of its goalsat the end of the period it,kas,Set, that failure in itself does notrequire a conclusion of noncompliance. It does, however, require adetermination by the contractor as to why the failure occurred. Ifthe goals were not met because the number of employment openings wasinaccurately estimated, or becaUsec'i changed employment marketconditions or the unavailability of%women and minorities with thespecific qualifications needed; but .the record discloses that thecontractor folloWed its affirmative.action program, it has compliedwith the letter and spirit of thexecutive Order. If, on the otherhand, it appears that the cause for failure was an inattention tothe nondiscrimination and affirmative action policies and proceduresset by the contractor, then theContractor may be found out ofcompliance. It should be emphasizedthat while goals are required,quotas are neither required nor permitted by th:! Executive Order.When used correctly, goals are an indicator of probable complianceand achievement, not a rigid or exclUsive measure of performance.

Nothing in the Executive Order requires that a university'contractor eliminate or dilute standards which are necessary to thesuccessful performance,of the institution's educational and researchfunctions. The affirmative action concept does not require that auniversity employ or promote any persons who are unqualified. Theconcept does require, however, that any standards or criteria whichhave had,theeffect of excluding women and minorities be eliminated,unless the contractor can demonstrate that such criteria are condi-tions of successful perforMance in the particular position involved.

II. PERSONNEL POLICIES AND PRACTICES

An employer must establish in reasonable detail and:makeavailable upon request the stan4ards and procedures which govern allemployment praCtiCes in the operation of each organizational unit,includinganytests in use and criteria by which qualificationsfor appointment, retention, or promotion:are judged. It should bedetermined whether such atandaids and*iteiia are valid predictorsof job performance, including whetheithey are relevant -to theduties of the particular position in question. ThisirequireMentshould not ignore or obviate the range of _permissible discretionwhich has Characterized employment jUdgments, 'particularly4n theacademia area. Where sUchYdiscretion appears to have 'operated todeny equality, of opportUnitY, howeVer, it must be sUbjected to':rigorous examination and its2disCriMinatOry effects eliminated.There are: real and:proper limits on the extent, to which criteria fot

aCademic'emplOyMentcanibeexplititly:artitulated; howeileri-: theabsence of any Articulation of such criteria provides opportunitiesfor arbitrary and diScriminatory employment decisions.

5

Recruitment

Recruitment is the process by which aninstitution or departmentwithin an institution develops an applicant pool from which hiringdecisions are made. Recruitment may be an active process, in whichthe institution seeks to communivate its 6mployment needs to candi-dates through advertisement, word-of-mouth.notification to graduateschools or other training programs, disciplinary.conventions or jobregisters. RecrUitment may also be the passive function of includingin the applicant pool those persons who on their own initiative or byunsolicited recommendation apply to the institution for a position.

. In both academic and nonacademic areas, universities must re-cruit women and minority persons as actively as they have recruitedwhite males. Some universities, for example, have tended to recruitheavily at institutions graduating exclusively or predominantlynon-minority males, and have failed toadvertise in media which wouldreach the minority and female communities, or have relied upon personalcontacts and friendships which have had the effect of excluding fromconsideration women and minority group persons.

In the academic area, the informality of word-of-mouth recruitingand its reliante on factors outside the knowledge or control of the,university makes this method particularly susceptible to abuse. In

addition, since women and minorities are often,not in word-of-mouthchannels of recruitment, their candidacies may not be advanced with thesame frequency or strength of endorsement as they merit, and as theirwhite male colleagues receive.

The university contractor must examine the recruitment activitiesand policies of each unit responsible for recruiting. Where such anexamination reveals a significantly lower representation of women orminorities in the university's applicant pool than would reasonably beexpected from their availability in the work fotce, the contractormustmodify or supplement its recruiting policies byvigorous and systematiceffoits to locate and encourage the candidacy of qualified women and'Minorities. WherepolicieS have the effect ofi:excluding qualifiedwomen or minorities, and where ,their effects cannot be mitigated by theimplementation of additional, polities* such policies must be eliminated.

An expanded searchnetWork should include not only the:traditionalavenues through WhichprOmising candidatehave been located (e.g., inthe case'of'atademic±appOintmenta, diiett letters to graduate depart7ments, or In theHcase of nonacademic appointments; adVertising in com-

munity newspapers). In. addition, the extent that it is necessary toovercome underutilization, the university should'search in areas andchannels previously Unexplored.

Certain organizations such as those mentioned Inllevised OrderNo. 4 may Wprepared torefer women and minority applicanta; -For.faculty AndadministrativeapPointrifents, disciplinary and professionalassociations, including committees anCoaucua'groups,:should be Con-taCted and :their faailitieslomplOyea location:and referral

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Particularly in the case of academic personnel, potentially fruitfulchannels of recruitment include the following:

a. advertisements in appropriate professional journals and jobregistries;

b. unsolicited applications or inquiries;

c. women teaching at predominantly women's colleges, minoritiesteaching at predominantly minority colleges;

d. minorities or women professionally engaged in nonacademicpositions, such as industry, government, law firms, hospitals;

e. professional women and minorities working at independentresearch institutions and libraries;

f. professional minorities and women who have received signifi-cant grants or professional recognition;

g. women and minorities already at the institution and elsewhereworking in research or other capacities not on the academic ladder;

h. minority and women doctoral recipients, from the contractor'sown institutionand from other institutions, who are notpresentlY usio';.their professional training;

i. women and minorities presently candidates for graduate degreesat the institution and elsewhere who show promise of out-standing achievement (some. institutions have developed pro-.grams of support for completion of doctoral programs with arelated possibility of future aPpointment);

j. minorities and women listed in relevant professional files,registries and data banks, including those which have madeaparticularly conscientious effort to locate women and minoritypersons.

It should be noted that a contractor is required to make explicitits commitment to equal employment opportunity in all recruiting an-nouncements or advertisements. It may do this'by indicating that it isan "equal opportunity employer.''. It is a violation of the.ExecutiveOrder, however, fOr a prospective employer to State 'that only membersof, a particular minority group or sex will be considered.:

Where seardh commit77:les are used to locate candidates for appoint-ment, they can best carry out the abovetheasuraa when they are composedof persons willing and able to explore new avenues of recruitMent.Effective search'committeee should, if poSsible, include among theirMembers women andMinoritY person's.

Policies which:excludarecruitment'at predoMinantly minoritycolleges and universities restrict thepoolof qualified minority facultyfrom:Which:prospectiveappointes mayjieHchosen. Even if the intent ofsuch policies may be to preventthe socailedH"raiding" of minority

faculty by predominantly-white institutions, 3 violate thenondiscrimination provision of the EXecutiv their effectis.to'denyippportunity for employment on g e to race..Such policies have operated to the serioue, ge of studentsand teachers at MinorityinstitUtions-by denyingtftem notice of researchand teaching opportunities, assistantships, endowed professorships andmany other programs which might enhance their potential for advancement,whether they'thoose to stay, at apredominantly minority Institution ormove to a non-MinOrity institution.-

Minorities and women 'are.frequently recruited only for positionsthoUght 'to beforminorities and women, such as equal employMentgrams ethnic studies4 or women's studies. While these positions mayhave a:particularsuitahility for minority:persons and women, institu-tions must not restricconsideration of women and minorities to suchareas, but shOuldactively recruit them for any position for:which theymay be qualified.

Hiring

Once a nondiscriminatory applicant pool has been establishedthrough recruitment, the process of selection from that pool must alsocarefully follow procedures designed to ensure nondiscrimination. Inall cases, standards and criteria for employment should be madereasonably explicit, and should be accessible to all employees andapplicants. Such standards may not overtly draw a distinction basedon race, sex, color, religion, or national origin, nor may they be appliedinconsistently to deny equality of opportunity on these bases.

In hiring decisions, assignment to a particular title or rankmay be discriminatory. 'For example, in 'many institutions women aremore often assigned initially to-lOwer academic ranks than are men.A study by one disciplinary association showed 'that women tend to beoffered a first appointment at the rank of Instructor rather than therank of Assistant Professor three times more often than men withidentical qualifications. Where there is no valid basis for suchdifferential treatment, such a practice is in violation of theExecutive Order.

Recruiting and hiring decisions which are governed by unverifiedassumptions about a particular Individual's willingness or ability torelocate because of his or her race or sex are in violation of theExecutive Order. For example, university personnel responsible foremployment decisions should nr1; assume that a woman will be unwillingto accept an offer because of her marital etatus, or that a minorityperson will be unwilling to live in a predominantly Whitecommunity.

Institutional policies regarding the employment of an institu-tion's own graduates must not be applied in any manner which woulddeny opportunities to women and minorities. A university must giveequal consideration to its graduate students regardless of their raceor sex for future faculty positions, if the institution employs ,its owngraduates..

In the area of academic appointments, a nondiscriminatory selectionprocess does not mean that an institution should indulge in "reversediscrimination" or ''preferential treatmen:...'" which leads to the selec-tion of unqualified:persons over qualified.ones. indeed, to take suchaction on grounds of race, ethnicity, sex or religion constitutes dis-crimination in violation of the Executive Order.

It shoul&alsO be pointed out that nothing in the Executive Orderrequires or permits a contractor to fire, demote or displacepersons ongrounds of race, color, sex, religion,:or national origin in order tofulfill the affirMative ACtiOncondeptof the ExeCutive Order. Again,to do so would violate the EXeCUtive Order. Affirmative action goalsare to be sought' threugh recruitment and hiring for vacancies created bynormal groWth and attrition in existing positions, .

Unfortunately, a number: of university offiCials have chOsen toexplain disMisSals, transfers, altetationp of job deacriptiOns,:changesin promOtion potential or fringe benefits'; ancirefusals to hire not onthe basis of merit or some objectivesought by the university adminis-tration aside from the Executive Order, but ongrounds that such actions

'.and other ''preferential treatment regardleas of Merit."-' are now re-quired by Federal: law. Such statements constitute either a misunder-standing of'the.law or.:a:willful distortion of it Inieithercase,where theY'ItetuallY-reflect decisions not to employ or promote ongrounds of race,:dolorsex; religion or national'origin',they consti-tute a vidiation of the EXecutive Order and other Federal:laws.

Anti - nepotism Policies

rolicies or practices which prohibit, or limit the simultaneOusemployment of two members o the same family and Whichllavejanadveraeimpact tipon one' sex:or the otherarejnviolation of the ExecutiveOrder. For:eXample,.becauseen have traditionally beenlavoredjnemployment over women,anti.,nepotism, regulations in most cases operateto deny eMOloyMent opportunity to a wife rather than to a husband

If an institution's regulations against the simultaneousiem-ployment of husband and wift'arediscriMinatory-on their ,faceapplicable to ."faculty Wives',, or Ifthey:have in practice servedin most instances to deny:a)gife rather.than a husband employment orpromotion Opportunity,laalaryincreases, or other employment benefits,they should be altered or abolished in order to mitigate theirdiscriminatory'impaCt.

Stated or implied presuMptions against the consideration of morethan one member of the same family for employment by the same institu-tion or within the"saMe academie departmentHslso tends to limit theOpportunities available to woriien more than to men.

If an individual has b'een'denied opportunity for employment,advancement or.benefits on the basis of an anti-nepotism rule orpractice, that action is discriminatory and is prohiblted-under theExecutive Order. Institutional regulations which set reasonable

restrictions on an individual's, capaCity to function as judge or advo-cate in specific situations involving a member of his or her immediatefamily are perthissible where they do not have the effect of denyingequal; employment opportunity to one sex over the other.*

Placement, Job Classification, Assignment

A contractor must examine carr.T.0"' its job category assignmentsand treatment:of individuals :within a single job classificatiOn. Ex-perience'shoWS that indiVidualS of one sex':orrace frequently tend tobe "clustered":in:oertain!jobHclaSSifications, or in certain:depart-mentsor divisions within an.institutiOn.,:MoSt often those claSsifica7tiers or departments inwhiChWdmen or minorities are foundtend to beloWer paid, andHhavelegg OpportunitYfor AdVancementithan'those towhich non-minority males 'are Assigned.

Where, there are no valid or substantial differences in duties orqualificationsl'etween :different job classifications, :And:where personsin the classifications are segregated by race,' Color, religion, sex, ornational origin,those separate eglasSificationsmust be eliminated or merged.-For example,: where male administrati3Oe aidesand female adminiStrativeassistants are PerformingthesSme duties and bear the same responsibilities,butvare accorded different salaries and advanCement opportunities, andwhere theseparate classificationsuponex&mination yield no validdistinctions,.'the separate classifications must be eliminated or merged.

In academic employment,, minorities and women have sometimes beenclassified as research asSoCiates,lecturers" or diMilarcate-goriesof employment.,which 'do not carry withtheM the benefits. andprotections:of regularacademic appointment, and from which promotionis rare, while men with the SaMegualifications are appointed .to regularfaculty:positions.. ,Such sex - or:MinoritySegregaied clespification isdisCriminatorT:and must be eliminated. addition.appropriateremedies must beaffOrded those persons previously assigned:to suchclassifications.

Training

To eliminate discrimination and assure equal opportunity: inpromotion, an:employe.r should initiate necessaryliemedial, job trainingand work study programs' aimed at upgradingspecific skills. This isgenerally applicable in the case of nonacademic employees, but mayaiso be relevant in the case:Of academic employees 4S,:for example,providingH,opportunitieS to participate in research projects, or to

*For an indication of what:shc,Jd constitute! .."reasonable restriction,"see the policy statement of the American:Associatian of UniversityProfessorS on '.Faculty Appointment andFAmily Relationship, whichsuggests that "faculty Members shOuld neither initiate or participateIninStitutionaldecistong4nvolving a direct benefit (initial appoint-ment, retention, promotion, salary, leave of-absence, etc.) to membersof their immediate

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gain new professional skills through leave policies or special programsoffered by the institution.

In institutions where in-service training programs are one of theladdert to administrative positions, minorities and women must be ad-mitted into these programs on an equal basis with non-minority men.Furthermore, opporturei for training may not bo limited to positionswhich are o-- --minorities And males.

The employment of-students by an institution is subject to thesktle considerations of nondiscrimination and affirmative action as isall other employment in an institution.

Promotion

A contractor's policies and practices on promotion should be madereasonably explicit, andadministered to ensure that women and minoritiesare not at A disadvantage. .A.contractot is also obligated to makespecial efforts to ensure that.'Women and minorities in its work forceare given equal opportunitylor promotion. Specifically, 41 CFR.60-2.24states that this result may be achieved through remedial,. work study andjob training programs; through career counseling programsl through theposting and announcement of promotion opportunities; and by the valida-tion of all criteria for promotion.

Termination

Where action to terminate has a disproportionate effect upOn womenor minoritiee'an&the:employeris unable to demontttate reasontifor thedecision to terminate unrelated to racereligion, 'color, nationalorigin or sex, suchactiontarediscriminatory Seniority is an ac-ceptable, standard fortermination, with one exception: where an incum-bent hat heen found to haVe been the ,.victim of diecriwination and as aresult hEis lest actual seniority than heCir she:would have ha&butforsuch discrimination, either seniority cannot beAised as the primarybasisjor termination, or the incumbent must be presumed to have theseniority which he' or she would have had in ,the absence of discrimi-nation.

Conditions of Work

A university employer-must ensure nondiscrimination in all termsand conditions of employment, including work assignments, educationaland training opportunities,- research. opportunities, use of facilities,and opportunities to serve on committees or decision-making bodies.

Intentional policy or practice which subjects persons of a parti-cular sex or minority status to heavier teaching loads, less desirable -class assignments, and fewer opportunities to serve on key decision-making bodies or to apply for research grants or leaves of absence forprofessionalHPurpOses, is in violation of the Executive Order.

Similarly, tilstitutional facilities such as dining halls orfaculty clubs haveaometimes restricted their services to men only.Where such services are a part of the ordinary benefits of employ-ment for certain classifications of employees, no members of suchclassifications can be denied them on the basis of race, color,national origin, sex, or religion.

Rights and BenefitsSalary

The Executive Order requires that universities adhere carefullyto the concept of equal pay for equal work.

In many situations persons:Who hold the same or equivalentpositions, with the same or equivalent qualificationa, are not paidsimilar salaries, and disparities are identifiable along lines ofrace, color) national origin, sex, or religion.

An institution should set forth with reasonable particularitycriteria for determining salary.for each job classification and withineach job classification. These criteria should be made available toall present and potential employees.

The question is often raised as to whether a person who appliesfor apOsition within,a given job classification may be given a higheror lower rate of pay at entry based upOn;hisor:her pay in another'pOsition,or ,Upon market factorsdefinedHoutaide the context of theinstitution's determination of ratesH.opay. Where reference to exter-nalmarket factors results in a disparate effeCt upon women or minoritygroup persons, a reference to thOse,rates of pay is prohibited. For

example minoritor female applicant applies for a position as anAssistant Professor) and the salary range of those entering thatposition-is from $10,000 to $12,000, the fact that theapplicant's formerposition paid"only:$8)000' cannot be used to deny. him or her:the minimumpay for the new poaition, when non - minority men in a comparable situationare given an entry ealary':at or above theminimum.stipulated area. Inthis example, the applicant's leVel of pay must be determined on thebasis of capability and record of performance, not forMer salary.

Back Pay

Back pay awards are authorized and widely used as a remedy underTitle VII of the Civil Rights Act of 1964, the Equal Pay Act, and theNational-Laborltelationa Act., Univeraiiies, like other employers, aresubject to theproviaions of these statutes.

This means thatevidence of discrimination that would require backpay as a remedy will be referred to the apPropriateyederal enforcementagency if the Office for Civil Rights is not able to negotiate a volun-tary settlement with a university. At the direction of the Departmentof Labor, the Office for Civil Rights will continue to pursue back paysettlements only in cases involVing employees who, while protected bythe Executive Order were not protected by -the three statutes mentionedabove at the time violation occurred.

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Contractors continue to have the prospective obligation toinclude in an affirmative action program whatever payments are necessaryto remove existing differentials in pay (based on race or sex) identi-fied in the analyses required under the Executive Order.

Leave Policies

A university contractor mustits leave policies, including paidprofessional purposes, sick'leave,,and-leave'forpurposes of personal

not discriminate against employees inand unpaid leaVe for educational orannual `leave, temporary disability,necessity.

Employment Policies Relating to Pregnancy, and Childbirth

. 41 CFR, 60-,20 (Sex )Discrimination guidelines) (Tab'D) provides that'Women shall not be penalized in their conditions of employment becausethey require 'time aWayjrom work on account of Childbearing.'!: Pregnancyand childbearinOlust.be considered as a justification of a leave of absencefor a female employee regardless of marital status for a reasonable lengthof time, and for reinstatement following childbirth without loss of seniorityor accrued benefits.

A. Eligibility: If an employer has a policy on eligibility for leave,a female-employee may not be required to serve longer than theminimumlength' of service: required othertypea leave in order to qualify formaternity leave.', If the employer has:no leave policy, childbearing mustnevertheless be considered as a justification' for a leave of absence for afemale employee for .4 reasonablelength of time

B. Mandatory period of leave: Any policy, requiring a mandatory leaveof absence'viOlates the:=EXecutive Order unlessit is based om:individualmedical or job characteristiCa. In such "cases the,employer muat:clearlY:demonstrate an overridingneed based;,On medical safety or "businessnecessity,'' i.e.thiatthe SucceSsfUI:perforManceof the popitiOn 'or jobin'qUeatiowrequires the leave. For example, service in a radiation labora-tory may constitute a demonstrable hazard to the 'expectant Mother or herchild. kmandatory period of.leaye'ishotild not,- however, be StipUlatedby the university; the length ofleave,:whether mandatory or voluntary,shoUld-be based on a bona 'fide Medical need related to pregnandy orchildbirth.

C. Eligibility for and conditions of return: J'ollowingthe end ofleaveWarranted:by, childbirth, a female empIcrfee mustj1C-offered reinstate-ment to her original position or one of:like status and pay:without loss ofSeniority or 'accrued benefits.

D. Other conditions of leave: Department of Labor guidelinea.pro-vide that the Conditiona'related to pragnancy leave, i.e., salary, accrualof seniority 'and,other benefits-, reinstatement rights, etc., must be inaccordante with-the employer's general leave, policy.

On April 5, 1972, the Equal-Employment Opportunity;Commisaion, underTitle VII of the Civil Rights Act of 1964, issued revised guidelines onsex discriMinatiOn, 37 Fed. Reg. 6835, Which differsubstantially from the

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present. Department of Labor guidelines under the Executive Order. TheLabor Department has not adopted the rules of the EEOC as its own,although universities are subject to them. However, serious considera-tion is:now being given,to revising the Labor Department guidelines toequate disabilities caused by pregnancy and childbirth with all othertemporary disabilities for which an.employer might provide leave time,insurance pay, and other benefits.

E. Child care leave: If employees are generally granted leavefor personal reasons, such as for a year or more, leave for purposesrelating to child care should:be considered giounds for such leave, andshould-be available to men and women'on an equal basis. A faculty membershould not-be required to have such leavetime counted toward the completionof a tetra' as a probationary faculty member, unless personal leave for. otherreasons is so considered. Nor should such leave time be subtracted from astated term of appointment, or serve as a basis for nonrenewal of contract.

Fringe Benefits

Fringe benefits are defined to include medical, hospital, accident,life insurance and retirement benefits; profit-sharing and bonus plans;leave, and other terms and conditions of employment.

The university shOuld ca,..efully examine its fringe benefit pro-grams for possible discriminatory effects. For example, it is unlawfulfor an employer to.establish-4 retirement or pension plan which estab-lishes different optional or mandatory retirement ages for men and forwomen.

Where an employer conditions benefits available to employees andtheir: spOUses and families on whether the employee is the "head of thehousehold''' or "principal Wage.rearner'' in the family unit, such bene-.fits cannot be made available:, only to:male employees and their families.The employer alsoHMust not presume that a married man is the "head ofthe househOld'' or ``principal wage earner'.'; this is a matter whichmust be determined by the employee and his or her family.

It is also unlawful for an employer to make benefits available tothe wives and familiea of. male employees where the same benefits are notavailable to the husbanda and families-of female employees.

With regar to retirement benefits and insurance, pensions, andother welfare programs, Department'OfLabor Sex Discrimination Guide-lines provide that benefita'Must beequal for both'aeXes, or that theemployer's contribution must be equal for both sexes. This means thata different rate of retirement benefits for men and women does notvio-late the Executive Order if the employer's contributions for both sexesAre equal. It is not a violation, of the Executive Order.if the employer,

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in seeking to equalize benefits for men and women employees, contributesmore for one sex than the other.*

Child Care

41 CFR 60-.2.-24 states that an employershould, as part of hisaffiCmativeaction.Trogram, encourage child care programs appropriatelydesigned,toHimprove the employment oppOrtunities of minorities and women.An increasing number of institutions have established child care pro-grams for their wile and female-eMplo*ea and students, and we commendsuCheffOrts to all institutio* As _art of AnaffirmativeactiOnprogram, such ,prOgrams may improve theemploymentiopportunitiesof allemployees, not onlywOMen and minorities, and contribute significantlyto an institUtion's,affirmative-action profile.

Grievance Procedures

As ofliardhil972 and pursuant to the provisions of the EqualEmplOyment Opportunity Actof;1972, the,EqUalEmplOyment OpportunityCommissionAlas Jurisdiction oar indiVidual ComplaintS ofAIscriminationby academic as well as non7aCadeMic eMpIpyees Of educational institutions.

Pursuant to formal agreement!between:CCR and EEOC, and to avoidduplicatiOn of effort, individualomplaints:ofHdIsCrtatination will beinvestigated and remedied by EEOC:. ClaSsi,complaints, groups ofdUalLcomplainta orOther:information wh1Ch indicates possible institu-tional patterns of discrimination (as opposed tottaolated:caSes) willremain subject tO-AnVestigation by OCR- sUchcases, retrospectiverelief for indiViduals within such ,xlakses or groups will remain withinthe jurisdiction Hof EEOC.

Where an .employer has established sound standardsof,due processfor the hearing; nf employee grIevancesandhas:,undertakena prompt andgood faith-,effont to:identify and providereliefjOrgrieVances,dupliCative assaMption %.:7AurisdiCtion the FederalGovernment has notalways proven necessary. We therefOre 'Ilr,methedeveloPment of soundgrievance procedures lor all eMploYees,am:ademic:and nonacademic-Alike,in order to ensure time fair treatment of. Individual cases wherediscrimi-nation is alleged to maintain the integrity of the emPloyer's in-ternal employment system.:

Institutional grievance procedureshich:provide,lor:proMpt andequitable hearing of_emplOyee grievanoesHrelatinvtoem4oloyment dis-crimination',should beL,mtitten andlavallErie taaII:-.0resent and prospec-tive eMpIOyees.

*Berrafits which are different for men anffloomen have beem declared inviolation ,of Title VII of the M6,1 Right- Agt of 1964 in recent guidelinespublished 'by the Equal Employmen,t:OpportU614.y Commission. 'These guidelinesalso stack that it is no defense 40ainst -a- 0.51arge of sexiAiscrimination thatthe cost *such benefits is greatet for onesex thanitOrithe. other.

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III. DEVELOPMENT OF AFFIRMATIVE ACTION 7ROGRAMS

Effective affirmative action programs shall contain, but not

necessarily be limited to, the followiLg ingredients:

1. Development or reaffirmation of the contractor's equal em-ployment opportunity policy: Each institution should have a clear

written statement over the signature of the chief administrative officer

which- 'sets forth:the institution's legal obligation and policy for the

guidance -of, all supervie7ry personnel-, both academic and nonacademic,

for all employees and for the community served by the institution. The

policy statement should reflect the institution's affirmative commitment

to equal employment opportunity, as well as its 'commitment to eliminatediscrimination in emplOyMent on the: basis of race, color, sex, religion

and national origin.

2. Dissemination of the policy: Internal communication of the

institution'* policy in writing to' all supervisory personnel is easen7

tial to their. Under-Standing, cooperation and compliance. All persons

responsibleTor personnel decisions must knoW what the law requires,

what the institution's policy is:and hot./'to interpret the policy and

implement theptogram within the area of their responsibility, Formal

:and informaLexternal disSemination of the policy, is necessary, to inform

and secure the cOoperation of oganizations within the community, in-

cluding:civil rights groups, profeSsional associatiOns. women's grOups,

and various sources of referral within the recruitment area of the

:institution.

The employer should communicate to all present and prospective

employees the existence of theaffirmative action program, and make

aVailable such elements of the program as will enable them to know of

and avail themselVes of its benefits.

3.,Responsibilitylor"implementation: ,An Administrative procer

dure must beset up to organize: and, monitor the affirmative action program.

41 CFR 6072.22 Provideathat:an:ekecUtive of the contractor should beappointed apAirector,of EEO Programs, and that 'he or she should be

given "the necessary top management support and "staffing to execute

the assignMent..'? (See the:remainder of section 2.22 for:detailsOf the

responsibilities of the Equal Employment Opportunity Officer.)' This should be

a person knowledgeable-of and sensitive to the 'problems of women and minority

groupa. Depending upon the size of the institUtiOn this may be his or her

sole responsibility, and-neceSsary authority and staff should he accorded the

position to ensure the proper implementation of the program.

In several institutions the EEO officer has been assisted by one or

more task forces coMpOged in substantial part of women and minority per-

sons. This has usually facilitated the task of the EEO officer-and

enhanced the prospects of success for the affirMative action program in

the institution.

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4. Identification of problem areas by organizational units andjob classifications: In this section the contractor should addressitself to' the issues discussed in sections I and II above. Thequestions involved in data gathering and analysis are treated inawendik J,

Once an inventory is comPleteC the data should be coded andcontrolled in strict confidence so that access is limited to thosepersons involved in administering and reviewing the Equal EmploymentOpportunity Program. Eomestate and local laws may prohibit thecollection and retention of data relating,to therace, sex, color,religion, or national origin of employees and 4plicants for,employ-ment. Under the 'principle ,oUFederal supremacy, requirements for such'inventories and recordkeePing under the EXecntive Order aupersede.anyconflicting state or local laW, and the existence of such laws is notan acceptable excuse for :failure to collect oz supply such informationas required uader the Executive Order.

5. Internal audit and reporting systems: An institution mustinclude in its administrative operation:a system of audit and reportingto assist in the implementation and monitoring of the affirmative actionprogram, and in periodic evaluations of its effectiveness.. In somecases a reporting system has' taken the forM of, a monitoring.of allpersonnel aCtions. so that department headsand other supervisors mustmake periodic reports on affirmativeactiOn efforts to a central office.In most casts, all new Appointments must be aCcompanied by documentationof,:an energetic and'sYstetatic search for women and minorities.

Reporting and monitoring systems: will differ from institution toinstitution according `to 'the nature of the goals and programs estah-..lished, but AlL,should be sufficiently organithai to prOVide a:readyindication of whether or not the program is succeeding, and particularlywhetheror,not good faith efforts haveheen made to ensure fair treat-ment of women andMihority group persons before and during: employment.:Reporting, systems include a method of evaluating:applicant flow;referral and hiring rate; and an apPliCation rettlntion:system tO,allowthe developMentof an inventory of available skills.

Atileast once annually, the institution must prepare a formalreport to OCRjon the.results,of Its affirmative action compliance pro-gram. The evaluation necessary to prepare Such_a report will serve asa basis for updating the program, taking into consideration changes inthe institution's work force (e.g.,:exPanSion,- contraction, turnover),changes in the availability:Of minorities and women through improvededuCationalHopportunitiea,and changes in the cOmparative availabilityof women as opposed to men as a result.Of changing interest levels indifferent types of work..

6. Publication of affirmative action programs: In accordancewith 41 CFR 60-2.21(11), which states that the contractor should

oommunicate to his employees the existence of the contractor's affir-mative action program and make available such elements of his programas will enable such-employees to know of and avail themselves of its

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benefits," the Office for Civil Rights urges institutions to makepublic their affirmative action plans. University contractors should

also be aware that affirmative action plana accepted by the Office

for Civil Rights are subject to disclosure to the public under the

Freedom of Information Act, 5 U.S.C. 552. Subject to certain exemp-tions, disclosure ordinarily will include broad utilization analyses,proposed remedial steps, goals and timetables, policies on recruit-ment, hiring, promotion, termination, grievance procedures and otheraffirmative measures to be taken. Other types of documents whichmust be released by the'Government upon a request for disclosure in-clude the contractor's validation studies of tests and other preem-

ployment selection methods.

Exempt from disclosure are those portions of the plan whichcontain confidential information about employees, the disclosure ofwhich may constitute an invasion of privacy, information in the natureof trade secrets, and confidential commercial or financial informationwithin the meaning of 5 U.S.C. J52(b) (4). Compliance agencies alsoare not authorized to disclose the Standard Form 100 (EEO-1) orsimilar reporting forms or information about individuals.

7. Developing a plan: T174e Office for Civil Rights recognizes thatin an institution of higher educaticii, and particularly in theacademic staff, respotibibiiity.:forHmatters! concerning:personnel decision0 is diffuaed-among mAnyAiersont at k.nuMber of differentjevels.The succese:Of.:a:UniversitVaaffirmatiVe action:program may,be de-pendent'in large; jart upon the willingness' and:ability of the facultyto assist in its development and implementation. Thereforethe OfficeforCivil Rightsurget that UniVersity administrators involve membersoftheir facUlty,,as as aUpervisOrypertonnel:in their workforce, inthe4rocessof;:deVeloping an,infOrMationbase,:, determiningpotential:eMployee aVaii0ility, the :establishMent of goals and'amettablet,MonitOringand: evaluating the.:effettiVenesa,ofthe plan, andin all Other appropriate elements of a plan. knuMber oftinstitutionshave successfullyeatablished faculty or joint facUlty.-staffcommissions or task forcest0:asaist in:the preparationancladministra-,tiOn of affirmative action ObligationsWe'therefore:recommendto university contractors that' particular attention be 'given the needte'bring into the deliberative and decision,making,precestthose withinthe academic "community who have a responsibility in pertonnel matters.

The Office for Civil Rights stands ready to the fullest extentpossible to assist university contractors in meeting their equal em-13loyment opportunitY Obligations. :

TAB A

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This is the text of ExecutiveOrder 11246, signed by. PresidentJohnson September 24, 1965, asamended by Executive Order 11375,signed October 13, 1967.

Amended Part I was superseded byExecutive Order 11478, 'signed byPresident Nixon August 8, 1969.

Part II was amended to add sexas a prohibited basis of discrimi-nation, effective October 13, 1968.

EXECUTIVE ORDER11246

Under and by virtue of the authority vestedin me as President of the United States by theConstitution and statutes of the United States,it is ordered as follows:

PART INondiscrimination in GovernmentEmployment

[Secs. 101-105, barring discrimination in fed-eral employment on account of race, color,religion, sex, or national origin; were supersededby Executive Order 11478. These provisionscalled for affirmative-action programs for equalopportunity at the agency level under generalsupervision of- the Civil Service Commission;establishment of complaint procedures at eachagency with appeal to the Commission; andpromulgation of regulations by CSC.]

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PART IINondiscrimination in Employmentby. Government Contractors and Subcon-tractors

SUBPART ADUTIES OF THE SECRETARY OFLABOR

Sec. 201. The Secretary of Labor shallbe responsible for the administration ofParts II and Ill of this Order and shalladopt such rules and regulations randissue such orders as he deems necessaryand appropriate to achieve the purposesthereof.

SUBPART B-- CONTRACTORS' AGREEMENTS

Sec. 202. Except in contracts exemptedin accordance with Section 204 of thisOrder, all Government contracting agen-cies shall include in every Governmentcontract hereafter entered into the follow-ing provisions;

"During, the performance of this con-tract, the contractor agrees as follows:

"(1) The contractor will not discrimin-ate against any employee or applicant foremployment because of race, color, reli-gion, sex,- or national origin. The contrac-tor will take affirmative action to ensurethat applicants are employed, and thatemployees are treated during employment,without regard to their race, color, reli-gion, sex, or national origin. Such actionshall include, but not be limited to the

following: employment, upgrading, demo-tion, or transfer; recruitment or recruit-ment advertising; layoff or termination;rates of pay or other forms of compensa-tion; and selection for training, includingapprenticeship. The contractor agrees topost in conspicuous places, available toemployees and applicants for employment,notices to be provided by the contractingofficer setting forth the provisions of thisnondiscrimihation clause.

"(2) The contractor will, in all solicita-tions or advertisements for employeesplaced by or on behalf of the contractor,state that all qualified applicants"will re-ceive consideration for employment with-out regard to race, color, religion, sex, ornational origin.

"(3) The contractor will send to eachlabor union or representative of workerswith which he has a collective bargainingagreement or other contract or under-standing, a notice, to be provided by theagency contracting officer, advising thelabor union or workers' representative ofthe contractor's commitments under Sec-tion 202 of Executive Order No. 11246 ofSeptember 24, 1965, and shall post cop-ies of the notice in conspicuous placesavailable to employees and applicants foremployment.

"(4) The contractor will comply withall provisions of Executive. Order No.11246 of September 24, 1965, and ofthe rules, regulations, and relevant ordersof the Secretary of Labor.

"(5) The contractor will furnish all in-formation and reports required by Execu-tive Order No. 11246 of September 24,1965, and by the rules, regulations, andorders of the Secretary of Labor, or pur-suant 'thereto, and will permit access tohis books, records, and accounts by thecontracting, agency and the Secretary ofLabor for purposes of investigation to

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ascertain compliance'with such rules, reg-ulations, and orders.

"(6) In the -event of the contractor'snoncompliance with the nondiscriminationclauses of this contract or with any ofsuch rules, regulations, or orders, thiscontract may be cancelled, terminated,or suspended in whole or in part and thecontractor may be declared ineligible forfurther Government contracts in accord-ance with procedures authorized in Execu-tive Order No. 11246 of September 24,1965, and such other sanctions may beimposed and remedies invoked as pro-vided in Executive Order No. 11246 ofSeptember 24, 1965, or by rule, regula-tion, or order of the Secretary of Labor,or as otherwise provided by law.

"(7) The contractor will include theprovisions of Paragraphs (1) through (7)in every subcontract or purchase orderunless exempted by rules, regulations, ororders of the Secretary of Labor issuedpursuant to Section 204 of ExecutiveOrder No. 11246 of September 24, 1965,so that such provisions will be bindingupon each subcontractor or vendor. Thecontractor will take such action with re-spect to any subcontract or purchaseorder as the contracting agency may directas a means of enforcing such provisionsincluding sanctions for noncompliance:Provided, however, That in the event thecontractor becomes involved in, or isthreatened with, litigation with a subcon-tractor or vendor as a result of such di-rection by tie contracting agency, the con-tractor may request the United States toenter into such litigation to protect theinterests of the United States.''

Sec. 203. (a) Each contractor having acontract containing '.he provisions pre-scribed in Section 202 shall file, and shallcause each of his subcontractors to file,Compliance Repc Is with the contractingagency or the Secretary of Labor as may

be directed. Compliance Reports shall befiled within such times and shall containsuch infOrmation as to the practices, poli-cies, programs, and employment policies,programs, and employment statistics ofthe contractor and each subcontractor,and shall be in such form, as the Secretary of Labor may prescribe.

(b) Bidders or prospective contractorsor subcontractors may be required tostate whether they have participated inany previous contract subject to the pro.visions of this Order, or any precedingsimilar executive order, and in that eventto submit, 011 behalf of themselves andtheir proposed subcontractors, ComplianceReports prior to or as an initial part oftheir bid or negotiation of a contract.

(c) Whenever the contractor or sub-contractor has a collective bargainingagreement or other contract or under-standing with a labor union or an agencyreferring workers or providing or super-vising apprenticeship or training for suchworkers, the Compliance Report shall in-clude such information as to such laborunion's or agency's practices and policiesaffecting compliance as the Secretary ofLabor may prescribe: Provided, That tothe extent such information is within theexclusive possession of a labor union oran agency referring workers or providingor supervising apprenticeship or trainingand such labor union or agency shall re-fuse to furnish such information to thecontractor, the contractor shall so certifyto the contracting agency as part of itsCompliance Report and shall set forthwhat efforts he has made to obtain suchinformation.

(d) The contracting agency or the Sec-retary of Labor may direct that any bidderor prospective contractor or subcontractorshall submit, as part of his ComplianceReport, a statement in writing, signed byan authorized officer or agent on behalfof any labor union or any agency referringworkers or providing or supervising ap-

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prenticeship or other training, with whichthe bidder or prospective contractor deals,with supporting information, to the effectthat the signer's practices and policies donot discriminate on the grounds of race,color, religion, sex, or national origin, andthat the signer either will affirmativelycooperate in the implementation of thepolicy and provisions of this Order or thatit consents and agrees that recruitment,employment, and the terms and conditionsof employment under the proposed con-tract -shall be in accordance with the pur-poses and provisions of the Order. In theevent that the union, or the agency shallrefuse to execute such a statement, theCompliance Report shall so certify andset forth what efforts have been made tosecure such a statement and such addi-tional factual material as the contractingagency or the Secretary of Labor may re-quire.

Sec. 204. The Secretary of Labor may,when he deems that special circumstancesin the national interest so require, exempta contracting agency from the require-ment of including any or all of the pro-visions of Section 202 of this Order in anyspecific contract, subcontract, or purchaseorder. The Secretary of Labor may, by ruleor regulation, also exempt certain classesof contracts, subcontracts, or purchaseorders (1) whenever work is to be or hasbeen performed outside the United Statesand no recruitment of workers within thelimits of the United States is involved; (2)for standard commercial supplies or rawmaterials; (3) involving less than specifiedamounts of money or specified numbersof workers; or (4) to the extent that theyinvolve subcontracts below a specifiedtier. The Secretary of. Labor may also pro-vide, by rule, regulation, or order, for theexemption of facilities of a contractorwhich are in all respects separate' and dis'-tinct from activities of the contractor re-lated.to the performance of the contract:Provided, That such an exemption will not

interfere with or impede the effectuationof the purposes of this Order: And pro-vided further, That in the absence of suchan exemption all facilities shall be coveredby the provisions of this Order.

SUBPART C-POWERS AND DUTIES OF THESECRETARY OF LABOR AND THE CONTRACT-ING AGENCIES

Sec. 205. Each contracting agency shallbe primarily responsible for obtainingcompliance with the rules, regulations,and orders of the Secretary of Labor withrespect to contracts entered into by suchagency or its contractors. All contractingagencies shall comply with the rules ofthe Secretary of Labor in discharging theirprimary responsibility for securing com-pliance with the provisions of contractsand otherwise with the terms of this Orderand of the rules regulations and ordersof the Secretary Labor issued pursuantto this Order. They ale directed to cooper-ate with the Secretary of Labor and to fur-nish the Secretary of Labor such informa-tion and assistance as he may require inthe performance of his functions underthis Order. They are further directed toappoint or cwsignate, from among theagency's personnel, compliance officers.It shall be the duty of such officers toseek compliance with the objectives ofthis Order by conference, conciliation,mediation, or persuasion.

Sec. 206. (a) The Secretary of Labormay investigate the employment practicesof any Government contractor or subcon-tractor, or initiate such investigation bythe appropriate contracting agency, todetermine whether or not the contractualprovisions specified in Section 202 of thisOrder have been violated. Such investiga-tion shall be conducted in accordance with

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the procedures established by the Secre-tary of Labor and the investigating agencyshall report to the Secretary of Labor anyaction taken or recommended.

(b) The Secretary of Labor may receiveand investigate or cause to be investigatedcomplaints by employees or prospectiveemployees of a Government contractor orsubcontractor which allege discriminationcontrary to the contractual provisionsspecified in Section 202 of this Order. Ifthis investigation is conducted for theSecretary of Labor by a contractingagency, that agency shall report to theSecretary what action has been taken oris recommended with regard to such com-plaints.

Sec. 207. The Secretary of Labor shalluse his best efforts, directly and throughcontracting agencies, other interestedFederal, State, and local agencies, con-tractors, and all other available instrumen-talities to cause any labor union engagedin work under Government contracts orany agency referring workers or providingor supervising apprenticeship or trainingfor or in the course of such work to coop-erate in the implementation of the pur-poses of this Order. The Secretary ofLabor shall, in appropriate cases, notifythe Equal Employment Opportunity Com-mission, the Department of Justice, orother appropriate Federal agencies when-ever it has reason to believe that thepractices of any such labor organizationor agency violate Title VI or Title VII ofthe Civil Rights Act of 1964 or other pro-vision of Federal law.

Sec. 208. (a) The Secretary of Labor,or any agency, officer, or employee in theexecutive branch of the Government desig-nated by rule, regulation, or order of theSecretary, may hold such, hearings, publicor private, as the Secretary may deem ad-visable for compliance, enforcement, oreducational purposes.

(t: The Secretary of Labor may hold,or cause to be held, hearings ir accord-ance with Subsection (a) of this Sectionprior to imposing, ordering, or recom-mending the imposition of penalties andsanctions under this Order. No order fordebarment of any contractor from furtherGovernment contracts under Section 209(a)(6) shall be made without affording thecontractor an opportunity for a hearing.

SUBPART D--- SANCTIONS AND PENALTIES

Sec. 209. (a) In accordance with suchrules, regulations, or orders as the Secre-tary of Labor may issue or adopt, theSecretary or the appropriate contractingagency may:

(1) Publish, or cause to be published,the names of contractors or unions whichit has concluded have complied or havefailed to comply with the provisions ofthis Order or the rules, regulations, andorders of the Secretary of Labor.

(2) Recommend to the Department ofJustice that, in cases in which there issubstantial or material violation or thethreat of substantial or material violationof the contractual provisions set forth inSection 202 of this Order, appropriateproceedings be brought to enforce thoseprovisions, including the enjoining, withinthe limitations of applicable law, of orga-nizations, individuals, or groups who pre-vent directly or indirectly, or seek to pre-vent directly or indirectly, compliance withthe provisions of this Order.

(3) Recommend to the Equal, Employ-ment Opportunity Commission or the De-partment of Justice that appropriate pro-ceedings be instituted under Title VII ofthe Civil Rights Act of 1964.

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(4) Recommend to the Department ofJustice that criminal proceedings bebrought for the furnishing of fake infor-mation to any contracting agency or tothe Secretary of Labor as the case may be.

(5) Cancel, terminate, suspend, orcause to be cancelled, terminated, or sus-pended, any contract, or any portion orportions thereof, for failure of the con-tractor or subcontractor to comply withthe nondkcrimination provisions of thecontract. Contracts may be cancelled,terminated, or suspended absolutely orcontinuance of contracts may be condi-tioned upon a program for future compli-ance approved by the contracting agency.

(6) Provide that any contracting agencyshall refrain from entering into furthercontracts, or extensions or other modifi-cations of existing contracts, with anynoncomplying contractor, until :such con-tractor has satisfied the Secretary ofLabor that such contractor has establishedand will carry out personnel and employ-ment policies in compliance with the pro-visions of this Order.

(b) Under rules and regulations pre-scribed by the Secretary of Labor, eachcontracting agency shall make reasonableefforts within a reasonable time limitationto secure compliance with the contractprovisions of this Order by methOds ofconference, conciliation, mediation, andpersuasion before proceedings shall beinstituted under Subsection (a) (2) of thisSection, or before a contract shall becancelled or terminated in whole or inpart under Subsection (a) (5) of thisSection for failure of a contractor or sub-contractor to comply with the contractprovisions of this Order.

Sec. 210. Any contracting agency tak-ing any action authorized by this Subpart,whether on its own motion, or as directed

by the Secretary of Labor, or under therules and regulations of the Secretary,shall promptly notify the Secretary ofsuch action. Whenever the Secretary ofLabor makes a determination under thisSection, he shall promptly notify the ap-propriate contracting agency of the actionrecommended. The agency shall take suchaction and shall report the results thereofto the Secretary of Labor within such timeas the Secretary shall specify.

Sec. 211. If the Secretary shall sodirect, contracting agencies shall not enterinto contracts with any bidder or prospec-tive contractor unless the bidder or pros-pective contractor has satisfactorily com-plied with the provisions of this Order orsubmits a program for compliance accept-able to the Secretary of Labor or, if theSecretary so authorizes, to the contractingagency.

Sec. 212. Whenever a contractingagency cancels or terminates a contract,or whenever a contractor has been de-barred from further Government contracts,under Section 209 (a) (6) because ofnoncompliance with the contract provi-sions with regard to nondiscrimination,the Secretary of Labor or the contractingagency involved, shall promptly notify theComptroller General of the United States.Any such debarment may be rescindedby the Secretary of Labor or by the con-tracting agency which imposed the sanc-tion.

SUBPART E--CERTI FI CATES OF MERIT

Sec. 213. The Secretary of Labor mayprovide for issuance of a United StatesGovernment Certificate of. Merit to em-ployers or labor unions, or other agencieswhich are or may hereafter be-engaged in

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work under Government contracts, if theSecretary is satisfied that the ,flgrsonrie'land employment practices of '.tte em-plcyer, or that the persorarie -.training;apprenticeship, membership., ,giiievance:-.and representation, upgradiiiiTig;.and otherpractices and policies of timr labor unionor other agency conform to ;the'purposesand provisionsof this Order:

Sec. 214. Any Certificate of Merit mayat any time be suspended or revoked bythe Secretary of Labor if the holder there-of, in the judgment of the Secretary, hasfailed to comply with the provisions ofthis Order.

Sec. 215. The Secretary of Labor mayprovide for the exemption of any employer,labor union, or other agency from anyreporting requirements imposed under orpursuant to this Order if such employer,labor union, or other agency has beenawarded a Certificate of Merit which hasnot been suspended or revoked.

PART IllNondiscrimination Provisions inFederally Assisted Construction Contracts

Sec. 301. Each executive departmentand agency which administers a programinvolving Federal financial assistance shallrequire as a condition for the approval ofany grant, contract, loan, insurance, orguarantee thereunder, which may involvea construction contract, that the applicantfor Federal assistance undertake andagree to incorporate, or cause to be in-corporated, into all construction contractspaid for in whole or in part with fundsobtained from the Federal Governmentor borrowed on the credit of the FederalGovernment pursuant to such grant, con-tract, loan, insurance, or guarantee, orundertaken pursuant to any Federal pro-gram involving such grant, contract, loan,insurance, or guarantee, the provisionsprescribed for Government contracts bySection 203 of this Order or such modifi-cation thereof, preserving in substancethe contractor's obligations thereunder,as may be approved by the Secretary ofLabor, together with such additional pro-visionsas the Secretary deems appropri-ate to establish and protect the interestof the United States in the enforcementof those obligations. Each, such applicantshall also undertake and agree (1) toassist and cooperate actively with theadministering department or agency andthe Secretary of Labor in obtaining thecompliance of contractors and subcon-tractors with thosecortract provisions andwith the rules, regdistions, and relevantorders of the Secretam, (2) to obtain and

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to furnish to the administering departmentor agency and to the Secretary of Laborsuch information as they may require forthe supervision of such compliance, (3)to carry out sanctions and penalties forviolation of such obligations imposed uponcontractors and subcontractors by theSecretary of Labor or the administeringdepartment or agency pursuant to Part11, Subpart D, of this Order, and (4) torefrain from entering into any contractsubject to this Order, or extension orother modification of such a contract witha contractor debarred from Governmentcontracts under Part II, Subpart D, of thisOrder.

Sec. 302. (a) "Construction contract"as used in this Order means any contactfor, the construction, rehabilitation, altara-tion, conversion, extension, or repair ofbuildings, highways, or other improve-ments to real property.

(b) The provisions of Part 11 of thisOrder shall apply to such constructioncontracts, and for purposes of such appli-cation the administering department oragency shall be considered the contractingageficy referred to therein.

(c) The term "applicant" as used inthis Order means an applicant for Federalassistance or, as determined by agencyregulation, other program participant, withrespect to whom an application for anygrant, contract, loan, insurance, or guar-antee is not finally acted upon prior tothe effective date of this Part, and it in-cludes such an applicant after he becomesa recipient of such Federal assistance.

, .baSec. 303 (a) Each administering de-

partment and agency shall be responsiblefor obtaining the compliance of such ap-plicants with their undertakings underthis Order. Each administering depart-ment and agency is directed to cooperate

with the Secretary of Labor, and to.furnishthe Secretary such information and assis-tance as he may require in the perform-ance of his functions under this Order.

(b) In the event an applicant fails andrefuses to comply with his undertakings;the administering department or agencymay take any or all of the following ac-tions: (1) cancel, terminate, or suspendin whole or in part the agreement, con-tract, or other arrangement with suchapplicant with respect to which the failureand refusal occurred; (2) refrain fromextending any further assistance to theapplicant under the program with respectto which the failure or refusal .Iccurreduntil satisfactory assurance of future com-pliance has been received from such ap-plicant; and (3) refer the case to the De-partment of Justice for appropriate legalproceedings.

(c) Any action with respect to an ap-plicant pursuant to Subsection (b) shallbe taken in conformity with Section 602of the Civil Rights Act of 1964 (and theregulations of the administering depart-ment or agency issued thereunder), to theextent applicable. In no case shall actionbe taken with respect to an applicant pur-suant to Clause (1) or (2) of Subsection(b) without notice and opportunity forhearing before the administering depart-ment or agency.

Sec. 304. Any executive departmentor agency which imposes by rule, regula-tion, or order requirements of non-dis-crimination in employment, other thanrequirements imposed pursuant to thisOrder, may delegate to the. Secretary cLabor by agreement such responsibilitieswith respect to compliance standards, re-ports, and procedures as would tend tobring the administration of such require-ments into conformity with the adminis-tration of requirements imposed underthis Order: Provided, That actions to effectcompliance by recipients of Federal finan-

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cial assistance with requirements imposedpursuant to Title VI of the Civil RightsAct of 1964 shall be taken in conformitywith the procedures and limitations pre-scribed in Section 602 thereof and theregulations of the administering depart-ment or agency issued thereunder. PART IVMiscellaneous

Sec. 401. The Secretary of Labor maydelegate to any officer, agency, or em-ployee in the Executive branch of theGovernment, any function or duty of theSecretary under Parts II and III of thisOrder, except authority to promulgaterules and regulations of a general nature.

Sec. 402. The Secretary of Labor shallprovide administrative support for theexecution of the program known as the"Plans for Progress."

Sec. 403. (a) Executive Orders Nos.10590 (January 18, 1955), 10722 (Au-gust 5, 1957), 10925 (March 6, 1961),11114 (June 22, 1963), and 11162 (July28, 1964) are hereby superseded and thePresident's Committee on Equal Employ-ment Opportunity established by Execu-tive Order No. 10925 is hereby abolished.All records and property in the custody ofthe Committee shall be .transferred to theCivil Service Commission and the Secre-tary of Labor, as appropriate.

(b) Nothing in this Order shall bedeemed to relieve any person of any ob-ligation assumed or imposed under orpursuant to any executive order super-seded by this Order. All rules, regulations,orders, instructions, designations, andother directives issued by the President'sCommittee on Equal Employment Oppor-tunity and those issued by :the heads ofvarious departments or agencies underor pursuant to any of the executive orders

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superseded by this Order, shall, to theextent that they are not inconsistent withthis C der, remain in full force and effectunless and until revoked or superseded byappropriate authority. References in suchdirectives to provisions of the supersededorders shelf be deemed to be referencesto the comparable provisions of this Order.

Sec, 404. The General Services Admin-istration shall take appropriate action torevise the standard Government contractforms to accord with the provisions ofthis Order and of the rules and regulationsof the Secretary of Labor.

Sec. 405. This Order shall becomeeffective 30 days, after the date of thisOrder.

The Department of Labor is responsiblefor enforcement of this Executive Order.Contract compliance responsibilities havebeen assigned to the Department ofHealth, Education, and Welfare for HEW-assisted construction contractors and forgovernment contractors in the followingindustries:

Insurance

Insurance Agents

Medical, Legal and Education Services

Museums, Art Galleries

Non-Profit Organizations

Certain State and Local Governments

Within the Department of Health, Educa-tion, and Welfare, the contract complianceprogram is administered by

Contract Compliance Division

Office for Civil Rights

Washington, D.C. 20201

(202) 963-5707

(An inquiry concerning insurance com-panies as government contractors shouldbe directed to the Special Staff for LaborRelations and Equal Employment. Oppor-tunity, Social Security Administration,Baltimore, Maryland 21235.)

Requests for additional information regardingthe HEW civil rights compliance program may6e directed to the Office for Civil Rights inWashington, D. C. or to the Regional Officeserving your State.

TA B B

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FEDERALREGISTERVOLUME 33 NUMBER 104Tuesday, May 28, 1968 Washington, D.C.

PART II

Department of LaborOffice of Federal Contract Compliance

Obligations of Contractorsand Subcontractors

NO. 104--Pt.

Title 41 PUBLIC CONTRACTS

AND PROPERTY MANAMITChapter 60-Office of Federal Con-

tract Compliance, Equal Employ-ment Opportunity, Depcntment ofLabor

REVISION OF CHAPTERChapter 60 of Title 41 of the Code of

Federal Regulations was originallyissued by the President's Committee onEqual Employment Opportunity for thepurpose of implementing ExecutiveOrder 10925 (3 CFR, 195t1 -63 Comp., p.448) which provided for the promotionand insurance of equal employment op-portunity on Government contracts forall persons without regard to race, creed,color, or national origin. Subsequently,the Committee revised this part in orderto implement, in addition, ExecutiveOrder, 11114 (3 CFR, 1959-1963 Comp.,p. 774) which provided certain amend-ments to EXecuttve Order 10925 andextended its requirements to certaincontracts for construction financed withassistance from the Federal Govern-ment. Parts II and III of ExecutiveOrder 11246 (30 P.R. 12319, Sep. 28, 1965)vested in the Secretary of Labor thefunctions related to GovernMent con-tracts and Federally assisted construc-tion contracts previously exercised bythe President's Committee on EqualEmployment Opportunity. Section 201 ofExecutive Order 11246 provides that theSecretary of Labor shall adopt rules,regulations, and _orders as lie deemsnecessary and apProPriate to achievethe purposes of the order. Temporaryregulations were adopted effective Octo-ber 24, 1965 (30 1.3441), continuingin effect the previous regulations of the(President's Committee on Equal Em-ployment Opportunity, and orders wereissued effective June 1, 1966 (31 F.R.6881), and May 9, 1967 (32 P.R. 7439).

On February 15, 1968, notice of pro-posed rule. Making was published in theFEDERAL REGISTER (33 P.R. 3000) whichincluded the substance of the aforesaidorders and, other amendments and revi-sions. Persons interested in the proposalswere given until March 15, 1968, to sub-mit written data, views, or argumentconcerning them.

Having considered all relevant mate-rial submitted, I have decided to, and dohereby revise 41 CFR Chapter 60. As re-vised, 41 CFR Chapter 60 reads asfollows:

PART 60-l--OBLIGATIONS OF CON -.TRACTORS AND SUBCONTRACTORS

Subpart A-Preliminary -Matters; Equal Oppor-tunity Clause; Compliance Reports

Sec.60-1.1 Purpose and application.60-1.2 Administrative reaponsibtlity.60-1.3 Definitions.60-1.4 Equal opportunity clause.60-1.6 Exemptions.60-1.6 Duties of agencies.60-1.7 Reports and other required infor-

mation.

- B2 -RULES AND REGULATIONS

See.60-18 Begregated

480-19 Compliance by labor Ratans and byrecruiting and training &rendes.

Subpart 6- General Enforcement; ComplianceReview and Complaint Procedure

60-1.20 Compliance reviews.60-1.21 Who may file cnrnpinints60-1.22 Where to file.60-1.23 Contents of complaint.60-1.24 Processing of matters by agencies.60-1.25 Assumption of jurisdiction by or

referrals to the Director.80-1.26 Neat-ins:60-1.27 Sanctions and penalties.60-1.28 Show cause notices.60-1.29 Preaward notices.50-1.30 Contract Ineligibility list.60-1.31 Reinstatement of ineligible con-

tractors or subcontractors.60-1.32 Intimidation and interference.

Subpart C.-Ancillary Matters60-1.40 Affirmative action compliance pro-

grams.60-1.41 Solicitations or advertisements for

employees.60-1.42 Notices to be posted.60-1.43 Accesi to records of employment.68-L44 Rulings and Interpretations.60-1.45 Existing contracts and sttbeontracts.60-1.46 Delegation of authority by the

Director.60-1.47 Effective date.

Atrxsioarry: The provisions of this Part60 -1 issued pursuant to sec. 201, E.O. 11246(30 P.R. 12319).

Subpart A-Preliminary Matters;Equal Opportunity Clause; Com-pliance Reports

§ 60-13 Purpose and application.The purpose of the regulations in this

Part is to achieve the aims of Parts II,III, and IV of Executive Order 11246 forthe promotion and insuring of equal op-portunity for all persons, without regardto race, creed, color, or national origin,employed or seeking employment withGovernment contractors or with contrac-tors performing under federally assistedconstruction contracts. The regulationsin this part apply to all contractingagencies of the Government and to con-tractors and subcontractors who performunder Government contracts, to the ex-tent set forth in this part. The regulationsin this part also apply to all agencies ofthe Government administering programsinvolving Federal financial assistancewhich may include a construction con-tract, and to all contractors and sub-contractors performing under construc-tion contracts which are related to anysuch programs. The procedures set forthin the regulations in this part govern alldispeis relative to a contractor's com-pliance with his obligations under, theequal opportunity clause regardless ofwhether or not his contract contains ft-"Disputes" clause. Failure of a contractoror applicant to comply with any pro-vision of the regulations in this part shallbe grounds for the imposition of anyor all of the sanctions authorized by theorder. The regulations in this part donot apply to any action taken to effectcompliance with respect to employmentpractices subject to Title VI of the. CivilRights ACt of 1964. The rights and

remedies of the Government hereunderare not exclusive and do not affectrights and remedies provided elsewhereby law, regulation, or contract; neitherdo the regulations limit the exercise bythe Secretary or Government agenciesof powers not herein specifically setforth, but granted to them by the order.§ 60-1.2 Administrative responsibility.

Under the general direction of theSecretary, the Director has been dele-gated authority and assigned responsi--bility for carrying out the responsibilitiesassigned tx,) the Secretary under the or-der, except the power to issue rules andregulations of a general nature. All cor-respondence regarding thz order shouldbe directed to the Director, Office of Fed-eral Contract Compliance. U.S. Depart-ment of Labor, 14th and ConstitutionAvenue NW., Washington, D.C. 20210.§ 60-1.3 Definitions.

(a) The term "administering agency"means any department, agency and es-tablishment in the Executive Branch ofthe Government, including any whollyowned Government corporation, whichadministers a program involving fed-erally Qf5isted construction contracts.

(b) The term "agency" means anycontracting or any administering agencyof the Government.

(c) The term "applicant" means anapplicant for Federal assistance involv-ing a construction contract, or other par-ticipant in a program involving a con-struction contract as determined by regu-lation of an administering agency. Theterm also includes such persons afterthey become recipients of such Federalassistance.

(d) The term "Compliance Agency"gleans the agency designated by the Di-rector on a geographical industry orother basis to conduct compliance reviewsand to undertake such other responsi-bilities in connection with the adminis-tration of the order as the Director maydetermine to be appropriate. In theabsence of such a designation, the Com-pliance Agency will be determined asfollows:

(1) In the case of a prime contractornot involved in construction work, theCompliance Agency will be the agencywhose contracts with the prime con-tractor have the largest aggregate dollarvalue;

(2) In the case of a subcontractor notinvolved in construction work, the Com-pliance Agency will be the ComplianceAgency of the prime contractor withwhich the subcontractor has the largestaggregate value of subcontracts or pur-chase orders for the perforniance ofwork under contracts;

(3) In the case of a prime contractoror subcontractor involved in construc-tion work, the Compliance Agency foreach construction project will be theagency providing the largest dollar valuefor the construction project; and

(4) In the case of a contractor who isboth a prime contractor and sub-contractor, the Compliance Agency willbe determined as if such contractor is aprime contractor only.

FEDERAL REGISTER, VOL 33, NO. 104- TUESDAY, MAY 28, 1968

(e) The term "construction work"means the construction, rehabilitation,alteration, conversion, extension, demoli-tion or repair of buildings, highways, orother changes or improvements to realproperty, including facilities providingutility services. The term also includesthe supervision, inspection, and otheronsite functions incidental to the actualconstruction.

(f) The term "contract" means anyGovernment contract or any federallyassisted construction contract.

(g) The term "contracting agency"means any department, agency, estab-lishment, or instrumentality in the Ex-ecutive Branch of the Government, in-cluding any wholly owned Governmentcorporation, which enters into contracts.

(h) The term "contractor" means,unless otherwise indicated, a prime con-tractor or subcontractor.

(1) The term "Director" means theDirector, Office of Federal ContractCompliance, U.S. Department of Laboror any person to whom he delegatesauthority under the regulations in thispart.

(j) The term "equal opportunityclause" means the contract provisionsset forth in § 60-1.4 (a) or (b) , as ap-propriate.

(k) The term "federally assisted con-struction contract" means any agree-ment or modification thereof betvenany applicant and a person for construc-tion work which is paid for in whole vrin part with funds obtained from theGovernment or borrowed on the creditof the Government pursuant to anyFederal program involving a grant, con-tract, loan, insurance, or guarantee, orundertaken pursuant to any Federal pro-gram involving such grant, contract,loan, insurance, or guarantee, or anyapplication or modification thereof ap-proved by the Government for a grant,contract, loan, insurance, or guaranteeunder which the applicant itself par-ticipates in the construction work,

(I) The term "Government" meansthe Government of the United States ofAmerica.

(m) The term "Government contract"means any agreement or modificationthereof between any contracting agencyand any person for the furnishing ofsupplies or services or for the use of railor personal property, including leasearrangements. The term "services". asused in this section includes, but la notused in this definition includes, but is notlimited to the following services: Utility,constructial, transportation, research,insurance, and fund depositary. The term"Government contract" does not include'(1) agreements in which the partiesstand in the relationship of employer andemployee, and (2) federally assisted con-struction contracts.

(n) The term "hearing officer" meansthe individual or board of individualsdesignated to conduct hearings.

(o) The term. "modification" meansany alteration in the terms and condi-tions of a contract, including supple-mental agreements, amendments, andextensions.

- B3 -RULES AND REGULATIONS

(p) The term "Order" means Parts II,III, and IV of the Executive Order 11246dated September 24, 1965 (30 P.R.12319) , any Executive order amendingsuch order, and any other Executiveorder superseding such order.

(q) The term "person" means anynatural person, corporation, partnership,unincorporated association, State or lo-cal government, and any agency, instru-mentality, or subdivision of such agovernment.

(r) The term "prime contractor"means any person holding a contractand, for the purposes of Subpart B ofthis part, any person who has held acontract subject to the order.

(s) The term "recruiting and trainingagency" means any person who refersworkers to any contractor or subcon-tractor, or who provides or supervises ap-prenticeship or training for employmentby any contractor or subcontractor.

It) The term "rules, regulations, andrelevant orders of the Secretary of Labor"used in paragraph (4) of the equal op-portunity clause means rules, regula-tions, and relevant orders of the Secre-tary of Labor or his designee issued pur-suant to the order.

(u) The term "Secretary" means theSecretary of Labor, U.S. Department ofLabor.

(v) The term "site of construction"means the general physical location ofany building, highway, or other changeor improvement to real property which isundergoing construction, rehabilitation,alteration, conversion, extension, demoli-tion, or repair and any temporary loca-tion or facility at which a contractor,subcontractor, or other participatingParty meets a demand or performs afunction relating to the contract orsubcontract.

(w) The term "subcontract" meansany agreement or arrangement betweena contractor and any person (in whichthe parties do not stand in the relation-ship of an employer and an employee) :

(1) For the furnishing of supplies orservices or for the use of real or personalproperty, including lease arrangements,which, in whole, or in part, is necessaryto the performance of any one or morecontracts; or

(2) Under which any portion of thecontractor's 4bligation under any one, ormore contracts is TIerformed, undertaken,or assumed,

(x) The term "subcontractor" meansany person holding a subcontract and,for the purposes of Subpart B of this part,any person who has held a subcontractsubject to. the order. The term "First-tier subcontractor" refers to a subcon-tractor holding a subcontract with aprime contractor.

(y) The term "United States" as usedherein shall include the several States,the District of Columbia, the Common-wealth of Puerto Rico, the Panama CanalZone, and the possessions of the UnitedStates.§ 60-1.4 Equal opportunity clwase.

(a) Government contracts. Except asotherwise provided, each contractingagency shall include the following equal

opportunity clause contained in section202 of the order in each of its Govern-ment contracts (and modifications there-of if not included in the original con-tract) :

During the performance of this contract.the contractor agrees as follows:

(1) The contractor will not discriminateagainst any employee or applicant for em-ployment because of race. creed, color, ornational origin. The contractor will tilke af-firmative action to ,ensure that applicantsare employed, and th....t employees are treatedduring employment without regard to theirrace, creed, color, -,r national origin. Suchaction shall include, but not be limited tothe following: Employment. upgrading. de-motion, or transfer, recruitment or recruit-ment advertising: layoff or termination: rates,of pay or other forms of compensation; andselection for training, including apprentice-ship. The contractor agreer to post in con-spicuous places. available to employees andapplicants for employment, notices to be pro-vided by the contracting officer setting forththe provisions of this nondiscriminationclause.

(2) The contractor will, in all solicitationsor advertisements for employees placed by oron behalf of the contractor, state that allqualified applicants will reed* considerationfor employment without regard to race, creed,color, or national origin.

(3) The contractor will send to each laborunion or representative of workers with whichhe has a collective bargaining agreement orother contract or understanding, a notice tobe provided by the agency contracting officer,advising the labor union or workers' rep-resentative of the contractor's commitmentsunder section 202 of Executive Order 11246of September 24, 1965, and shall post copiesof the notice in conspicuous places availableto employees and applicants for employment,

(4) The contractor will comply with allprovisions of Executive Order 11246 of Sep-tember 24, 1965, and of the rules, regulations,and relevant orders of the Secretary of Labor.

(5) The contractor will furnish all infor-mation and reports required by ExecutiveOrder 11246 of September 24, 1965, and bythe rules, regulations, and orders of the Sec-retary of Labor, or pursuant thereto, andwill permit access to his books, records, andaccounts by the contracting agency and theSecretary of Labor for purposes of investiga-tion to ascertain compliance with such rules,regulations, and orders.

(6) In the event of the contractor's non-compliance with the nondiscriminationclauses of this contract or with any of suchrules, regulations, or orders, this contractmay be.canceled, terminated or suspended inwhole or in part and the contractor may bedeclared ineligible for further Governmentcontracts in accordance with procedures au-thorized in Executive Order 11246 of Sep-tember 21, 1965, and such other sanctionsmay be imposed and remedies Invoked asprovided in Executive Order 11246 of Septem-ber 24., 12.;;J, or by rule, regulation, or orderof the Secretary of Labor, or as otherwiseprovided by law.

(7) The contractor will include the provi-sions of paragraphs (1) through (7) in everysubcontract or purchase order unless ex-empted by rules, regulations, or orders ofthe -Secretary of Labor issued pursuant tosection 204 of Executive Order 11246 of Sep-tember 24, 1985, so that such provisions willbe binding upon each subcontractor or ven-dor. The contractor will take such actionwith respect to any subcontract or purchaseorder as the contracting agency may directas a means of enforcing such provisions in-cluding sanctions for noncompliance: Pro-vided, however, That In the event the con-tractor becomes involved in,. or is threatened

FEDERAL REGISTER, VOL 33, NO. 104TUESDAY, MAY 28, 1968

with, litigation with a subcontractor or ven-dor as a result of such direction by the con-tracting agency, the contractor may requestthe United States to enter into such litiga-tion to protect the Interests of the UnitedStates,

(b) Federally assisted constructioncontracts. Except as otherwise provided,each administering agency shall requirethe inclusion of the following languageas a condition of any grant, contract,loan, insurance, or gilarantee involvingfederally assisted construction which isnot exempt from the requirements of theequal opportunity clause;

The applicant hereby agrees that it willincorporate or cause to be incorporated intoany contract for construction work, or modi-fication thereof, as defined in the regula-tions of the Secretary of Labor at 41 CFRChapter 60, which is paid for in whole or inpart with funds obtained from the FederalGovernment or borrowed on the credit of theFederal Government pursuant to a grant,contract, loan, insurance, or guarantee, orundertaken pursuant to any Federal programinvolving such grant, contract, loan, insur-ance, or guarantee, the following equal op-portunity clause:

During the performance of this contract,the contractor agrees as follows:

,(1) The contractor will not discriminateagainst any employee or applicant for em-ployment because of race, creed, color, ornational origin. The contractor will takeaffirmative action to ensure that applicantsare employed, and that employees are treatedduring employment without regard ,to theirrace, creed, color, or national origin. Suchaction shall include, but not be limited tothe following: Employment, upgrading, de-motion, or transfer; recruitment or recruit-ment advertising; layoff or termination;rates of pay or otirar forms of compensa-tion; and selection for training, includingapprenticeship. The contractor agrees to postin conspicuous places, available to employeesand applicants for employment, notices tobe provided setting forth the provisions ofthis nondiscrimination clause.

(2) The contractor will, in all solicitationsor advertisements for employees pia ed byor on behalf of the contractor, state thatall qualified applicants will receive con-sideration for employment without regard torace, creed, color, or national origin.

(3) The contractor will send to eachlabor union or representative of workersWith which he has a. collective bargainingagreement or other contract or under-standing, a notice to be provided advisingthe said labor union or workers' represen-tatives of the contractor's commitmentsunder this section, and shall post copies ofthe notice in conspicuous places availableto employees and applicants for employment.

(4) The contractor will comply with allprovisions of Executive Order 11246 ofSeptember 24, 1965, and of the rules, regu-lations, and relevant orders of the Secretaryof Labor.

(5) The contractor will furnish all in-formation and reports required by Execu-tive Order 11246 of September 24, 1965, anaby rules, regulations, and orders of theSecretary of Labor, or pursuant thereto, andwill permit access to his books, records, andaccounts by the administering agency andthe Secretary of Labor for purposes of in-:vestigatIon to ascertain compliance with'such rules, regulations, and orders.

(6) In the event of the contractor's non-compliance with the nondiscriminationclauses of this con' -act or with any of thesaid rules, regulatkas, or orders, this oon-tract may be canceled, terminated, orsuspended in whole or in part and the

- B4 -RULES AND REGULATIONS

contractor may be declared ineligible forfurther Government contracts or federallyassisted construction :contracts in accord-ance with procedures authorized in ExecutiveOrder 11246 of September 24, 1965, and suchother sanctions may be imposed and reme-dies invoked as provided in Executive Order11246 of September 24. 1965, or by rule, regu-lation, or order of the Secretary of Labor,or as otherwise provided by law.

(7) The contractor will include the por-tion of the sentence immediately precedingparagraph (I) and the provisions of para-graphs (1) through (7) in every subcon-tract or purchase order unless exempted byrules, regulations, or orders of the Sc.,:retaryof Labor issued pursuant to section 204 ofExecutive Order 11246 of September 24, 1965,so that such provisions will be binding uponeach subcontractor or vendor. The contractorwill take such action with respect to anysubcontract or purchase order as the ad-ministering agency may direct as a meansof enforcing such provisions, including sanc-tions for noncompliance: Provided, however,That in the event a contractor becomes In-volved in. or is threatened with, litigationwith a subcontractor or vendor as a result ofsuch direction by the administering agency,the contractor may request the UnitedStates to enter Into such litigation to pro-tect the interests of the United States.

The applicant further agrees that it willbe bound by the above equal opportunityclause with respect to its own employmentpractices when it participates in federallyassisted construction work: Provided, Thatif the applicant so participating is a State orlocal goveffnment, the above equal opportu-nity clause is not applicable to any agency,instrumentality or subdivision of such gov-erninent which does not participate in workon or under the contract.

The applicant agrees that it will assist andcooperate actively with the administeringagency and the Secretary of Labor in ob-taining the compliance of contractors andsubcontractors with the equal opportunityclause and the rules, regulations, and rele-vant orders of the Secretary of Labor, that itwill furnish the administering agency andthe Secretary of Labor such information asthey may require for the supervision of suchcompliance, and that it will otherwise assistthe administering agency in the discharge ofthe agency's primary responsibility for secur-ing compliance.

The applicant further agrees that it willrefrain from entering into any contract orcontract modification subject to ExecutiveOrder 11246 of September 24, 1965, with acontractor 'debarred from. or who has 'notdemonstrated eligibility for, Governmentcontracts and federally assisted constructioncontracts pursuant to the Executive orderand will carry out such sanctions and penal-ties for violation of the equal opportunityclause as may, be Imposed upon contractorsand subcontractors by the administeringagency or the Secretary of Labor pursuant toPart IT, Subpart D of the Executive order.In addition, the applicant agrees that if itfans or refuses to comply with these under-takings, the administering agency maytake any or all of the following actions;Cancel, terminate, or suspend in whole or inpart this grant. (contract, loan, insurance,guarantee); refrain from extending any fur-ther assistance to the applicant under theprogram with respect to which the failureor'refund occurred until satisfactory assur-ance of future oompliance has been receivedfrom such applicant; and refer the case tothe Department of Justice for appropriatelegal proceedings: .

(c) Subcontracts, Each nonexemptprime contractor or subcontractor shallinclude the equal opportUnity clause ineach of its nonexempt subcontracts.

(d) Incorporation kit reference. Theequal opportunity clause may be incor-porated by reference in Government billsof lading, transportation requests, con-tracts for deposit of Government funds,contracts for issuing and paying U.S.savings bonds and notes, contracts andsubcontracts less than $50,000 and suchother contracts as the Director maydesignate.

(e) Incorporation by operation of theorder and agency regulations. By opera-tion of the order, the equal opportunityclause shall be considered to be a partof every contract and subcontract re-quired by the order and the regulationsin this part to include such a clausewhether or not it is physically incorpo-rated in such contracts. The clause mayalso be applied by agency regulations toevery nonexempt contract where thereis no written contract between theagency and the contractor.

(f) Adaptation of language. Suchnecessary changes in language may bemade in the equal opportunity clause asshall be appropriate to identify properlythe parties and their undertakings.§ 60-1.5 Exemptions.

(a) General--(1) Transactions of$10,000 or under. Contracts and 'subcon-tracts not exceeding $10,000, other thanGovernment bills of lading, are exemptfrom the requirements of the equal op-portunity clause. In determining theapplicability of this exemption to anyfederally assisted construction contract,or subcontract thereunder, the amountof such contract or subcontract ratherthan the amount of the Federal financialassistance shall govern. No agency, con-tractor, or subcontractor shall procuresupplies or services in less than usualquantities to avoid applicability of theequal opportunity clause.

(2) Contracts and subcontracts -forindeftnite quantities. With respect tocontracts and subcontraCtS for indefinitequantities (including, but not limited to,open end contracts, requirement-tyPecontracts, Federal Supply Schedule con-tracts, "call-type" contracts, and pur-chase notice agreements), the equalopportunity clause shall be included un-less the purchaser has reason to believethat the amount to be ordered in anyyear under such contract will not exceed$10,000, The applicability of the equalopportunity clause shall be determinedby the purchaser at the time of award forthe first year, and annually thereafterfor succeeding years, if any. Notwith-standing the above, the equal oppor-tunity clause shall be applied to suchcontract whenever the amount of asingle order exceeds $10,000. Once theequal opportunity clause is determined tobe applicable, the contract shall continueto be subject to such clause for its dura-tion, regardless of the amounts ordered,or reasonably expected to be ordered inany year.

(3) Work outside the United States.Contracts and subcontracts are exemptfrom the requirements of the equal op-portunity clause with regard to workperformed outside the United States by

FEDERAL REGISTER, VOL- 33, tiO. 104TUESDAY, MAY 28, 1968

employees who were not recruited withinthe United Sta tes.

(4) Contracts with State or loco/ gov-ernments. The requirements of the equalopportunity clause in any contract orsubcontract with a State or local govern-ment (or any agency, instrumentality orsubdivision thereof) shall not be ap-plicable to any agency. instrumentalityor subdivision of such government whichdoes not participate in work on or underthe contract or subcontract. In addition,State and local governments are exemptfrom the requirements of filling the an-nual compliance report provided for by§ 60-1.7(a) (1) and Maintaining a writtenaffirmative action compliance programprescribed by § 60-1.40.

(b) Specific contracts and facilities(1) Specific contracts. The Director mayexempt an agency or any person from re-quiring the inclusion of any or all of theequal opportunity clause in any specificcontract or subcontract when he deemsthat special circumstances in the na-tional interest so require, The Directormay also exempt groups or categories ofcontracts or subcontracts of the sametype where he finds it impracticable toact upon eadh request individually orwhere group exemptions will contributeto convenience in the administration ofthe order.

(2) Facilities not connected with con-tracts. The Director may exempt fromthe requirements of the equal oppor-tunity clause any of a prime contractor'sor subcontractor's facilities which hefinds to be in all respects separate anddistinct from activities of the prime con-tractor or subcontractor related to theperformance of the contract or subcon-tract, provided that he also finds thatsuch an exemption will not interfere withor impede the effectuation of the order.

(c) National security. Any require-ment set forth in these regulations in thispart shall not apply to any contract orsubcontract whenever the head of anagency determines that such contract orsubcontract is essential to the nationalsecurity and that its award without com-plying with such requirement is neces-sary to the national security. Uponmaking such a determination, the headof the agency will notify the pirector inwriting within 30 days.

(d) Withdrawal of exemption, Whenany contract or subcontract is of a classexempted under this section,'the Directormay withdraw the exemption for aspecific contract or subcontract or groupof contracts or subcontracts when in hisjudgment such action is necessary orappropriate to achieve the purposes ofthe order. Such withdrawal shall notapply to contracts or subcontractsawarded prior to the withdrawal, exceptthat in procurements entered into byformal advertising, or the various formsof restricted formal advertising, suchwithdrawal shall not apply unless thewithdrawal is made more than 10 calen-dar days before the date set for theopening of the bids.§ 60-1.6 Duties of agencies.

(a) Genera1 responsibility. Eachagency shall be primarily responsible for

- B5 -RULES AND REGULATIONS

obtaining compliance with the equal op-portunity clause, the order, the regula-tions in this, part, and orders issuedpursuant thereto. Each agency shallcooperate with the Director and shallfurnish him such information and assist,.anc6 as he may require in the perform-ance of his functions under the order.Such information shall include compli-ance review reports, schedules ofcompliance reviews and any other infor-mation relevant to the administrationof the order.

(b) Agency program. The head of eachagency shall, subject to the priorapproval of the Director, establish aprogram and promulgate procedures tocarry out 43ie agency's responsibilities f or-obtaining compliance with the order andregulations and orders issued pursuantthereto. Each agency head shall alsodesignate a Contract Compliance Officer,who (unless otherwise approved by theDirector) shall be appointed by the headof the agency from among the agency'sexecutive personnel too whom the Ex-ecutive Schedule applies, and such officershall be subject to the immediate super-vision of the head of the agency. Alcompliance reviews required pursuantto the regulations in this part and suchother compliance reviews as the ContractCompliance Officer determines to be ap-propriate shall be conducted by him orhis designee. The head of the agency orthe Contract Compliance Officer may alsodesignate a Deputy Contract ComplianceOfficer to assist the Contract ComplianceOfficer in the performance of his duties.The names of the Contract ComplianceOfficers and the Deputy Contract Com-pliance Officers, their addresses and tele-phone numbers, and any changes madein their designation shall be furnished tothe Director.

(c) Agency regulations. The head ofeach agency shall prescribe regulationsfor the administration of the order andthe regulations in this part. Agencyregulations, directives and orders forsuch purpose must be submitted to theDirector prior to issuance and may beenforced upon approval of the Directoror 60 days after submission if not dis-approved by the Director.

(d) Award of contracts. Sixty daysafter the effective date of the regulationsin this part, each agency shall followthe procedures described below beforethe award of any nonexempt contractunless agency regulations providingalternative procedures have been issuedor are under review by the Director inaccordance with paragraph (c) of thissection. Such alternative procedures mayinclude monetary cutoffs and other limi-tations consistent with the agency re-sources and contracting processes.

(1) All Contracting Officers and offi-cers approving applications for Federalfinancial assistance involving a construc-tion contract shall notify the ContractCompliance Officer or appropriate Dep-uty . as soon as practicable of 'the im-pending award of each nonexempt con-tract, the name and address of the primecontractor, anticipated time of perform-ance, name and address of each knownsubcontractor, whether the prime con-

tractor and known subcontractors havepreviously held any Government con-tracts or federally assisted constructioncontracts subject to Executive Order10925, 11114, or 11246, and whether theprime contractor has previously filedcompliance reports required by Execu-tive Order 10925, 11114. or 11246, or byregulations of the Equal EmploymentOpportunity Commission issued pursuantto Title VII of the Civil Rights Act of1964.

(2) The Contract Compliance Officeror appropriate Deputy shall review theavailable information relative to the pro-spective prime contractor's equal oppor-tunity compliance status and notify theContracting Officer or Approving Officerof any deficiencies found to exist. A copyof such report shall be forwarded to theDirector.

(3) Contracting Officers or ApprovingOfficers shall: (I) Notify the bidder, of-feror, or applicant of any deficienciesfound to exist by the Contract Compli-ance Officer or appropriate Deputy. and(ii) direct any bidder, offeror or appli-cant so notified to negotiate with theContract Compliance Officer and to takesuch actions as the Contract ComplianceOfficer may require.

(4) The award of any such contractshall be conditioned upon the ContractCompliance Officer's notification to theContracting Officer or Approving Officerthat the bidder, offeror or applicant hastaken action or has agreed to take actionsatisfactory to the Contract ComplianceOfficer, appropriate Deputy, or the headof the agency as provided in § 60-1.20(b)Any such agreement to take action shallbe stated in the contract, if the ContractCompliance Officer so requires.

(e) Evaluations. The Director mayfrom time to time evaluate the programs,proOedures', and policies of agencies' inorder to assure their compliance with theorder and the regulations in this partand the compliance of mime contractorsand subcontractors with the equal oppor-tunity clause.§ 60-1.7 Reports and other required in-

formation.(a) Requirements for prime contrac-

tors and subcontractors. (1) Eachagency shall require each prime con-tractor and each prime contractor andsubcontractor shall cause its subcontrac-tors to file annually, on or before the 31stday of March, complete and accurate re-Ports on Standard Form 100 (EEO-1)promulgated jointly by the Office. of Fed-eral Contract Compliance, the EqualEmployment Opportunity Commissionand Plans for Progress or such form asmay hereafter be promulgated in itsplace if such prime contractor or sub-contractor (1) is not exempt from theprovisions of these regulations in accord-ance with § 60-1.5; (II) has 50 or moreemployees; (iii) is a prime' contractor orfirst tier subcontarctor; and (iv) has acontract, subcontract or purchase orderamounting to $50,000 or more or servesas a depositary of Government fundsin any amount, or is 'a financial institu-tion which is an issuing and Paying agentfor U.S. savings Lords and savings notes:

FEDERAL REGISTER, VOL 33, NO. 104TUESDAY, MAY 28, 1968

Provided, That any subcontractor belowthe first tier which performs construc-tion work at the site of construction shallbe required to file such a report if itmeets requirements of subdivisions (i),(ii) , and (iv) of this subparagraph,

(2) Each person required by § 60-1.7(a) (1) to submit reports shall file sucha report with the contracting or adminis-tering agency within 30 days after theaward to him of a contract or subcon-tract, unless such person'has submittedsuch a report within 12 months preeed-ing the date of .the award. Subsequentreports shall be submitted annually inaccordance. with § 60-1.7(a) (1), or atsuch other intervals as the agency or theDirector may require. The agency withthe approval of the Director may extendthe time for filing any report.

(3) The Director, the agency or theapplicant, on their own motions, mayrequire a prime contractor to keep em-ployment or other records and to fur-nish, it the form requested, within rea-sonable limits, such information as theDirector, agency or the applicant deemsnecessary for the administration of theorder.

(4) Failure to file timely, complete andaccurate reports as required constitutesnoncompliance with the prime contrac-tor's or subcontractor's obligations underthe equal opportunity ,clause and isgrounrt /or the imposition by the agency,the Director, an applicant, prime .con-tractor or subcontractor, of any sanc-tions as authorized by the order and theregulations in this part, Any such fail-nre shall be reported en writing to theDirector by the agency as soon as prac-ticable after it occurs.

(b) Requirements for bidders or pro-sPective contractors(1) Previous re-ports, Each agency shall require eachbidder or prospective prime contractorand proposed subcontractor, where ap-propriate, to state in the bid or at theoutset of negotiations for the contractwhether it has participated in any pre-vious contract or subcontract subject tothe equal opportunity clause; and, if so,whether it has filed with the JointReporting Committee, the Director, an:agency, or the former President's' Committee on. Equal Employment Opportunity all reports due under the appli-cable filing requirements. In any case inwhich a bidder or prospective prime con-tractor or proposed subcontractor whichParticipated in a previous contract orsubcontract subject to Execute. s Order10925, 11114, or 11246 has not flied a re-port due under the applicable filing re-quirements, no contract or subcontractshall be awarded unless such contractorsubmits a report covering the delinquentperiod or such other period specified bythe agency or the Director.

(2) Additional information. A bidderor prospective prime contractor or pro-posed subcontractor shall be required tosubmit such information as the agencyor the Director, requests prior to theaward of the 'contract or subcontract.When a determination has been madeto award the contract or subcontract toa specific contractor, such contractor

- B6 -RULES AND REGULATIONS

shall be reauired, prior to award, or afterthe award, or both, to furnish such otherinformation as the agency, the applicant,or the Director requests.

(c) Use of reports. Reports filed pur-suant to this section shall be used only inconnection :nth the administration ofthe order, the Civil Rights Act of 1964,or in furtherance of the purposes of theorder and said Act.§ 60-1.8 Segregated facanics.

(a) General. In order to comply w".hhis obligations under the equal oppor-tunity clause. a prime contractor or sub-contractor must ensure that facilitiesprovided for employees are provided insuch a manner that segregation on thebasis of race, creed, color, or nationalorigin cannot result. He may neitherrequire such segregated use by writtenor oral policies nor -tolerate such use byemployee custom. His obligation extendsfurther to ensuring that his employeesare not assigned to perform their servicesat any location, under his control, wherethe facilities are segregated. This obli-gation extends to all contracts contain-ing the equal opportunity clause regard-less of the amount of the contract. Theterm "facilities" as used in this sectionmeans waiting rooms, work areas, res-taurants and other eating areas, timeclocks, restrooms, wash rooms, lockerrooms, and other storage or dressingareas, parking lots, drinking fountains,recreation or entertainment areas, trans-portation, and housing facilities providedfor employees.

(b) Certification by primetoand subcontractors. Prior to the award

of any, nonexempt Government contractor subcontract or federally assisted con-struction contract or subcontract, eachagency or applicant shall require theprospective prime contractor and eachprime contractor and subcontractor shallrequire each subcontractor to submit, acertification, in the form approved bythe Director, that die prospective primecontractor or subcontractor does not andwill not maintain any facilities he pro-vides for his employees in a segregatedmanner, or permit his employees to per-form their services at any location,under his control, where segregated facll-ities are maintained; and that he willobtain a similar certification in the formapproved by the Director, prior to theaward of any nonexempt subcontract.§ 60-1.9 Compliance by labor unions

and by recruiting and training agerecies.

(a) Whenever compliance with theequal opportunity clause may necessitatea revision of a collective bargainingagreement, the labor union or unionswhich are parties to such an agreementshall be given anadequate opportunity topresent their views to the Director.

its) The Director shall use his bestefforts, directly and through agencies,contractors, subcontractors, applicants,.State and local officials, public and pri-vate agencies, and all other available in-strumentalities, to cause any labor union,recruiting and *training agency or otherrepreoentative of Malts who are or may

be engaged in work under contracts andsubcontracts to cooperate with, and tocomply in the implementation of, thepurposes of the order.

(e) In order to effectuate the purposesof paragraph (a) of this, section. the Di-rector may hold hearings, public or pri-vate, with respect to the practices andpolicies of any such labor union or re-cruiting and training agency.

(d) The Director may notify any Fed-eral, State, or local agency of hisconclusions and recommendations withrespect to any such labor organizationor recruiting and training agency whichin his judgment has failed to cooperatewith himself, agencies, prime contrac-tors, subcontractors, or applicants incarrying out the purposes of the ordenThe Director also may notify the EqualEmployment Opportunity Commission,the Department of Justice, cr other ap-propriate Federal agencies whenever hehas reason to believe that the practicesof any such labor organization or agencyviolates Title VIE of the Civil Rights Actof 1964 or other provisions of Federallaw.

Subpart 13General -'Enforcement;Compliance Review and ComplaintProcedure

§ 60-1.20 Compliance reviews.(a) The purpose of a compliance re-

view is to determine if the pram con-tractor or 'subcontractor ma,intautsnondiscriminatory hiring and employ-,ment practices and is taking affirmativeaction to ensure that' applicants are em-ployed and that employees are placed,trainsd, upgraded, promoted, and other-wise treated during emeloyment withoutregard to race, creed, color, or nationalorigin. It shall consist of a comprehensiveanalysis and evaluation of each aspect ofthe aforementioned practices, policies.and conditions resulting therefrom.Where necessary, recommendations forappropriate sanctions shall be made.

(b) Where deficiencies are found toexist, reasonable efforts shall be made tosecure compliance through conciliationand persuasion. Before the contractorcan be found to be in compliance with theorder, it must make a specific commit-merit, in writing, to correct any suchdeficiencies. The commitment must in-clude the precise action to be taken anddates for completion. The time Periodalloted shall be no longer than theminimum period necessary to effect suchchanges. Upon approval of the ContractComplianze Officer, appropriate Deputyor the agency head of such commitment,the contractor may be' considered incompliance, on condition that the com-mitments are faithfully kept. The con-tractor shall be notified that making 'suchcommitments does not preclude futuredeterminations of noncompliance basedon a finding that the commitments asnot sufficient to achieve compliance.

(c) The Compliance Agency shall havethe primary responsibility for the con-duct of compliance. reviews. Agenciesshall institute programs for the regularoanduct of compliance reviews In ac-ecrdance with the Director's a-tdcielines,

FEDERAL REGISTER, VOL 33, NO. 104--TUESDAY, MAY 21, 1964

and shall also conduct compliance re-views in accordance with any special re-quests or instructions of the Director.Compliance reviews may also be con-ducted by the Director. Compliance re-views should be conducted 'by qualifiedspecialists regularly involved in equalopportunity programs.

(d) Each agency must include in theinvitation for bids for each formally ad-vertised supply contract which may re-sult in a bid of $1 million or more, anotice (in the form approved by theDirector) to prospective bidders that iftheir bid is in the amount of $1 million ormore, the apparent low responsiblebidder and his known first-tier subcon-tractors with subcontract of $1 millionor more will be subject to a compliancereview before the award of the contract.Before the award of any formally advertLsed supply contract of $1 millionor more, a pre-award compliance re-view of the prospective contractor andhis known first-tier $1 million subcon-tractors must be conducted by the Com-pliance Agency within 6 months priorto the award of the contract. If anagency other than the awarding agencyis the Compliance Agency, t'ne awardingagency will notify the Compliance Agen-cy and, request appropriate action andfinding in accordance with this sub-section. Comp lianre Agencies will pro-:1de awarding agencies with writtenreports of, compliance reviews> within30 days following the requests. In or-der to qualify for, the award of a con-tract, a contractor and such first-tiersubcontractors must be found on thebasis of such review to be able to complywith the equal opportunity clause orcarry out an acceptable program forcompliance as provided in paragraph (b)of this section.§ 60-1.21 Who may file complainta.

Any employee of any contractor orapplicant for employment with suchcontractor may, by himself or by anauthorized representative, file in writinga complaint of alleged discrimination inviolation of the equal opportunity clause.luch complaint is to be filed not laterthan 180 days from the date of thealleged discrimination, unless the timefor filing is extended by the agency or theDirector upon good cruse shown.§ 60-1.22 Where to file.

Complaints may be filed with theagency or with the Director. Those filedwith the Director may be referred to theagency for processing, or they may beprocessed in accordance with § 60-1.25.§ 60-1.23 Contents of complaint.

(a) The complaint should include thename, address, and telephooe number ofthe complainant, the name and addressof the prime contractor or subcontractorcommitting the alleged discrimination, adescription of the acts considered to bediscriminatory, and any other pertinentinformation which will assist in the in-vestigation and resolution of the com-plaint. The complaint shall be: signedby the complainant or his authorizedrepresentative.

B7 -RULES AND REGULATIONS

(b) Where a complaint contains in-complete information, the agency or theDirector shall seek promptly the heededinformation from the complainant. Inthe event such information is not fur-nished to the agency or the Directorwithin 60 days of the date of suchrequest, the case may be closed.§ 60-1.24 Processing of mat ters by

agencies.(a) Complaints. Where complaints are

filed with the agency, the ContractsCompliance Officer shall transmit a copyof the complaint to the Director within10 days after the receipt thereof.

(b) Investigations. The agency orCompliance Agency shall institute aprompt investigation of each complaintfiled with it or referred tai it, and shallbe responsible for developing a completecase record. A complete case record con-sists of the name and address of eachperson interviewed, and a summary ofhis statement, copies, or summaries ofpertinent documents, and a narrativesummary of the evidence disclosed in theinvestigation as it relates to each viola-tion-revealed. When a complaint is filedagainst a prime contractor or subcon-tractor who has contracts involving morethan one agency, unless otherwise pro-vided, the Compliance Agency shall con-duct the investigation and make suchfindings and determinations az shall beappropriate for the administration of the

(c) Resolution of matters. (1) If thecomplaint investigation by the agencypursuant to paragraph (b) of this sec-tion shows no violation of the equalopportunity clause, the agency shall soinform the Director. The t)trector mayreview the findings of the agency, andhe may request further investigation bythe agency or may, undertake such in-vestigation as he may deem appropriate.

(2) If any complaint investigation orcompliance review indicates a violationof the equal opportunity clause, the mat-ter should be resolved by informal meanswhenever possible. Such informal meansmay include the holding of a complianceconference by the agency. Each primecontractor and subcontractor shall beadvised that the resolution is subject toreview by the Director and may be dis-approved If he determines that suchresolution is not sufficient to achievecompliance.

(3) Where any complaint investiga-tion or compliance review: indicates aviolation of the equal opportunity clauseand the matter has not been resolved byinformal means, the Director or theagency, with the approval of the Direc-tor, shall afford the contractor an op-portunity for a hearing. If the final de-cision reached in accordance with theProvisions of § 80-1.26 is that a violationof the equal opportunity 'clause has takenplace, the Director, or the agency withthe approval of the Director, may causethe cancellation, termination, or sus-pension of any eontract or subcontract,cause a contractor to be debarred fromfurther contracts or subcontracts, ormey impose such other sanctions as areauthorized by the order.

(4) When a prime contractor or sub-contractor. without a hearing, shall havecomplied with the recommendations ororders of an agency or the Director andbelieves such recommendations or ordersto be erroneous, he shall, upon filing arequegt therefor within ten days of suchcompliance, be afforded an opportunityfor a hearing and review of the allegederroneous action by the agency or theDirector.

(5) For reasonable cause shown, theDirector or an agency head may recon-sider or cause to be reconsidered anymatter on his own motion or pursuantto a request.

(d) Reports to the Director. (1) With-in 60 days from receipt of a oomplalntby the agency, or within such additionaltime as may be allowed by the Directorfor good cause shown, the agency or theCompliance Agency shall process thecomplaint and submit to the Director thecase record and a summary report con-taining the following information:

(1) Name and address of the corn=plainant:

(ii) Brief summary of findings, in-cluding a' statement as to the agency'sconclusions regarding the contractor'scompliance az noncompliance with therequirements of the equal opportunityclause;

(111) A statement of the disposition ofthe case, including any corrective actiontaken and any sanctions or penalties im-posed or, whenever appropriate, therecommended corrective action andsanctions or penalties.

(2) A written report of every preawardcompliance review required by this reg-ulation or otherwise required by the Di-rector, including findings, will be for-warded to the Director within 10 daysafter the award for a postaward review.

(3) A written report of every, otheroompliance review or any other matterprocessed by the agency involving anapparent violation of the equal oppor-tunity clause shall be submitted to theDirector. Such report shall contain abrief summary of the findings, includinga statement of conclusions regarding theoontractor's compliance or noncompli-ance with the requirements of the order,and a statement of the disposition of thecase, including any corrective actiontaken or recommended and any sanc-tions or penalties imposed or recom-mended.§ 60-1.25 Assumption of jurisdiction by

or referrals to the Director.The Director may inquire into the sta-

tus of any matter pending before anagency or a Compliance Agency, includ-ing complaints and matters arising outof reports, reviews, and other investiga-tions. Where he considers it necessary orappropriate to the achievement of thepurposes of the order, he may assumejurisdiction over the matter and proceedas provided herein. Whenever the Direc-tor assumes jurisdiction over any mat-ter, or an agency refers any matter, hemay conduct, or have conducted, suchinvestigations, hold such hearings, make

FEDERAL REGISTER, VOL 33, NO. 104TUESDAY, MAY 260 1966

such findings, issue such recommenda-tion:: and directives, order such. sanc-tions and penalties, and take such otheraction as may be necessary or appro-priate to achieve the purposes of theorder. The Director shall promptly notifythe agency of any corrective action to betaken or any sanctions to be taken orany sanction to be imposed by theagency. The agency shall take such ac-tion, and report the results thereof tothe Director within the time specified.§ 60-1.26 Hearings.

(a) Informal hearings(1) Purpose.The Director or any agency head withthe approval of the Director may convenesuch informal hearings as may bedeemed appropriate for the purpose ofinquiring into the status of complianceby any prime contractor or subcontrac-tor with the terms of the equal opportu-nity clause.

(2) Notice. Contractors and subcon-tractors shall be advised in writing as tothe time and place of the informal hear-ing and may be directed to bring specificdocuments and records, or furnish otherrelevant information concerning theircompliance status. When so requested,the prime contractor or subcontractorshall .attend and bring requested docu-ments and records, or other requestedinformation.

(3) Conduct of hearings. The hearingshall be conducted by hearing officersappointed by the Director or an agencyhead. Parties to informal hearings maybe represented by counsel and shall havea fair opportunity to Present any rele-vant material. Formal rules of evidencewill not apply to such proceedings.

(b) Formal hearings(1) Generalprocedure. The Director or the agencyhead, with the approval of the Director,may convene formal hearings pursuantto Subpart B of this part. Such hearingsshall be conducted in accordance withprocedures prescribed by the Director orthe agency head. Reasonable notice of ahearing shall be sent by registered mail,return receipt requested, to the lastknown address of the prime contractoror subcontractor complained against.Such notice shall contain the time andplace of hearing; a statement of the pro-visions of the order and regulations pur-suant to which the hearing is to be held,and a concise statement of the matterspursuant to which the action furnishingthe basis of the hearing has been takenor is proposed to be taken. Copies of suchnotice shall be sent to all agencies. Hear-ings shall be held before a hearing officerdesignated by the Director or an agencyhead. Each party shall have the right tocounsel, a fair opportunity to presentevidence and argument and to cross-examine. Wherever a formal hearing isbased in whole or in part on matterssubject to the collective bargainingagreement and compliance may necessi-tate a revision of such agreement, anylabor organization which is a signatoryto the agreement shall haVe the right toparticipate as a party. Any other personor organization shall be permitted toParticipate upon a showing that such

- B8 -RULES AND REGULATIONS

person or organization has an interestin the proceedings and may contributematerially to the proper dispositionthereof. The hearing officer shall makehis proposed findings and conclusionsupon the basis of the record before him.

(2) C' cellation, termination, anddebarmf .tt. No order for cancellation ortermination of existing contracts or sub-contracts or for debarment from furthercontracts or subcontracts pursuant tosection 209 of the order shall be madewithout affording the time contractoror subcontractor an opportunity for ahearing. When cancellation, termina-tion, or debarment is proposed, the fol-lowing procedure shall be observed:

(i) Notice of proposed cancellation ortermination. Whenever the Director, orthe head of an agency or his designeeupon prior notification to the Director,proposes to cancel or terminate, or causeto be canceled or terminated, in wholeor in part, a contract or contracts or torequire cancellation or termination of asubcontract or subcontracts, a notice ofthe proposed action, in writing andsigned by the Director or head of theagency or his designee, shall be sent tothe at known address of the prime con-tractor or subcontractor, return receiptrequested. A copy of such notice shall besent to all agencies. The prime contractoror subcontractor shall be given at least10 days from the receipt of the noticeeither to comply with the provisions ofthe contract or subcontract, or to mail arequest for a hearing to the Director orthe agency.

(ii) Notice of proposed ineligibility.Whenever the Director, or the head ofan agency or his designee, upon priornotification to the Director, proposes todeclare a prime contractor or subm,tractor ineligible for further contror subcontracts under section 209 ofthe order, a notice of the proposed action,in writing and signed by the Directoror head of the agency or his designee,shall be sent to the last known addressof the prime contractor or subcontrac-tor, return receipt requested. A copy ofsuch notice shall be sent to all agencies.The prime contractor or subcontractorshall be given at least 10 days from thereceipt of such notice. in which to maila request for a hearing to the Director orthe aoncy.

(iii) ,Vuspensicm during pendency ofhearing. Whenever the prime contractoror subcontractor requests a hearing inaccordance with these provisions, hiscontracts or subcontracts may be sus-pended, in the discretion, of the Director,during the pendency of the hearing.

(iv) Hearing request. If at the end ofthe 10-day period referred to in subdi-vision (i) of this subparagraph, norequest has been received, the .Directoror the head of the agency may cancel,suspend or terminate or cause to becanceled, suspended or terminated suchcontracts or subcontracts. If at the endof 'the 10-day period referred to in sub-division (ii) of this subparagraph norequest has been received, the Directoror the .head of the agency may enteran order declaring the contractor or

subcontractor ineligible for further con-tracts, subcontracts, or extensions ofother modifications of existing contracts,until such contractor or subcontractorshall have satisfied the Director that hehas established and will carry out per-sonnel and employment policies andpractices in compliance with the pro-visions of the equal opportunity clause.

(v) Decision following hearing. Whenthe hearing is conducted by an agency,the hearing officer shall make recom-mendations to the head of the agencywhc shall make a decision. No decision bythe head of the agency, or his repre-sentatives, shall be final without theprior approval of the Director. When thehearing is conducted by a hearing officerappointed by the Director, the hearingofficer shall make recommendations tothe Director, who shall make the finaldecision. Parties shall be furnished withcopies of the hearing officer's recom-mendations, and sh?11 be given an op-portunity to submit their views.§ 60-1.27 Sanctions and penalties.

The sanctions described in subsections(1). (5), and (6) of section 209(a) of theorder may be exercised only by or withthe approval of the Director. Referral ofany matter arising under the order to theDePartment of Justice or to the EqualEmployment Opportunity Commissionshall be made by the Director.§ 60-1.28 Sbol.%; cause notices.

When the Director has reasonablecause to believe that a contractor hasviolated the equal opportunity clause hemay issue a notice requiring the con-tractor to show cause, within 30 days,why monitoring, enforcement proceed-ings or other appropriate action to ensurecompliance should not be instituted.§ 60-1.29 Preaward notices.

(a) Preaward compliance reviews.Upon the request of the Director, agenciesshall not enter, into contracts or approvethe entry into contracts or subcontractswith any bidder, prospective prime con-tractor, or proposed subcontractor namedby the Director until a preawa.rd com-pliance review has been conducted andthe Director or designated agency heador his designee has approved a determi-nation that the bidder, prospective primecontractor or proposed subcontractor willbe able to comply with the provisions ofthe equal opportunity clause,

(b) Other special preaward procedures.Upon the request of the Director, agen-cies shall not enter into contracts or ap-prove the entry into subcontracts withany bidder; .prospective prime contractoror proposed subcontractor specified bythe Director until the agency has com-plied with the directions contained inthe request.§ 60-1.30 Contract ineligibility list.

The Direct,or shall distribute periodi-cally a list tx.. all executive departmentsand agencies giving the names of primecontractors and suucontractors who havebeen declared ineligible under the regu-lations in this part and the order.

FEDERAL REGISTER, VOL. 33, 'NO. T04TUESDAY, MAY 28, 1968

§ 60-1.31 Reinstatement of ineligibleprime contractors and subcontractors.

Any prime contractor or subcontractordeclared ineligible' for further contractsor subcontracts under the order may re-quest reinstatement in a letter directedto the Director. In connection with thereinstatement proceedings, the primecontractor or subcontractor shall be re-quired to show that it has establishedand will carry out employment policiesand practices in compliance with theequal opportunity clause.60-1.32 Intimidation and interference.The sanctions and penalties contained

in Subpart D of the order may be exer-cised by the agency or the Directoragainst any prime contractor, subcon-tractor or applicant who fails to take allnecessary steps to ensure that no personintimidates, threatens, coerces, or dis-criminates against any individual for thepurpose of interfering with the filing of acomplaint, furnishing information, orassisting or participating in any mannerin an investigation, compliance review,hearing, or any other activity related tothe administration of the order or anyother Federal, State, or local laws re-quiring equal employment opportunity.

Subpart CAncillary Matters§ 60-1.40 Affirmative action compli.

ance programs.

(a) Requirements of programs. Eachagency or applicant shall require eachprime contractor who has 50 or moreemployees and a contract of $50,000 ormore and each prime 'contractor andsubcontractor shall require each subcon-tractor who has 50 or more employeesand a subcontract of $50,000 or more todevelop a written affirmative action com-pliance program for each of its estab-lishments. A necessary prerequisite tothe development of a satisfactory affirm-ative action program is the identifica-tion and analysis of problem areas in-herent in minority employment and anevaluation of opportunities for utiliza-tion of minority group personnel. Thecontractor's program shall provide in detail for specific steps to guarantee equalemployment opportunity keyed to theproblems and needs of members of mi-nority groups, including, when there aredeficiencies, the development of specificgoals and time tables for the promptachievement of full and equal employ-ment opportunity. Each contractor shallinclude in his affirmative aCtion compli-ance program a table of job classifies,tions. This table should include but neednot be limited to job titles, principalduties (and auxiliary duties, if any),rates of pay, and where more than onerate of pay applies (because 4.) f length oftime in the job or other factors) theapplicable rates. The affirmative actioncompliance program shall be signed byan executive official of the contractor.

(b) Utilization evaluation. The evalu-ation of utilization of minority grouppersonnel shall include the following:

(1) An analysis of minority grouprepresentation in all job categories.

No. 106Pt. II-2

- B9 -RULES AND REGULATIONS

(2) An analysis of hiring practices forthe past year, including recruitmentsources and testing, to determinewhether equal employment opportunityis being afforded in all job categories.

(3) An analysis of upgrading, transferand promotion for the past year to deter-mine whether equal employment oppor-tunity is being afforded.

(c) Maintenance of programs. Within120 days from the commencement of thecontract, each contractor shall maintaina copy of separate affirmative actioncompliance programs for each estab-lishment, including evaluations of utili-zation of minority group personnel andthe job classification tables, at each localoffice responsible for the personnel mat-.ters of such establishment. An affirma-tive action compliance program shall bepart of the manpower and trainingplans for. each new establishment andshall be developed and made availablePrior to the staffing of such establish-ment. A report of the results of suchprogram shall be compiled annually andthe program shall be updated at thattime. This information shall be madeavailable to representatives of theagency or Director upon request andthe contractor's affirmative action pro-gram and the result it produces shall beevaluated as part of compliance reviewactivities.§ 60-1.41 Solipitations or advertisements

for entployees.In solicitations or adVertisements for

employees placed by or on behalf of aprime contractor or, subcontractor, therequirements of paragraph (2) of theequal opportunity clause shall be satis-fied whenever the prime contractor orsubcontractor complies with any of thefollowing:

(a) States expressly in the solicitstions or advertising that all qualified ap-plicants will receive consideration foremployment without regard to z-ace,creed, color, or national origin;

(b) Uses display or other advertising,and the advertising includes an appro-priate insignia prescribed by the Direc-tor, The use of the insignia is considereds7u0b1j;ect to the provisions of 18 U.S.C.

(c) Uses a single advertisement, andthe advertisement is grouped with otheradvertisements under a caption whichclearly states that a]] employers in thegroup assure all qualified applicantsequal consideration for employmerawithout regard to race; creed, cOlor, ornational origin;

(d) Uses a single advertisement inwhich appears in clearly distinguishabletype the phrase "an equal opportunityemployer."§ 60-1.42 Notices to be posted.

(a) Unless alternative notices areprescribed by the Director or by theagency with the approval of the Director,the notices which prime contractors andsubcontractors are required to post byParagraphs (1), and (3) of the equal op-portunity clause will contain the follow-ing language and will be provided by thecontracting or administering agencies:

EQUAL EMPLOYMENT OPPORTUNITY IS THELAWDISCRIMINATION Is PROHIBITED BYTHE C/V11. RIGHTS ACT OF 1964 AND BYEXECUTIVE. ORDER NO. 11246

Title VII of the Civil Rights Act of 1964Administered by:THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Prohibits discrimination because of Race,Color, Religion, Sex, or National Origin byEmployers with 75 or more employees, byLabor Organizations with a hiring hall of 75or more members, by Employment Agencies,and by Joint Labor-Management Commit-tees for Apprenticeship or 'Training. AfterJuly. 1, 1967, employers and labor organiza-tions with 5P or more employees or memberswill be coveted; after July 1, 1968, those with25 or more will be covered.

ANY PERSON

Who believes he or she hasbeen discriminated against

SHOULD CONTACT

THE EQUAL,EMPLOYMENT OPPORTUNITYCOMMISSION

ISOO a Street NW,Washington, D.C. 20506

Executive Order No. 11246Administered by:THE OFFICE or FEDERAL CONTRACT COMPLIANCE

Prohibits discrimination because of Race,Color, Creed, or National Origin, and requiresaffirmative action to ensure equality ofopportunity in all aspects of employment.

Ely all Federal Government Contractorsand Subcontractors. and by Contractors Per-forming Work Under a Federally AssistedConstruction Contract, regardless of thenumber of employees in either case.

ANY PERSON

Who believes he or she hasbeen discriminated against

S110TILD CONTACT

THE OFFICE OPREDERAL CONTRACT COMPLIANCE

u.s.epartment of LaborWashington, D.C. 20210

(b) The requirements of paragraph(3) of the equal opportunity clause willbe satisfied atienever the prime contrac-tor or subcortractor posts copies of thenotification prescribed by or pursuant toparagraph la)> of this section in con-spicuous places available to employees,applicants for r-employment and repre-sentatives or earn labor union or otherorganization representing his employeeswith which helms a collective bargain-ing agreement or other contract orunderstanding.§ 60-1.43 Access to records of employ-

ment.Each prime contractor and subcon-

tractor shall permit access during normalbusiness hours Whiz books, records, andaccounts pertinent to compliance withthe order;. -and all rules and regulationspromulgated pursuant thereto, by theagency, or:91e Director for purposes ofinvestigation to ascertain compliancewith the equal opportunity clause of thecontract or subcontract. Information ob-tained in this manner shall be used onlyin connection with the administration ofthe order, the adminLttration of the Civil

FEDERAL REGISTER, VOL 33, NO. 104TUESDAY, MAY 28, 1968

- IUDRULES: AND REMULATIONS

Rights Act of 1964, and in furtherer .1Las if they were complaints regard-of the.-purposes of the order and that 2141.. '= Violations of this order.§ 60-1.44 Rulings and interpretations..

Rulings under or interpretations oftheorder or the regulations contained in thispart shall be made by the Secretary orhis designee.§ 60-1.45 Existing contracts and subcon-

tracts.All contracts and subcontracts in effect

prior to October 24, 1965, which are notsubsequently modified shall be admin-istered in accordance with the nondis-crimination provisions of any, prior ap-plicable Executive orders. Any contractor subcontract modified on or after Octo-ber 24, 1965, shall be subject to ExecutiveOrder 11246. Complaints received by andviolations coming to* the attention ofagencies regarding contracts and sub-,contracts which were subject to Execu-tive Orders 10925 and 11114 shall be proc-

A64)=1.46 Delegation-ofzauthority by the-Director.

'The Director is authorized to redele-gate the authority given-to him by theregulations in this part. The authorityredelegsted by the Director pursuant tothe regulations in this pert shall be ex-ercised under his general direction andcontrol.§ 60-1.47 Effective date.

The regulations contained in this partshall,become effective July 1, 1968, for allcontracts, the solicitations, invitationsfor bids, or requests for proposals whichwere sent by the Government or an appli-cant on or after said effective date, andfor all negotiated contracts which havenot been executed as of amid effectivedate. Notwithstanding the foregoing, theregulations in this part shall become ef-fective as to all contracts executed on and

later the 120th day following said effec-tive date. Subject to any priorapproval ofthe Secretary; any agency may defer theeffective date of the regulations in thispart, for such-period of timeas the Sec-retary finds: tohe reasonably necessary.Contracts executed prior to the effectivedate of the regulations in this Dart shallbe governed by the regulations promul-gated by the former President's Commit-tee: on Equal Employment Opportunitywhich appear at 28 F.R. 9812. September2, 1963, and at 28 P.R. 11305. October 23,1963, the temporary regulations whichappear at 30 P.R. 13441, October 22, 1965,fixtd the orders at 31 P.R. 6881. May IO,1966, and 32 P.R. 7439, May 19, 1967.

Signed at Washington, D.C., this 21stday of May 1968.

WILLARD WIRTZ,Secretary of Labor.

IF.R. Doc. 88-8298: Filed, May 27, 1988:8!45 a.m.]

FEDERAL REGISTER, VOL 33, NO. 104TUESDAY, MAY 28, 1968

- B1 1

AMENDMENT

Tiz,-.1 orn1iLi;!u 1 U.:.;L:0/13M

i.1!):11)Lr,i( "111 .77';:7

Chapter 60 O rice :Foeoral Coa-traCt Compliance; Esual Employ-rrient Opportunity, Department ofLabor.

PART 60-1-0aLIGAT:ONS O CON-TRACTORS AND SUBCON77:ACTO:15

Miscellaneous -Arr,enermentsPursuant to Executive Order 11246 (30

F.R. . 12319), as amended by ExecutiveOrder 11375 (32 14303). 41 CI?R.Part 60-1, as revised on 'May 28, 19G8(33 P.R. 7304), is hereby amended. in themanner set forth below.

As these amendments concern mattersrelating to Public contracts, neither no-tice of proposed rule-making; nor publicparticipation therein, nor. delay in theireffective date is required by 5 U.S.C. 553.Accordingly, good cause is hereby foundto dispense with notice of proposed rule-making, public partiCipation, and delayin effective date.. Therefore, theseamendments shall. become effectiveim-media tely.§ 60 -1.1 [lleVised]

In § 60-1.1. the phrase "without regardto race, Creed, color, or national origin",wherever it appears, is revised to read"without regard to race, color, religion,sex, or national origin."§ 60-1.4 [Revised]

In § 607-1.4 (a) and (b), the phrase"without regard to race, creed, color, ornational origin", wherever it appears, isrevised to read "without regard to race,color, religion, sex, or national_ origin."§ 60 -1.8 [Revised]

In § 60-1.8(a) , the phrase "on the basisof race, creed, color, or national origin",wherever it appears, is revised to read"on the basis of race, color, religion, ornational origin."

§ 60-1.20 [Revised]In. § 60-1.20 (a) , the phrase "without

regard to race, creed, color, or nationalorigin", wherever it appears, is revisedto read "without regard to race, color,religion, sex, or national origin."§ 60-1.41 [Revised]

In § 60-1.41 (a) and (c), the phrase"without regard to race; creed, color, ornatio:lal origin", wherever it appears, isrevised to read "without regard to race,.color, religion, sex; or national origin."

Ei 60-1.-12 [r.evls.:41]In § GO-1.42(a), Pie phrase "because. of

Ram Color, Crccd, or National Origin"is reviz-cd to rend "because of RaCe, Color,

Sex, or National Origin."Section 60 -1.3 is hereby amended..by

adding thereto a new paragraph. (z) toread as follows:

60-1.3 Definiiimis.*

(z) The term "minority group" asused hcrein shall include,..wherc appro..priate. i.ernale employees-1:nd prospectivef erno.le-cniploy ces.

In . §-i'60-1.7. paragraph (a) (3) ishereby rovised to read .. as follows:§ 60-1.7 lleports and witer'requirei1 in-.

forina it)]-(a)- '(3) 'Me Director,... agency oc.. the

applican: on their owa...inotions, 11147-re-quire a. con tractor to :;:cep employment orother records and to furniSil,..in Miele=requested, within reasonable.limits, suchinformation. as the Director, agency, orthe applicant deems .necessary for . theadministration of the order.

.

(MO. 11246, PI 12319; E.O. 11375, 321,..13,.14303)

Signdd:at Washington, D.C., this...14thday of January 1969.

WILLAaa WIRTZ.;Sa,,Ztary of.Mdbon-

60-604: 7E214 ..Jan..'1.93; '1069;8:50 nan;j:

FEDERAL REGISTER, VOL.. 34, NO, 12FRIDAY, JANUARY 17, 1969

- B12 -AMENDMENT

'1 e rinr.1 ."DIY EL::2LE::

Choptcr 60Once of:Federal. Con-tract Cornior.co, Ec.ual Employ-ment 07,portunity, Department ofLabor

.

PART -60-1-0.-N..ioNs OF CON-TDACYORS AND StMCCNTACTO:RS..

MisccEcsncous AmendmentsPursuant to Executiverder 11246.(30

P.R. :12310), as amended by ExecutiveOrder 113'15" (32 P.R. , 14303), 41 :CPRPart 6O-1, as revised on May 28, 1068 (33P.R. 7304),: is hereby amended in themanner 'set forth below.

As these amendments. concern 'mattersrelating to public contracts, neithernotice of propoeci.rule-ma7tint.,,, nor Pub.-lic participation therein, nor delaytheir effective-date-is required bySILSO;..553.1 do not believe such proceduresAverniserve a useful. purpose:here. AccordingIrthese amendments shall. become effectiveimmediately.' .. .

Part 66.4- of Chapter.'60 Title.41:cofthe Code of Federal:" Regulations -11hereby amended as follows:'

.

.amended by revokingparagraph: (d). As . amended,' §reads as follows::§ 60-1.6 Duties of agencies.

(d) (Revoked)0

2. In § GO-1.7 paragraph (b) (1) Isrevised to read as follows:§60-1.'Z Reports And (Alter required

information.r *

(b) Requirements for .bidders or pro;spec-tire contractors(1) Certification ofcompliance with Part 60-2: Amm:aye

.Action Programs. Each. agency snatiiaze-quire each bidder or:prospective primecontractor and proposed subcontractor,where appropriate,,to state in the bid:orin' writing at the outset of negotiationsfor the contract: (0 Whether it hasdeveloped and has on file at each estab-lishment affirmative action programspursuant to Part G0-:2 of this chapter;

whether it has participated in anyprevious contract or subcontract sub-ject to the equal opportunity clause:

'dui) whether it has filed with the Joint'Reporting Committee; the 'Director, anagency, or the Equal Employment Op-portunity Commission all reports dueunder the applicable filing requirements,

. a

3....fn § GO-1:20. -paragraplt.Ad) is re-vised ito read :asrfollows:§ 60-1.20 Coinpliancc reviews-.

(d) Each age;. halI include in theinvitation for b. for each formallya.dvertiscd nonconsLeuction contract orstate at the outset of negotiations foreach negotiated contraet, Itiat if theaward, when let, should =cecd the'amount of $1. million or more, theprospective contractor and 'his knownfirst-tier subcontractors: with subcon-tracts of G1 million or'rmare with l be sub-Jcct to a compliance revIew liefore theaward of the contract. No.sUch contractshall be awarded unless a, ::preawardcompliance review of the :prospectivecontractor and his known .fit-tier $1million subcontractors )has:Iteen con-ducted by the compliance agency within12 mOnths prior to the award. If anagerincyother than the awarding agencyis. thecpwbance.agency, theaawardingagencywill notify the compliance agencyand request appropriate actiatnand find-ing's:4n;accordanee with thisCompliance agencies will provide award-ing agencies with written. :reports ofcompliance within 30 days Blowing therequest. In order to faadhe awardof acentract,axon tractonzadisueh first-tier subcontramtmrs nuistlifOund to bein- compliance pursuant paragraph(b) of:this section, and xvitia:.Prrt 60-2of these regulations.(E.0.. 11246, 30' PLR. 12319; ,;E:O. 11375, 32P.R..14303)

Signed at Washington, D.C., this 16thday of June 1910..

GEORGE P. SmiLTZ,Secretary of Labor.

P.E. Doc. 70-8344; Piled, June 30, 1970;8:47 A.m.)

FEDERAL REGISTER, VOL.. 35, NO. 127WEDNESDAY, JULY 1, 1970

r;P 0 9 Xi./12

TAB C

- C1 -

U.S. DEPARTMENT OF LABOROFFICE OF FEDERAL CONTRACT ':::.QMPL.IANCE

WASHINGTON, D.C. 20210

CHAPTER 60 Office of Federal Contract Compliance,Equal Employment Opportunity_ Department of Labor

fkreprini from FEDERAL REGISTER, VOL. 36, NO. 234SA7umAY, DECEMBER 4, 1971

TR 41 PUBLIC CONTRACTS

AND PROPERTY MANAGEMENT

Chapter 60Office of Federal Can-'tract Compliance, Equal Employ--arment Opportunity, Department of

F,fnliff-60-2AFFIRMATIVE ACTIONPROGRAMS

tbritAugust 31, MI, notice of proposed.rule- making wastcpublished in the FED-riam.,,REGISTER (36 .F.R. 17444) with re-i,"...a.dt.to amending, Chapter 60 of Title 41a Code of'Pederall :Regulations byaddittagza neva Tart 60-2, dealing with

alifia-,-,-rative action programs. Interestedpeaaauhtrwere given 30 days in which to.subinitvwritten comments, suggestions,or ,ObJections regarding the proposed,amendments.

..Elavirag- considered all relevant mate-riaLsuhrnitted, I have decided to, and doherebyaamend Chapter 60 of Title 41 ofthe.Code:of Federal Regulations by add-ing.a new Part 670-2, reading as follows:

Subpart AGeneralSec60:.:221 e. purpose and-scope.:.613-:22 Agency Action.

:SubpasstEllequired Contents ct AffirmativeAction Programs

,k50-2:i.G,,lettrpose of affirmative action pro-gram.

Mequired utilization analysis.60-'1'.12.LIEstablIshrneltt of goals and time-

tables.60,Z1.= Additional required ingredients of

aflirmative action programs.60=:12.7.A. Compliance status,

SSUbpart CMethods of Implementing theRequirements of Subpart ft

60 2.20' Development or reaffirmation of theequal employment opportunitypolicy.

60 -2.2.1 Dissemination of the policy.60-2.22 Responsibility for implementation.60-2.23 Identification of problem areas by

organization unit and Job classi-fication.:

60-2.24 Development and execution of pro-grams,

60-2.25 Internal audit and reporting sys-tems.

60-2.26 Support of action programs.Subpart DMiscellaneous

GO-2.30 Use of goals,60-2.31 Preemption.60-2.32 Supersedure.

AUTHORITY: The' provisions of this Part60-2 issued pursuant to sec. 201, ExecutiveOrder,11246 (30 P.R. 12319).

Subpart A--General§ 60-2.1 Title, purpose and scope.

This part shall also be known..as "Re-vised Order No. 4." and shallcovermon-construction contractors.:Seetiorn60-1.40of this Chapter. Affirrnative.Action.Com-pliance Programs, requires that within120 days from the commencement of acontract each prime contractor or sub-contractor- with 50 or more /employeesand a contract. of $50,000.art-nlaare de-velop a :written affirmative 'azettan, com-pliance prso,gram forteach of itslearablish-ments, and such -contractors .amse nowfurther required to reviseKezetstbnatvvrit-ten affirmative action-prxigtrams 'to in-clude the changes embodiethinstliimorderwithin 120 days of itstpublicationitin theFEDERAL. REGISTER. A -review,of agencycompliance surveys indicates:that...manycontractors do not have affirmative ac-tion programs on file at the time anestablishment Is visited by a complianceinvestigator. This part detailstheagencyreview procedure and the restilts of, acontractor's failure to develop and main-tain an affirmative action program andthen set forth detailed guidelines, to beused Dy contractors and Governmentagencies in developing and judging theseprograms as well as the goodtfaith effortrequired to transform the programs frompaper commitments to equal -employ-ment opportunity. Subparts-Band C areconcerned with affirmativeraction plansonly.

Relief l'Qr members of .an: "..affectedclass" who, by virtue of past discrimina-tion, continue to suffer the present effectsof that discrimination must. either beincluded in the contractor's . affirmativeaction program or be 'embodied in a sepa-rate written "corrective action" pro-gram, An "affected class" problem mustbe remedied in order for a contractor tobe considered in compliance. Section 60-2.2 herein pertaining to an acceptableaffirmative action program is also appli-cable to the failure to remedy discrimi-nation against members of an "affectedclass."§ 60-2.2 Agency action.

(a) Any contractor required by ,s;

1.40 of this chapter to develop an affirm-ative action program at each of hisestablishments who has not compliedfully with that section is not in compli-ance with Executive Order 11246, asamended (30 P.R. 12319). Until suchprograms are developed and found to beacceptable in accordance with the stand-ards and guidelines set forth in §§ 60-2.10 through 60-2.32. the contractor isunable to comply with the equal employ-ment opportunity clause.

(b) If, in deterrni:ntaa-.. 1, coil!responsibility for an .:.17S17,.. fit comes to the cont=a:atira o.rt,(ttention, through sr- =:-agency or through tr,- ,)ffa-^ of

Contract Compliance othm. ti

silent agencies, that cottir,o/not developed an arr!,nrabli:action program-at t,o,,111silents, the cr.:.:atra.h,::::.c:City the Dire.:taior 1,1

canthat the contratttt '1his equal, erat)10y rittelltless, upon Treview.. It I, tcrtrl Ue bythe Director that substantiallaw or fact exist as to the on1e7-il,st.1..s.responsibility to the-extent that el- irat,;ti--lag Is.. In his sole judgment, re ,qedprior to a determination tltztttractor isnorirespoh!.;inie:during any pre-a. con) ez-erkel i),ktrYeffort shall be made thrcateh thedeases ofsuasiontive action prri.r_e-7-,

through :- t!a.11:";jt.),:l'''.:.:111!)-

ance of his cohgto ca' isable to-meet his .arapIoyale: eM)-ligatiOns In. accov.c-tana-.a ',call 010opportunity .claura-r.trad.: a Pp: IC a,b]...dregulations, and. Providg'ijczr-ther That when.:the.-eantractor,al 4 Z 15declared nonresporsiffie more %Or' 0h0for inability to cenaply with th6 II filialemployment opportunity clause y 4,ticcsetting a timely hearing (-14te,,,I;111be. issued concurrently with thenonresponsibility .determulatio4 410, k1C-cordance with the provisions of § "proposing to declare such coai,ts tiakt or-bidder ineligible for future contrev '41dsubcontracts.

(c) Immediately up(:: -: 1:111,,t.contractor has no affirmative-actiffiel'oagram or that his program -15 not 0, "ht..able to contracting oMecca'r thecompliance agency representative ed.t.herepresentative of the Office Of.Contract Compliance, WIIICII-N,97 6,.,,!lasmade such a finding, shall notify 0-tlaisof the appropriate compliance Ocrsllayand the Office of Federal ContrO%iiti.q)cipliarice of such fact. The coalc,;-.,,11eeagency

givingnig ishsiimi e

30solar-)

tolos

re'illttsri;

why enforcement proceedings ttud40c.-tion 209(b) of Executive Order , asamended, should not be Instituted, 41

(I) If the -contractor fails wgood cause for his failure. oredy that failure by developing a(f:ife.tb..plernenting an acceptable affirinatfr %1\e.Lion program within 30 days. %ex 1)(1-pliance agency, upon the approval the

Director, shall immediately issue a noticeof Proposed cancellation or terminationof existing contracts or subcontracts anddebarment from futurc contracts andsubcontracts pursuant to § 60-1,26(b),giving the contractor 10 days to requesta hearing, If a request for hearing hasnot been received within 10 days fromsuch notice, such contractor will be de-clared ineligible for future contracts andcurrent contracts will be terminated fordefault.

(2) During the "show cause" period of30 days every effort shall be made by thecompliance agency through emu:illation,mediation, and persuasion to resolve thedeficiencies which led to the determina-tion of nonresponsitality. If satisfactorYadjustments designed to bring the con-tractor into compliance are nut con-cluded, the compliance agency, with theprior approval of the Director, shallproaiptly commence formal procerdaigsleading to the cancellation or termina-tion of eaisting contracts or subcontractsand debarment from future contractsand subcontracts under § 60-1.26an ofthis chapter.

(d) During the "show cause" periodand formal proceedings, each contract-ing agency must continue to determinethe contractor's responsibility in consid-ering wheth7r or not to award a new oradditional contract,Subpart B-- Required Contents of

Affirmaiive Action Programs§ 60-2.10 Purpose of affirmative action

program.An affirmative action program is a set

of specific and result-oriented proceduresto which a contractor commits himself toapply every good faith effort. The objec-tive of those procedures plus such effortsis equal employment opportunity. Proce-dures Without effort to make them workare meaningless; and effort, undirectedby specific and meaningful procedures,is inadequate. An acceptable affirmativeaction Program must include an analysisof areas within which the contractor Isdeficient in the utilization of minoritygroups and women, and further, goalsand timetables to which the contractor'sgood faith efforts must be directed to cor-rect the deficiencies and, thus to increasematerially the utilization of minoritiesand women, at all levels and in all seg-runts of his work force where deficien-cies exist.§ 60-4.11 acquired utilization analysis.

Based upon the Government's experi-ence with compliance reviews under theExecutive- order programs and the contrat tor reporting system, minoritygroups are most likely to be underuti-Hied in departments and Jobs within de-partments that fall within the followingEmployer's Information Report (EEO-1) designations: officials and managers,Professionals, technicians, sales work-ers, office and clerical and craftsmen(skilled). As categorized by the EEO-1designations, women are likely to beunderutilized in departments and jobswithin departments as follows: officials

- C2 -

and managers., professionals, techni-cians. sales workers (except over-the-counter salesdra certain retail establish-ments) , craluanien (skilled and semi-skilled). Thanaffore, the contractor shalldirect specialaattention to such jobs inhis analysis and goal.setting for minori-ties and women, Affirmative action pro-grama must contain the following lamamation:

(a) An analysis of all major job classi-fications at the facility, with explana-tion if minorities or women are currentlybeing underutilized in any one or morejob classifications (job "classification":herein ineaninamne or a group of jobshating similaracontent, wage rates rindopportunities', --Underutilization" is de-fined as having fewer minorities orwainen in a particular job classificationthan wor:ld reasonably be expected bytheir availability. In malting the: workforce analysis, the contractor shall con-duct such analysis separately for minor:-ties and women.

(1) In determining whether minoritiesare being underutilized in any job ela.s-sificationthe contractor will consider atleast all ofIthe following factors:

(i) The minority population of thelabor area surrounding tat facility;

(ii) The size of the minority unem-ployment force in the labor area sur-rounding the facility;

(iii) The percentage of the minoritywork force as compared with the totalwork force in the immediate labor area;

(iv) The general availability of minor-ities having requisite skills in the im-mediate labor area;

(v) The availability of minoritieshaving requisite skills in an area inwhich the contractor can reasonablyrecruit;

(vi) The availability of.and transferable minoritiescontractor's organization;

(vii) The existence of 'training insti-tutions capable of training persons in therequisite skills; and

(viii) The degree of training which thecontractor is reasonably able in under-take as a means ofanaking all ,5ola classesavailable to minorities.

(2) In determining whetner women arebeing underutilized in any Job classifica-tion, the contractor -will consider at leastall of the folloWing factors:

Promotablewithin the

(I) The size of the female unemploy-mist faint in the labor area surroundingthe facilalar;

(ii) 'The percentage of the femaleworkforce as compared with the totalworkforce in thedxmnediate labor area:

(Hi) The general99 availability of wo-men having requisite skills in the im-mediate labor area;

(iv) The availabilivy of women havingrequisite skills in an area in which thecontractor can reasonably recruit;

( v) The availability of women seekingemployment in the labor or recruitmentarea of the contractor;

(vi) The availability of promotableand transferable female employees with-in the contractor's organization;

(vii) The existence of training institu-tions capable of training persons in therequisite skills; and

(viii) The degree of training whichthe contractor is reasonably able to un-dertake as a means of making all jobclasses available to women. .§ 60-2.12 Establitannent of goal,. and

(a) The goals and timetables deveL-oped by the contractor should be attains--able in terms of the contractor's analysisof his deficiencies and his entire affirma-tive action program. Thus, in estahlisliing.the size of his goals and Use length-ofthistimetables, the contractor should: con-sider the results which could reasonablybe expected from his putting forth everygood faith effort to make his -overaliaaffirmative 'action program work.' Inade-termining levels of goals, the contractorshould consider at least the factors listedin § 60-2.11.

(b) Involve personnel relations staff:.department and division heads, andiocall.and unit managers in the goal settingprocess.

(e) Goals should be significant, meas-urable and attainable.

(d) Goals should be specific forplanned results, with timetables for:completion.

(e) Goals may not be rigid and inflex-ible quotas which must be met, but mustbe targets reasonably attainable bymeans of applying every good faith.ef-fort to make all aspects of the entireaffirmative action program work,

( f ) In establishing timetables to meetgoals and commitments, the contractorwill consider the anticipated expansion,contraction and turnover of and in thework force.

(g) Goals, timetables and affirmative.action commitments must be designedto correct any identifiable deficiencies.

(h ) Where deficiencies exist andwhere numbers or Percentages are rele-vant in developing corrective action, thecontractor shall establish and set forthspecific goals and timetables separatelyfor minorities and women.

(I) Such goals and timetables, withsupporting data and the analysis thereofshall be a part of the contractor's writtenaffirmative action program and shall bemaintained at each establishment of thecontractor.

(j) Where the contractor has notestablished a goal, his written affirms,-tare action program must specificallyanalyze each of the factors listed in.60-2.11 and must detail his reason for alack of a goal.

(k) In the event it comes to the atten-tion of the compliance agency or theOffice of Federal Contract Compliancethat there is a substantial disparity inthe utilization of a particular minoritygroup or men or, women of a particularminority group, the compliance agencyor OFCC may require separate goals andtimetables for such minority group andmay further require, where appropriate,such goals and timetables by sex for suchgroup for such job classifications andorganizational units specified by thecompliance agency or OPCC.

ti Support data for the required anal-ysis and program shall be compiled andmaintained as part of the contractor'saffirmative action program. This datawill include but not be limited to progres-sion line charts, seniority rosters, appli-cant flow data, and applicant rejectionratios indicating minority and sex status.

(m) Copies of affirmative action pro-grams and/or copies of support datashall be made available to the complianceagency or the Office .of Federal ContractCompliance, at the.request of either, forsuch purposes as may be appropriate tothe fulfillment of their responsibilitiesunder Executive Order 11256, asamended.§ 60-2.13 Additional required ingredi-

ents of affirmative action programs.Effective affirmative action programs

shall contain, but not necessarily be lim-ited to, the following ingredients:

(al Development or reaffirmation ofthe contractor's equal employment op-portunity policy in all personnel actions.

(b) Formal internal and external dis-semination of the contractor's policy.

(c) Establishment of responsibilitiesfor implementation of the contractor'saffirmative action program.

(d) Identification of problem areas(deficiencies) by organizational unitsand job classification.

(e) Establishment of goals and objec-tives by organizntional units and jobclassification, including timetables forcompletion.

(f) Development and execution of ac-tion oriented programs designed to elim-inate problems and further designed toattain established goals and objectives.

(g) Design and implementation of in-ternal audit and reporting systems tomeasure effectiveness of the total pro-gram.

(h ) Compliance or personnel pciliciesand practices with the Sex Discrimina-tion Guidelines (41 CFR Part 60-20).

(1) Aztive support of local and na-tional community action programs andcommunity service programs, designedto improve the employment opportunitiesof minorities and women.

(j) Consideration of minorities andwomen not currently in the workforcehaving requisite skills who can be re-cruited through affirmative actionmeasures.

§ 60-2.14. Compliance'status.No contractor's compliance status shall

be 'judged alone by whether . or not hereaches his goals and meets his time-tables,

.

Rather, each contractor's compli-ance posture shall be reviewed. and 'de-termined by reviewing the contents of hisprogram; the extent of his adherence to .

this program, and his good .faith effortsto make his program work toward, therealization of the' program's goals withinthe timetables set for completion.' Therefollows an outline of examples of pro-cedures that contractors-. and Federalagencies should use as a guldeline forestablishing,' implementing, and judgingan acceptable affirmative action program.

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Subpart CMethods of Implement-ing the Requirements of Subpart B

§ 60-2.20 Development or reaffirma-tion of the equal employment oppor-tunity policy.

(a) The contractor's policy statementshould indicate the chief executive offi-cers' attitude on the subject matter, as-sign overall responsibility and provide fora reporting and rr.Onitoring procedure.Specific items to Iv mentioned shouldinclude, but not limited to:

(1) Recruit, hire, train, and promotepersons in all job classifications, withoutregard to race, color, religion, sex, ornational origin, except where sex Is abona fide occupational qualification.(The term "bona fide occupational quali-fication" has been construed very nar-rowly under the Civil Rights Act of 1964.Under Executive Order 11246 as amendedand this part, this term will be construedin the same manner.)

('2) Base decisions on employment soas to further the principle of equal em-ployment opportunity.

(3) Insure that promotion decisionsare in accord with principles of equalemployment oppoitunity by Imposingonly valid requIrerieents for promotionalopportunities.

(4) Insure that all personnel actionssuch as compensation, benefits, transfers,layoffs, return from layoff, companysponsored training, educatior4 tuition as-sistance, social and recreation programs,will be administered without regard torace, color, religion, sex, or nationalorigin.§ 60-2,21 Dissemination of the policy.

(s) The contractor should disseminatehis policy internally as follows:

(1) Include it in contractor's policymanual.

(2) Publicize it In company newspaper,magazine, annual report and other media.

(3) Conduct special meetings With ex-ecutive, management, and supervisorypersonnel to explain intent of policy andindividual responsibility for effective Im-plementation, making clear the chief ex-ecutive officer's attitude.

(4) Schedule special meetings with allother employees to discuss policy and ex-plain individual employee responsibilities.

(5) Discuss the policy thoroughly inboth employee orientation and manage-ment training programs.

(8) Meet with union ofdcials to informthem of policy, and request theircuoperation.

(7) Include nondiscriralnation clausesIn all union agreements, and review allcontractual provisions to ensure they arenondiscriminatory.

(8) Publish articles covering EEO pro-grams. progress reports, promotions,etc., of minority and female employees,in company publications,

(9) Post the policy on company bul-letin boards.

(10) When employees are featured inproduct or consumer advertising, em-ployee handbooks or similar publicationsboth minority and nonminority, menand women should be pictured.

(11) Communicate to employees theexistence of the contractors affirmativeaction program and make available suchelements of his program as will enablesuch employees to know of and availthemselves of its benefits.

(b) The contractor should dissemi-nate his policy externally as follows:

(1) Inform all recruiting sources ver-bally and in writing of company policy,stipulating that these sources activelyrecruit and refer minorities and womenfor all positions listed.

(2) incorporate the Equal Opportu-nity.clause in all purchase orders, leases,contracts, etc., covered by ExecutiveOrder 11246, as amended, and Its im-plementing regulatiors.

(3) Notify minority and women's or-ganizations, community agencies, com-munity leaders, secondary schools andcolleges, of company policy, preferablyIn writing.

(4) Communicate to prospective em-ployees the existence of the contractor'saffirmative action program and, makeavailable such elements of his programas will enable such prospective employeesto know of and avail themselves of itsbenefits.

(5) When employees are pictured inconsumer or help wanted advertising,both minorities and nontninority menand women should be shown.

(6) Send written notification of com-pany policy to all subcontractors, ven-dors and suppliers requesting appropri-ate action on their part.§ 60-2,22 Responsibility for implemen-

tation.(a) An executive of the contractor

should be appointed as director or man-ager of company Equal Opportunity Pro-grams. Depending upon the size andgeographical alignment of the company,this may be his or her sole responsibility.He or she shbuld be given the necessarytop management support and staffing toexecute the assignment. His or heridentity should appear on all internalmid external communications on thecompany's Equal Opportunity Programs.His or her responsibilities should include,but not necessarily be limited to:

(1) Developing policy statements, af-firmative action programs, internal andexternal communication techniques.

(2) Assisting In the identification ofproblem areas.

(3) Assisting line management in ar-riving at solutions to problems.

(4) Designing and implementingaudit and reporting systems that will:

(1) Measure effectiveness of the con-tractor's programs.

(U) Indicate need for remedial action.(111) Determine the degree to which the

contractor's goals and objectives havebeen attained.

(5) Serve as liaison between the con-tractor and enforcement agencies.

(5) Serve as liaison between the, con-tractor and minority organizations, worn-en's organizations and community actiongroups concerned with employment op-portunities of minorities and women.

(7) Keep management informed oflatest developments in the entire equalopportunity area,

(b) Line responsibilities should include,but not be limited to, the following:

(1) Assistance in the identification ofproblem areas and establishment of localand unit goals and objectives.

(2) Active involvement with localMinority organizations, women's organi-zations, community action groups andcommunity service programs.

(3) Periodic audit of training pro-grams. hiring and promotion patterns toremove impediments to the attainment ofgoals and objectives.

. (4) Regular discussions with localmanagers, supervisors and employees tobe certain the contractor's policies arebeing followed.

(5) Review of the qualifications of allemployees to insure that minorities andwomen are given full opporttoities fortransfers and promotions.

(6) Career counseling for all em-ployees.

(7) Periodic audit to insure that eachlocation is in compliance in area such as:

(ii Posters are properly displayed.(ii) All facilities, including company

housing, which the contractor maintainsfor the use and benefit of his employees,are in fact desegregated, both in policyand use. If the contractor provides fa-cilities such as dormitories, locker roomsand rest rooms, they must be comparablefor both sexes.

(iii) Minority and female employeesare afforded a full opportunity and areencouraged to participate in all companysponsored educational, training, recrea-tional and social activities.

(8) Supervisors should be made tounderstand that their work performanceis being evaluated on the basis of theirequal employment opportunity effortsand results, as well as other criteria.

(9) It shall be a responsibility ofsupervisors to take actions to preventharassment of employees placed throughaffirmative action efforts,§ 60-2.23 Identification of problem

areas by organizational units and jobclassifications.

(a)' An in-depth analysis of the fol-lowing should be made, paying particularattention to trainees and those categorieslisted in § 60-2.11(d).

(1) Composition of the work force byminority group status and sex.

(2) Composition of applicant flow byminority group status and sex.

(3) The total selection process includ-ing position descriptions, Position titles,worker specifications, application forms,interview procedures, test administration,test validity, referral procedures,. finalselection process, and similar factors.

(4) Transfer and promotion practices.(5) Facilities, company sponsored rec-

reation and social events, and specialprograms such as educational assistance.

(6) Seniority practices and seniorityprovisions of union contracts.

(7) ApPrenticeship programs.(8) All company training programs,

formal and informal.(9) Work, force attitude.

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(10) Technical phases of compliance,such as poster and notification to laborunions,' retention of applications, noti-fication to subcontractors, etc.

(b) If any of the following items arefound in the analysis, special correctiveaction should be appropriate.

(1) An "underutilizatio,0" of minor-ities or women in specific work classi-fications:

(2)' Lateral and/or vertical movementof minority or female employees occur-ring at a lesser rate (compared to workforce mix) than that of nonminority ormale employees.

(3) The selection process eliminatesa significantly higher percentage of mi-norities or women than rionminoritiesor men.

(4) Application and related preem-ployment forms not in compliance withFederal legislation.

(5) Position descriptions inaccuratein relation to actual functions and du-ties.

(6) Tests and other selection tech-niques not validated as required by theOFCC. Order on Employee Testing andother Selection Procedures.

(7) Test forms not validated by loca-tion, work performance and inclusion ofminorities and women in sample.

(8) Referral ratio of minorities orwomen to the hiring supervisor or man-ager indicates a significantly higher per-centage are being rejected as comparedto nonminority and. male applicants.

(9) Minorities or women are excludedfrom or are not participating in companysponsored activities or programs.

(10) De facto segregation still existsat some facilities,

(11) Seniority provisions contribute toovert or inadvertent discrimination, i.e..a disparity by minority group status orsex exists between length of service andtypes of job held.

(12) Nonsupport of company policy bymanagers, supervisors or employees.

(13) Minorities, or women underuti-lized or significantly underrepresented intraining or career . improvement pro-grams.

(14) No formal techniques establishedfor evaluating effectiveness 'of EEOprograms.

(15) Lack 'of access to suitable hous-ing inhibits recruitment efforts and em-ployment of qualified minorities,

(16) Lack of suitable transportation(public or private) to the work place in-hibits minority employment.

(17) Labor unions and subcontractorsnot notified of their responsibilities.

(18) PUrchase orders do not containE0 clause.(19) Posters not on display.

§ 60-2.24 Development and executionof programs.

(a) The contractor should conduct de-tailekanalyses of position descriptionsto insure that they accurately reflectposition functions, and are consistentfor the same position from one locationto another.

(b) The contractor should validateworker specifications by division, depart-ment, location or other organizationalunit and by job category using job per-formance criteria. Special attentionshould be given to academic, experienceand skill requirements to insure that therequirements in themselves do not con-stitute inadvertent discrimination. Spe-cifications should be consistent for thesame job classification in all locationsand should be free from bias as regardsto race, color, religion, sex, or nationalorigin, except where sex is a bona fideoccupational qualification. Where re-quirements screen out a disproportionatenumber of minorities or women such re-quirements should be professionallyvalidated to job performance;

(c) Approved position descriptionsand worker specifications, when used bythe contractor, should be made availableto all members of management involvedin the recruiting, screening, selection, andpromotion process. Copies should alsobe distributed to all recruiting sources.

(d) The contractor should evaluatethe total selection process to insure free-dom from bias thus, aid the attain-ment of goals and objectives.

(1) All personnel involved in the re-cruiting, screening, selection, promotion,disciplinary, and related processes shouldbe carefully selected and trained to In-sure elimination of bias in all personnelactions. -

(2) The contractor shall observe therequirements of the OFCC Order per-taining to the validation of employeetests and other selection procedures.

(3) Selection techniques -other thantests may also be improperly used so asto have the effect of discriminatingagainst minority groups and women.Such techniques include but are not re-stricted to, unscored interviews. unscoredor casual application forms, arrest rec-ords, credit checks, considerations ofmarital status or dependency or minor,children. Where there exist data sug-gesting that such unfair discriminationor exclusion of minorities or women ex-ists, the contractor should analyze hisunscored procedures and eliminate themif they are not .objectively valid,

(e) Suggested techniques to improverecruitment and increase the flow ofminority or female applicantS follow: .

(1) Certain organizations such as theUrban League, Job Corps, Equal Oppor-tunity Programs, Inc., Concentrated Em-ployment Programs, NeighborhoodYouth .Corps, Secondary Schools, Col-leges, and City Colleges with high minor-ity enrollment, the State EmploymentService, specialized employment agen-cies, Aspira, LLTLAC, SER, the G.I.Forum, the Commonwealth of PuertoRico are normally prepared to refer mi-nority applicants. Organizations pre-pared to refer women with specific skillsare: National. Organization for Women,Welfare Rights Organizations, Women'sEquity Action League, Talent sank fromBusiness and Professional Women (in-cluding 26 women's organizations), Pro-fessional Women's Caucus; Intercollegi-ate Association of University Women,Negro Women's sororities and service

groups such as Delta Sigma Theta,Alpha Kappa Alpha, and Zeta Phi Beta;National Council of Negro Women,American Association of UniversityWomen, YWCA. and sectarian groupssuch as Jewish Women's Groups, Cath-olic Women's Groups and ProtestantWomen's Groups, and women's colleges.In addition. community leaders as indi-viduals shall be added to recruitingsources.

(2) Formal briefing sessions should beheld, preferably on Company premises,with representatives from these recruit-ing sources. Plant tours, presentations byminority and female employees, clearand concise explanations of current andfuture job openings, position descrip-tions, worker specifications, explanationsof the company's selection process, andrecruiting literature should be an in-tegral part of the briefings. Formal ar-rangements should be made for referralof applicants, followup with sources, andfeedback on disposition of applicants.

(3) Minority and female employees,using procedures similar to subpara-graph (2) of this paragraph, should beactively encouraged to refer applicants.

(4) A special effort should be made toinclude minorities and women on thePersonnel Relations staff.

(5) Minority and female employeesshould be made available for participa-tion in Career Days, Youth MotivationPrograms, and related activities in theircommunities.

(6) Active participation in "Job Fairs"is desirable. Company representatives soparticipating should be given authorityto make on-the-spot commitments.

(7) Active recruiting programs shouldbe carried out at secondary schools, jure,for colleges, and colleges with predomi-nant minority or female enrollments.

(8) Recruiting efforts at all schoolsshould incorporate special efforts toreach minorities and women.

(9) Special employment programsshould be undertaken whenever possible.Some possible programs are:

(i) Technical and nontechnical co-opprograms with predominately Negro andwomen's colleges.

(ii) "After school" and/or work-studyJobs for minority youths, male andfemales.

(11i) Summer jobs for underprivilegedyouth, male and female.

(iv) Summer work-study programs formale and female faculty members of thepredominantly minority schools andcolleges.

(v) Motivation, training and employ-ment programs for the hard-core unem-ployed, male and female.

(10) When recruiting brochures pic-torially present work situations, the mi-nority and female members of the workforce should be included, eseecially whensuch brochures are used in school andcareer programs.

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(111 Help want& advertising shouiabe expanded to include the minority newsmedia and women's interest media ona regular basis.

If ) The contractor should insure thatminority and female employees are givenequal opportunity for promotion. Sug-gestions for achieving this result include:

Post or otherwise announce pro-motional opportunities.

(2) Make an inventory of current mi--nority and female employees to deter-mine academic, skill and experience levelof individual employee*. .

(3) Initiate necessary remedial, jobtraining and workstudy programs.

(4) Develop and implement formalemployee evaluation programs.

(5) Make certain "worker specifica-tions" have been validated on job. per-formance related criteria. (Neitherminority nor female employees shouldbe required to possess higher qualifica-tions than those of the lowest qualifiedincumbent.)

(6) When apparently qualified minor-ity or fern--* employees are passed overfor upee, 'eg, require supervisory per-sonr le submit written justification.

'establish formal career counsel-:: programs to include attitude devel-opment, education aid, job rotation,buddy system and similar programs.

(8). Review seniority practices andseniority clauses in union contracts toinsure such practices or clauses are non-discriminatory and do not have a dis-criminatory effect.

(g) Make certain facilities and com-pany-sponsored social and recreationactivities are desegregated. Actively en-courage all employees to participate.

(h) Encourage child care, housing andtransportation programs appropriatelydesigned to improve the employment op-portunities for minorities and women.§ 60-2.25 internal audit and reporting

:..ystenc,(a) The contractor should monitor

ecords of referrals, placements, trans-fers, promotions and terminations at alllevels to insure nondiscriminatory policyis carried out.

(b) The contractor should requireformal reports from unit managers on aschedule basis as to degree to whichcorporate or unit goals are attained andtimetables met.

(c) The contractor should review re-port results with all levels of manage-ment.

(d) The contractor should advise topmanagement of program effectivenessand submit recommendations to improveunsatisfactory performance.§ 60-2.26 Support of action programs.

(a) The contractor should appointkey members of management to serve onMerit Employment Councils, CommunityRelations Boards and similar organiza-tions.

ft)) The contractor should encourageminority and female employees to par-ticipate actively in National Allianceof Businessmen programs for youthmoti vation.

(c) The contractor should supportVocational Geldance Institutes. Vesti-bule Training Programs and similaractivities.

(d) The contractor should assist sec-ondary schools and colleges in programsdesigned to enable minority and femalegraduates of these institutions to com-pete in the open employment market ona more equitable basis.

(e) The contractor should publicizeachievements of minority and femaleemployees in local and minority newsmedia.

(f ) The contractor should supportprograms developed by such organiza-tions as. National Alliance of Business-men, the Urban Coalition and otherorganizations concerned with employ-ment opportunities for minorities orwomen.

Subpart D-- Miscellaneous§ 60-2.30 Uae of goals.

The purpose of a contractor's estab-lishment and use of goals is to insurethat he meet his affirmative action ob-ligation. It is not intended and shouldnot be used to discrithinate against anyapplicant or employee because of race.color, religion, sex, or national origin.§ 60-2.31 Preemption.

To the extent that any State or locallaws, regulations or ordinances, includ-ing those which grant special benefits topersons on account of sex, are in con-feet with Executive Order 11246. asamended, or with the requirements ofthis part, we will regard them as pre-empted under the, Executive Order.§ 60-2.32 Supersedure.

All orders, instructions, regulations,and memoranda of the Secretary of.Labor, other officials of the Departmentof Labor and contracting agencies arehereby superseded. to the extent. thatthey are inconsistent herewith. includ-ing a previous "Order No. 4" from thisOffice dated January 30, 1970. Nothingin this part is intended to amend 41CFR 60-3. published in the FEDERALREGISTER on October 2, 1971 or. EmployeeTesting and Other Selection Proceduresor 41 CFR 60-20 on Sex DiscriminationGuidelines. .

Effective, date. This part shall becomeeffective on the date of its publicationin the FEDERAL REGISTER (12-4-71).

Signed at Washington, D.C., this 1stday of December 1971.

J. D. Horicsoil.Secretary of Labor.

HORACE E. MENASCO,Acting Assistant Secretaryfor Employment Standards.

. JOHN L. WILHS,Director, Office of

Federal Contract Compliance,[FR DoC.71 -17789 Filed 12-3-71;8:151 amt

TAB D

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U.S. DEPARTMENT OF LABOROFFICE OF FEDERIL CONTRACT COMPLIANCE

WASHINGTON, D.C. 20210

CHAPTER 60 Office of Federal Contract Compliance,Equal Employment Opportunity, Department of Labor

e/ Register, Vol. 35, No. III -- Tuesday, June 9, 1970)(Reprint fro

George P. Shultz, Secretary John L. Wilks, Director

Title 41PUBLIC CONTRACTS

AND PROPERTY MANAGEMENTChapter 60--- Office of Federal Con-

tract Compliance, Equal Employ-ment Opportunity, Department ofLabor

PART 60-20--SEX DISCRIMINATIONGUIDELINES

On January 17, 1969, proposed guide-lines were published at 34 F.R. 758 toamend Chapter 60 of Title 41 of theCode of Federal Regulations by adding anew Part, 60-20, Persons interested weregiven an opportunity to file written data,views, or argument concerning the pro-posals. Also, Public hearings were heldon August 4, 5, and 6, to receive oralpresentations from interested persons.

Having oonsiderea all relevant ma-terial, 41 CF'R Chapter 60 is herebyamended by adding r. new Part 60-20 toread as follows:Sec.80-20,160-20.260-20,360-20.480-20.560-20.6

and purpose.Recruitment a:.).4 advertisement.Job policies s.nci practices.Seniority systems.Discrimitml...:. wages.Aftirtnats

At-rtioirrr: rib.. pr.-.slops of this Part60-20 Leaned nada: act_ 201, .5.0. 11248, 30P.R. 12319, r..nd tea. 11376, 32 F.R. 14303.

g 60-20.1 Tide end aurp 5se.The purpose of e

Part is to setand guidelinesContrazt. Cote e"plementation c.

for the promo ?:opportunitiesor seeking ema,contractors an.

erovisions in thisa a interpretations

,affice of :Federaleegardirig the im-aaa Order 11375

.r. iaseeing of equalY')..3 kl7t Ployed

with Governmententraetors or with

oontractors ara entraetors perform-ing tinder fecle-1-2,:';., onestanctioncontracts, wit.bee:,' xrl to sex, Experi-ence has indicea speceel problemsrelated to the 12:if,. tat. et of Execue

Jive Order lleea, e:.- Attire a definitive'..lerestment bezeorea, the. terns of the orderitself. 'These interpeatations are to beread in connection with existing regula-tions, set forth in Part, 60-1 of thischapter.§. 60-20.2 litecrulint,on end advertise-

(a). Employers engaged .in Fruitingactivity mustereeruit employees of bothsexes Vie . all jobs unless. sex is a bonafide occupational rainlifiCation

(b) Advertisement in newspapers andother media for employment must notexpress a sex .preeerence unless sex is abona fide occimational qualification forthe job, The placement of an advertise-ment in .columns headed .'Male" cr"Female" will be considered an wanes-Gioia lee a preference, limitation, specifica-tion, or. discrimination based pia sex.§ 60-20.3 Job policies and practices.

(a) ritten personnel policies relatingto thii Abject area must expressly in-dicate that there shall be no discrimina-tion against employees on account of sex.If the employer deals with a bargainingrepresentative- for his employees andthere Is:a written agreethent on condi-dons of employment, such agreementshall pot be inconsistent with theseguidellnei

(b). EniploeeeS of both sexes. shall haveatl equOl oPPOrtunitY to, ally availablejob taat he or she is qualified to perform,unless 'sex is 'a bona fide occupational

.

nom In, most Government contract work.there .are only limited instances where validreasons can be expected to exist which wouldjustify-the exclusion of all men at all womenfrom any given job.

(c) 'rhe'emplOyer must not Make anydie:Mellon 'bared tiaon sex 'in eiriploy-nletit .opPertunities, wages, hours, orother conditions of employment. In 'thearea oteniployer contributions Lot insur-ance, pensions, welfare programs andother similar "fringe benatita': the em-ployer will not be considered to haveviolated these aultieline.a if his oontribu-tions are the same for men and women orif the restaging benefits are equal.

(4)^.Anr distinction between marriedand uninarried persons of one se,IE taatt' not made between married and un-married persons of the opposite sex willbe considered to be a distinction madeon the, basis of :pax. Similarly, ap em-ployeri.poust "zacira deny eraployniant towomen with yoang chileixeie unless it hasthe same exclusionariamlicies for men;or terminate an employee of one sex ina Vadiceilar job classificeakon uponreachtigas oertain age uneess,the samerule is applip.ble to mepaliers of theopposite sex.

(e).TL-A eamiceners policies and Moa-t:does must assure appropriate physical

_to leope sexes. 'The einplgyer.may not Aquae to hire men or women, order" :Alen fe viomem: a particular Jobbecause there are no :restroom or asso-ciated facilities, unless the employer isabps to Olio* that the donstruetion oftlagifiaMaiesNvoidel be mares:ion:able forRaab Sada!: lextedefriee expe nse. on lackof apatio.

(f) (1) An employer must not deny afemale employee the right to any jobthat she is qualified to perform in reli-ance upon a State "protective" law. Forexample, such laws include those whichprohibit women from performing in cer-tain types of occupations (e.g., a bar-tender or a core-maker) from workingat jobs requiring more than a certainnumber of hours; and from working atjobs that require lifting or carryingmore than designated weights.

(2) Such legislation was intended tobe beneficial, but, instead, has been foundto result In restricting employment op-portunities for men and/or women. Ac-cordingly, it cannot be used as a basisfo. denying employment or for establish-ing sex as a bona fide occupationalqualification for the J ob.

(g) (1) Women shall not be penalizedin their conditions of employment be-cause they require time away from workon account of childbearing. When, un-der the employer's leave policy thefemale employee would qualify for leave,then childbearing must be considered bethe employer to be a justification forleave of absence for female employeesfor a reasonable period of time. For ex-ample, if the female employee meets theequally applied minimum length ofservice requirements for leave time, shemust be granted a reasonable leave onaccount of childbearing. The conditionsapplicable to her leave (other than thelength thereof) and to her return toemployment, shall be in accordance withthe employer's leave policy.

(2) II the employer has no leavepolicy, childbearing must be consideredby the employer to be a justification fora leave of absence for a female employeefor a reasonable period of time. Follow-ing childbirth, and upon signifying herintent to return within a reasonable time,such female employee shall be reinstatedto her original job or to a position oflike status and pay, without loss ofservice credits.

(h) The employer must not specifyan differences for male and female em-ployees on the basis of sex in eithermandatory or optional retirement age.

(1) Nothing in these guidelines shallbe interpreted to mean that differencesin capabilities for Job assignments donot exist among individuals and thatsuch distinctions may not be recognizedby the employer in making specific as-signments. The purpose of these guide-lines is to insure that such distinctionsare not based upon sex.

§60.-20,4 Seniority system.Where they exist, seniority lines and

lists must not be based solely upon sex.Where such a separation has existed, theemployer must eliminate this distinc-tion.

§ 60t0.3. Discriminatory wages.(1) The employer's wages schedules

must not be related to or based on thesex of the employees.

Nora. The more obvious cases of discrimi-nation lexist where employees of differentsexes are paid different wages on Jobs whichrequire sUbstantially equal skill. effort andresponsibility and are performed under sim-ilar worklif!' conditions.

(b) The 'employer may not discrim-inatorily restnict one sex to certain jobclassifications. In such a Situation, theemployer must take steps to make sobsavailable to all qualified employees inall classifications without regard to sex.(Example: An electrical manufacturingcompany may have a production divi-sion with three functional units: One(assembly) all female; another (wiring).all male; and a third (circuit boards).

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also all male. The highest wage attain-able in the assembly unit is considerablyless Lhan that in the circuit board andwiring units. In such a case the em-ployer must take steps to provide qual-ified female employees opportunity forplacement in job openings in the othertwo units.)

(c) To avoid overlapping and conflict-ing administration the Director will con-sult with the Administrator of the Wageand Hour Administration before issuingan opinion on any matter covered byboth the Equal Pay Act and ExecutiveOrder 11246, as amended by Ei,:ccutiveOrder 11375.§ 60-29.6 Affirmative action.

(a) The employer shall take affirma-tive action to recruit women to applyfor those jobs where they have beenpreviously excluded.

Vora. This can be done by various meth-ods. Examples Include: (I) including in itin-eraries of recruiting trips women's collegeswhere graduates with sadibt desired by theemployer can be found. and female studentsof coeducational institutions and (2) de-alglatng advertisements to indicate thatwomen will be considered equally with menfor jobs.

(o) Women have not been typicallyfound in significant numbers in man-ageriadnt. 'In many companies manage-ment trainee programs are one of theladders to management positions. Tra-ditionally, few, if ahy, women have.beenadmitted into these progratils. An im-portant element of affirmative actionshall be a commitment to include womencandidates in such programs.

(c) Distinctions based on sex may notbe made in other training programs.Both sexes should have equal access toall training programs and affirmative ac-tion programs should require a demon-stration by the employer that such ac-cess has been provided.

Effective date. This part is effectiveJune 9,1970,

Mithed At'. Washington, 11C.. this 2dday of June 1970.

Gigolos P. Sunni Z,Secretary of Labor.

(P.R. Doc. 70-711-8; rued, Jane 8, 1970;8:47 a.m.)

TA!.. E

U.S. DEPARTMENT OF LABOROFFICE OF FEDERAL CONTRACT COMPLIANCE

WASHINGTON, D.C. 20210

CHAPTER 60 -- Office of Federal Contract Compliance,Equal Employment Opportunity, Department of Labor

(Reprint from Federal Register, Vo1.36, No.192- Saturday, October 2, 1971)

PART 60-3 Em loyee Testing & Other Selection Procedures

Title 41 PUBLIC CONTRACTS

AND PROPERTY MANAGEMENTChapter 60Office of Federal Con-

tract Compliance, Equal, Employ-ment Opportunity, Department ofLabor

PART 60-3EMPLOYEE TESTINGAND OTHER SELECTION PROCEDURES

On April 21, 1971, notide of propOS6drule making was published in the ..,oartar,

REGISTER (36 P.R. 7532) with regard toamending Chapter 60 of Title 41 of theCode of Federal Regulations by adding anew Part 60-3, dealing with employeetesting and other selection procedures.Interested persons were given 30 days inwhich to submit written comments, sug-gestions, or objections regarding the pro-posed amendments.

Having considered all relevant mate-rial submitted, I have decided to, and dohereby amend Chapter 60 of 'Title 41 ofthe Code of Federal Regulations by add-ing a new Part 60-3, reading as follows:Sec.60-31 Purpose and scope.60-3.2 Test defined.60-3.3 'Violations of the Executive order.60-3.4 Evidence of validity; meaning of

technically feasible.60-3.5 Minimum standards for validation.60-3,6' Presentation of evidence of validity.60-3.7 Use of other validity studies.60-3.8 Assumption of validity.60-3,9 Continued use of tests.00-3.10 Employment agencies and state em-

ployment services.60-3.11 Disparate treatment.60-3.12 Retesting.80 -3.13 Other selection techniques.60-3.14 Afffrmative action.60-3.15 Recordkeeping.60-3.16 Sanctions.60-3.17 Exemptions.60-3.18 Effect on other

regulations.rules and

Minim:me: The provisions of this Part60-3 are issued under secs. 201, 2G5, 206(a),301, 303(a), 303(b), and 403(b) of ExecutiveOrder 11246, as amended, 30 P.R. 12319; 32F.R. 14303; 34 P.R. 12986; 4 60-1.2 of Part60-1 of this chapter.

§ 60-3.1 Purpose and scope.(a) This order is based on the belief

that properly validated and standardizedemployee selection procedures can sig.=niflcantly contribute to the implemen-tation of nondiscriminatory personalpolicies, as required by Executive Order1124o, as amended. It is also recognizedthat professionally developed tests, whenused in conjunction with other tools ofpersonnel assessment and complementedby sound programs of job design, maysignificantly aid in the development, andmaintenance of an efficient work forceand, indeed, aid in the utilization andconservation of human resourcegenerally.

(b) (1) An examination of charges ofdiscrimination filed with the Office ofFederal Contract Compliance and anevaluation of the results of its compli-ance activities has revealed a decidedincrease in total test usage and a markedincrease in testing practices which havediscriminatory effects. In many cases,contractors have come to rely almost ex-clusively on tests as the basis for makingthe decision to hire, to promote. to trans-fer, to train, or to retain With the resultthat candidates are selected or rejectedon the basis of test scores. Where testsare so used, minority candidate,' fre-quently experience disproportio,iatelyhigh rates of rejectidn by failing to attainscore levels that have been established asminimum standards for qualification.

(2) It has also become clear that inmany instances contractors are using

tests as the basis for employment deci-sions without evidence that they are validpredictors of employee job performance.Where evidence in support of presumedrelationships between test performanceand job behavior is lacking, the possibil-ity of discrimination in the application oftest results must be recognized. A testlacking demonstrated validity, i.e. hav-ing no known significant relationship tojob behavior, and yielding lower scoresfor classes protectedby Executive Order11246, as amended, may result in therejection of many who have necessaryqualifications for successful workperformance.

(c) Section 202 of Executive Order11246, as amended, requires each Gov-ernment contractor and subcontractorto take affirmative action tc insure thathe will not discriminate against any em-ployee or applicant for employment be-cause of race, color, religion, sex, or na-tional origin. This order is designed toserve as a set of standards for contractorsand subcontractors subject to ExecutiveOrder 11246, as amended, in determiningwhether their use of tests conforms with"the requirements of the Executive Order.'§ 60-3.2 Test defined.

For the purpose of this order, the term"te:A' is defined as any paper-and-pencilor performance measure used as a basisfor any employment decision. This orderapplies, for example, to ability testswhich are designed to measure eligibilityfor hire, transfer, promotion, training,or retention. This definition includes, butis not restricted to, Measures of generalintelligence, mental ability and learningability; specific intellectual abilities;mechanical, clerical and other aptitudes;dexterity and coordination; knowledgeand proficiency; occupational and otherinterests; and attitudes, personality ortemperament. The term "test" alsocovers all other formal, scored, quantifiedor standardized techniques of assessingjob suitability including, for example,personal history and backgrolind re-quirements which are specifically used asa basis for qualifying or disqualifyingapplicants or employees, specific educational or work history requirements,scored interviews, biographical informa-tion blanks, interviewers' rating scalesand scored application forms. The term"test" shall not include other selectiontechniques discussed in § 60-3.13.§ 60-3.3 Violation of Executive order.

A contractor regularly using a testwhich has adversely affected the oppor-tunities of minority persons or womenfor hire, transfer, promotion, training,or retention violates Executive Order11246, as amended, unless he can dem-onstrate that he has validated the testpursuant to the requirements of thispart.

Except for the necessary differences inlanguage arising from the different legalauthority of the two agencies and for rea-son.- of clarity, this order and the Guidelineson Employee Selection Procedures, issuedearlier by the Equal Employment Oppor-tunity Commission (35 P.R. 12333, Aug. 1,1970) are intended to impose the same basicrequirements on pena,ns and contractors'covered by each of them.

§ 60-3.4 Evidence of validity; meaningof technically feasible.

(a) Each contractor using tests to se-lect from among candidates for hire,transfer, promotion, training, or reten-tion shall have available for inspectionevidence that the test is being used ina manner which does not violate 60-3.3.

(b) Where technically feasible, a testshould be validated for, each minoritygroup with which it is used; that is, anydifferential rejection rates that may ex-ist, based on a test, must be relevantto performance on the jobs in question.

(c) The term "technically feasible"as used in paragraph (b) of this sectionand elsewhere in this part means hav-ing or obtaining a sufficient number ofminority individuals to achieve findingsof statistical and practical significance,the opportunity to obtain unbiased jobperformance criteria, etc. It is the re-sponsibility of the persons claimingabsence of technical feasibility to dem-onstrate evidence of this absence.

(1) Evidence of a test's validity shouldconsist of empirical data demonstratingthat the test is predictive of or signifi-cantly correlated with important ele-ments of work behavior which compriseor are relevant to the job or jobs forwhich candidates are being evaluated.

(2) If job progression structures andseniority provisions are so establishedthat new employees will probably, withina reasonable period of time and in agreat majority of cases, progress to ahigher level, it may be considered thatcandidates are being evaluated for jobsat that higher level. However, where jobprogression is not so nearly automatic,or the time span is such that higl".:^ei. niveljobs or employees' -potential may e e.x-pected to change in significant ways, Itshall be considered that candidates arebeing evaluated for a job at or near theentry level. This point is made to under-saore the principle that attainment ofor performance at higher level job is arelevant criterion in validating employ-,ment tests only when there is a highprobability that persons employed willin fact attain, that higher leVel job withina reasonable period of time.

(3) Where a test is to be used in dif-ferent units of a multiunit organizationand no significant differences exist be-tween units, jobs, and applicant popu-lations, evidence obtained hi one unitmay suffice for the others. Similarly,where the validation process requires thecollection of data throughout a multi-unit organization, evidence of Validityspecific to each unit may not be required.There may also be instances where evi-dence of validity is appropriately ob-tained from other companies in the sameindustry. Both in this instance and inthe use of data collected throughoutmultiunit organization, evidence of valid-ity specific to each unit or company maynot be required provided that no signifi-cant differences exist between compa-nies, units, jobs, and applicant popula-tions.§ 60-3.5 Minimum standards for vali-

dation.(a) For the purpose of satisfying the

requirements of this part, empirical evi-

- E2 -deuce in support of a test's validity mustbe based on studies employing generallyaccepted procedures for determining cri-terion-related validity, such as those de-scribed in "Standards for Educationaland Psychological Tests and Mannels,"published by the American PsychologicalAssociation, 1200 17th Street NW., Wash-ington, DC 20036. Evidence of content orconstruct validity, as defined, in thatpublication, may also be appropriatewhere criterion-related validity is notfeasible. However, evidence for contentor construct validity should be accom-panied by sufficient information fromjob analyses to demonstrate the rele-vance of the content, in the case of jobknowledge or proficiency tests, or theconstruct, in the case of trait measures.Evidence of content validity alone will beacceptable for well-developed tests thatconsist of suitable samples of the essen-tial knowledge, skills or behaviors com-posing the job in question. The types ofknowledge, skills or behaviors contem-plated here do not include those whichcan be acquired in a brief orientation tothe job. In the case of personal history,background, educational, and work his-tory requirements which are specificallyused as a basis for qualifying or dis-qualifying applicants (see § 60-3,2), evi-dence of content or construct validitymay be sufficient.

(b) Although any appropriate valida-tion strategy may be used to develop suchempirical evidence, the following mini-mum standards, as applicable, must bemet in the research approach and in thepresentation of results ithich constituteevidence of validity;

(1) Where a validity study is con-ducted in which tests are administeredto applicants, with criterion data col-lected later, the subjects mustbe representative of the normal or typicalcandidates group for the job or jobs inquestion. This further assumes that theapplicant sample is representative of theminority population available for the jobor jobs in question in the local labor mar-ket. Where a validity study is conductedin which tests are administered topresent employees, the sample must berepresentative of the minority groupscurrently included in the applicant popu-lation. If it is not technically feasible toinclude minority employees in validationStudies conducted on the present workfarce, the conduct of a validation studywithout minority candidates does notrelieve any contractor of his subsequentobligation for validation when inchisionof minority candidates becomes techni-cally feasible.

(2) Tests must be administered andscored Under controlled and standardizedconditions, with proper safeguards toprotect the security of test scores and toinsure that scores do not enter into anyjudgments of employee adequacy thatare to be used as criterion measures.

(3) The work behaviors or other cri-teria of employee adequacy which thetest is intended to predict or identifymust be fully described; and, addition-ally, in the case of rating techniques, theappraisal form(s) and instructions tothe rater(s) must be included as a partof the validation evidence. Such criteria

may include measures oilier than actualwork proficiency, such as training time,supervisory ratings, regularity of attend-dance and tenure. Whatever criteria areused they must represent major orcritical work behaviors as revealed bycareful job analyses.

(4) In view of the possibility of biasinherent in subjective evaluations, su-pervisory rating techniques should becarefully developed, and the ratingsshould be closely examined for evidenceof bias. In addition, minorities or womenmight obtain unfairly low performancecriterion scores for reasons other thansupervisors' prejudice, as, when, as newemployees, they have had less oprartu-nity to learn job skills. In genera:, allcriteria must be examined to ensurefreedom from factors which would un-fairly depress the scores of minoritygroups or women.

(5) Data must be generated and re-sults separately reported for minorityand nonminority groups wherever tech-nically feasible. Where a minority groupis sufficiently large to constitute an iden-tifiable factor in the local labor Market,but validation data have not been de-veloped and presented separately for thatgroup, evidence of satisfactory validitybased on other groups will be regardeas only provisional compliance with thisorder pending separate validation of thetest for the minority group in question(see § 60-3.9). A test which is differen-tially valid may be used in groups forwhich it is valid but not for thoSe inwhich it is not valid. In this regard, wherea test is valid for two groups but onegroup characteristically obtains highertest scores than the other without a cor-responding difference in job perform-ance, .test results must be applied so asto predict the same probability of jobsuccess in both groups.

(c) In assessing the utility of a testthe following considerations will beapplicable:

(1) The relationship between the testand at least one relevant criterion mustbe statistically significant. This ordi.narily means that the relationship shoulabe sufficiently high as to have a proba-bility of no more than 1 to 20 to haveoccurred by change. However, the use ofa single test as the sole selection device.when that test is valid against only onecomponent of job performance, will bscrutinized closely.

(2) In addition to statistical signifi-cance, the practical significance of the re-lationship between the test and criterionshould also be considered. The magnitudeof the relationship needed for practicalsignificance or usefulness is affected byseveral factors, including:,

(i) The larger the. proportion of ap-plicants who are hired for or placed onthe job, the higher the relationship needsto be in order to be practically useful.Conversely, a relatively low relationshipmay prove useful when proportionatelyfew job vacancies are available;

(ii) The larger the proportion of ap-plicants who become satisfactory em-pliiyees when not selected on the basis ofthe test, the higher the relationship needsto be between the test and a criterion ofjob success for the test to be practically

- E3useful, Conversely, a relatively low rela- names or descriptive labels; all forms of § 60-3.12 Retesting.tionship may prove useful when propor- promotional literature; data bearing on Contractors should provide an oppor-tionately few applicants turn out to be the frequency of a test's usage; testi- (unity for retesting and reconsiderationmonial statements of sellers, users, orsatisfactory; to earlier "failure" candidates who have

(iii) The smaller the economic and consultants; and other nonempirical or availed themselves of more training orhuman riski involved in hiring an un- anecdotal accounts of testing practices experience. In particular, if any applicantqualified applicant relative to the risks or testing outcomes- or employee during the course of anentailed in rejecting a qualified applicant, (b) Although professional supervision interview or other employment procedurethe greater the relationship needs to be of testing activities may help greatly to claims more education or experience,in order to be practically useful. Con- insure technically soutd and nondiscrim- that individual should be retested.vcrsely, a relatively low relationship may inatory test usage, such involvementprove useful when the former risks are alone shall not be regarded as constitut- § 60-3.13 Other selection teclinigne.

ing satisfactory evidence of test validity.relatively high. Selection techniques other than tests,§ 60-3.6 Presentation of evideoce of § 60-3.9 Continued use of tests. as defined in § 60-3.2. may be improperly

validity. Under certain conditions where vali- used so as to have the effect of discrim-inatig against minority groups ordation is required by this order, a con- n

The presentation of the results of a women. Such techniques include, but arevalidation study must include statistical tractor may be permitted to continue the not restricted to, unscored or casual

ninterviews, unscored application formsand, where appropriate, graphic repro- use of a test which is not at the moment

fully supported by the required evidencesentatios of the relationships between and unscored personal history and back-of validity. If, for example, evidence ofthe test and the criteria, permitting judg- ground requirements not used uni-criterion-related validity in a specificments of the test's utility in making pre- formly as a basis for qualifying or dis-dictions of future work behavior. (See setting is technically feasible and re-

quired but not yet obtained, the use of qualifying applicants. Where there are* 60-3.5(c), concerning assessing utility

the test may continue: Provided: (a) data suggesting employment discrimina -of a test.) Average scores for all tests and tion, the contractor may be called uponcriteria must be reported for all relevant The contractor can cite substantial to present evidence concerning the valid-evidence of validity as described in § 60-subgroups, including minority and non- ity of his unscored procedures regardlessminority groups where differential vali- 3.7 (a) and (b) ; and (t) he has in of whether tests are. also used, the cvi-progress validation procedures which aredation is required. Whenever statistical dence of validity being of the same typesdesigned to produce, within a reasonableadjustments are made in validity results

time, the additional data required. It is referred to in §§ 60-3.4 and 60-3.5. Datafor less than perfect reliability or for re- suggesting the possibility of discrimina-expected also that the cont.:-&-or maystriction of score range in the test or the tion exists, for example, when there arecriterion, or both, the supporting evi- have to alter or suspend test cutoff scores

so that score ranges broad enough to per- higher rates of- rejection of minoritydence from the validation study must be candidates than of nonminority condi-

imit the identification of criterion-relatedpresented in detail, Furthermore, for dates for the same job or group of jobseach test that is to be established or con- validity will be obtained. or when there is an undertitillzation oftinned as an operational employee selec- § 60-3.10 Employment agencies and minority group personnel among presenttion instrument, as a result of the valida- suite employment services. employees in certain types of jobs. If thetion study, the minimum acceptable cut- A contractor utilizing the services of contractor is unable or unwilling to per-off (passing) score, if any, on the test any private employment agency, state form such validation studies, he has themust be reported. It is expected that each employment agency or any other peron, option of adjusting employment procc-operational cutoff score will be reason- agency or organization engaged in the dures so as to eliminate the conditionsable and consistent with normal expects- selection or evaluation of personnel suggestive of employment discrimination.Lions of proficiency within the work force

which the study wa which makes its selections or evaluations § 60-3.14 Affimuitive action.or grtap on was Of personnel wholly or partially on theconducted. basis of the results of any test shall have Nothing in this order shall be inter-preted as diminishing a contractor's obli-§ 60-3.7 Use of other validity studies. available evidence that any test used by

such person, agency or organization is inIn cases where the validity of a testgation under both title VII of the Civil

conformance with the requirements of Rights Act of 1964 and Executive Ordercannot be determined pursuant to 11246, as amended, to take affirmative§§ 60-3.4 and 60-3.5 (e.g., the number this order. action to ensure that applicants or em-of subjects is less than that required § 60-3.11 Disparate treatment. ployees are treated without regard tofor a technically adequate validation The principle of disparate or unequal race, color, religion, scx, or nationalstudy, or an appropriate criterion mess- treatment must be distinguished from the origin. Specifically, where substantiallyure cannot be developed) , evidence from concept of. test . validation. Disparate equally valid tests can be used for a givenvalidity studies conducted in other or- treatment, for example, occurs where purpose, the contractor will be expectedganizations, such as that reported in test members of a group protected by Execu- to use the test or battery of tests whichmanuals and professional literature, may five Order 11246, as amended, have' been will have the least adverse effect on thebe considered acceptable wheil. re The employment opportunities of minoritiesdenied the same opportunities for hire,studies pertain to jobs whieli are corn- transfer or promotion as have been made or women. Further, the use of tests whichparable (i.e., have basically the same available to other -employees or appli- have been validated pursuant to thistask elements), and (b) there are no cants. Those employees or applicants order does not relieve contractors of theirmajor differences in contextual variables who can be shown to have been obligation to take affirmative action toor sample composition which are likely denied equal treatment because of prior afford employment and

classestraining otito affect significantly validity. Any con- discriminatory practices or policies musttractor citing evidence from other valid- at least be afforded the same opportwii- (unities to members of P

ty studies as evidence of test validity by. Executive Order 11246, as amended.ties as had existed for other employeesfor his own jobs must demonstrate that or applicants during the period of die- § 60-3.15 Reeordkeeping.he Meets requirements in paragraphs (a) crimination, Thus, no new test or otherand (b) of this section. employee selection standard can be im- Each, contractor shall maintain, andsubmit upon request, such records and§ 60-3.8 Assumption of validity. posed upon an individual or class of

individuals protected by Executive Order documents relating to the nature and(a) Under no circumstances will the 11246, as amended, who, but for this prior use of tests, the validation of tests, and

general reputation of a test, its author or discrimination, would have been granted test results, as may be required under theits publisher, or casual reports of tent the opportunity to qualify under less provisions of this chapter and under theutility be accepted in lieu of evidenceof validity, Specifically ruled out are; stringent selection standards previously orders and directives issued by the OfficeAssumptions of validity based on test in force. of Federal Contract Compliance.

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§ 60-3.16 Sanctions.(a) The use of tests and other selec-

tion techniques by contractors as qualifi-cation standards for hire, transfer, pro-motion, training or retention shall beexamined carefully for possible indica-tions of noncompliance with the require-ments of Executive Order 11246, asamended,

(b) A determination of noncompliancepursuant to the provisions of this parts gal] be grounds for the imposition ofsanctions under Executive Order 11246,as amended.§ 60-3.17 Exemptions.

(a) Requests for exemptions from thisorder or any part thereof must be madein writing to the Director, Office of Fed-eral Contract Compliance, Washington,D.C., and must contain a .statement ofreasons supporting the request, Such re-quest shall be forwarded through andshall contain the endorsement of thehead of the contracting agency. Exemp-tion may be granted for good cause.

(b) The requirements of this partshall not apply to any contract when thehead of the contracting agency deter-mines that such contract is essential tothe national security and that its awardwithout complying with such require-ments is necessary to the national secu-rity. Upon making such a determination,the agency head will notify the Director,in writing, within 30 days.§ 60-3.18 Effect of this part on other

rules and regulations.{a) AU orders, instructions, regula-

tions, and memoranda of the 'Secretaryof Labor, other officials of the Depart-ment of Labor and contracting.agenciesare hereby superseded to the extent thatthey are inconsistent herewith.

(b) Nothing in this part shall be inter-preted to diminish the present contractcompliance review and complaint inies-tigation programs.

Effective date. This part shall becomeeffective on the date of its publicationin the FEDERAL REGISTER (10-2-71) ,

Signed at Washington, D.C., this 27thday of September 1971.

.1. D. HODGSON,Secretary of Labor.

[FR Doc.71-14457 Filed 10-1-71;8:46 am]

TAB F

Rules governinggrants+ loanfS.A.nd contract..

Approval byPresident.

- FlPublic Law 88-352

88th Congress, H. R. 7152July 2, 1964

TITLE VINONDISCRIMINATION IN FEDERALLYASSISTED PROGRAMS

Six. 601. No person in the United :Staites shall, on the ground ofrace, color, or national origin, be excluded from participation in, bedenied the benefits. of, or be subjected to discrimination under. anyprogram or activity receiving Federal financialel.

SEC. PIN, .141.11P) Federill dep:kti And tviihey 'empow eredIneXl.' ;,ttl Federal financial assistance to any program or activity, by.way of..--grant, loan, or contract other than a contract of insuranceor guaranty, is authorized and directed to effectuate the provisions ofsection -601 with respect to such program or activity by issuing rules,regulations, or orders of general applicability which shall be consistentwith achievement of the objectives of the statute authorizing thefinancial assistance in connection with Which the action is taken.No such rule, regulation, or order shall become effective unless anduntil approved by the President. Compliance with any requirementadopted pursuant to this section may be effected (1) by the termina-tion of or refusal to grant or to continue assistance under such programor activity to any recipient as to Whom there has been an express find-ing on the record, after opportunity for hearing, of a failure to complywith such requirement, but such termination or refusal shall be limitedto the particular political entity, or part thereof, or other re,cipientas to whom such a finding has been made and, shall be limited in itseffect to the particular program, or part thereof, in which such non-compliance has been so found, or (2) by any other means authorizedby law : Provided, however, That no such action shall be taken untilthe department or agency concerned has advised t he appropriate person'or persons o the failure to comply with the requirement and hasdetermined that compliance cannot be. secured by voluntary Means.

Termits,".1 on. In the case of any action terminating, or refusing to grant or continue,assistance because of failure to comply with a requirement imposedpursuant to this section, the head of the Federal department or agencyshall file with the committees of the House and Senate having legis-lative jurisdiction over the program or activity involved'a full writtenreport of the circumstances and the grounds for such action. No suchaction shall become effective until thirty days have elapsed after thefiling of such report.

Judicial SEC." 603. Any department or agency action taken pursuant to sec-. re view. tion 60 shall be subject to such judicial review as may otherwise be

provided by law for similar action taken by such department oragency on other groundS. In the case of action, not otherwise subjectto judicial review, terminating or refusing to grant or to continuefinancial- assistance upon a finding of failure to comply with anyrequirement imposed pursuant to section 602, any person aggrieved(including any State or political subdivision thereof and any agencyof either) may obtain judicial review .. of such action in accordance

so Stat. 243. with section 10 of the Administrative Procedure Act, and such action5 US C 1009. shall not be deenied committed to unreviewable agency discretion

within the meaning of that section.Sec. 604: Nothing contained in this title shall 'be- construed to

authorize action under: this title by any department or agency withrespect to any employment practice- of any employer, employmentagency, or labor organization except where a primau objective of theFederal financial assistance is to provide employment..

SEC. 605. Nothing in this title 'shall add to or detract from any exist-ing authority with respect to any program or activity under whichFederal financial assistance is extended by way of a contract of insur-ance or guaranty.

- Cl -

DEPARTMENT OF HEALTH, EDUCATION, AND WELFAREOFFICE OF THE SECRETARY

WASHINGTON. D.C. 20201

August 1972

MEMURANDUM TO PRESIDENTS OF INSTITUTIONS OF HIGHER EDUCATIONPARTICIPATING IN FEDERAL ASSISTANCE PROGRAMS

As you may know, on June 23, 1972, the President signed into law the"Education Amendments of 1972'" (effective July 1, 1972). Title IX ofthis Act yrohibits sex discrimination in all federally assisted educationprograms and amends certain portions of the Civil Rights Act of 1964.

The Office for Civil Rights, Department of Health, Education, andWelfare, is presently in the process of developing regulations and guide-lines to implement Title IX. For your immediate information, however, Ihave set forth below a brief summary of the pertinent provisions ofTitle IX, and have attached a copy of the law.

A. Basic Provision: Title IX of the Higher Education Act states:

"No person in the United States shall, on the basis of sex, be excludedfrom participation in, be denied the benefits of, or be subjected todiscrimination under any education program or activity receivingFederal Financial assistance..."

This sex discrimination provision of Title IX is patterned after TitleVI of the Civil Rights Act of 1964 which forbids discrimination on the basis of

race, color, and national origin in all federally assisted programs.By specific exemption, the prohibitions of Title VI do not reachemployment practices (except where the primary objective of the Federal

aid is to provide employment). However,.there is no similar exemptionfor employment in Title IX.

Therefore, effective July 1, as a condition of receiving Federalassistance, your institution must make all benefits and services available

to students without discrirination on the basis of sex. As indicated below,

there are exemptions to and a deferment in implementing the admissionsprovision. However, all other requirements of this Title are presentlyin effect.

B. Which Institutions are Covered:

All educational programs and activities which are offered by any institu-tion or organization and which receive Federal financial assistance byway of grant, loan, or contract other than a contract of insurance or

- G2 -

guaranty are covered. Title IX specifically lists the types of educa-tional institutions which are covered. These include public and privatepreschools, elementary and secondary schools, institutions of vocationaleducation, professional education, and undergraduate and graduate highereducation.

C. Provisions Concerning Admissions to Schools and Colleges:

1. Certain educational institutions covered by Title IX are pro-hibited from sex discrimination in all of their programs and activities,including admissions to their institutions. These institutions include:

a. Institutions of vocational education (public and private).

b. Institutions of professional education (public and private).

c. Institutions of graduate higher education (public andprivate).

d. Public undergraduate institutions of higher education(except those which-have been traditionally arid continually single-sex).

2. Exemptions from the admissions provisions.

Some educational institutions covered under Title IX are exemptedfrom complying with the prohibition against discrimination in admissions.These institutions are:

a. Private undergraduate institutions of higher education.

b. Elementary and secondary schools other than secondaryvocational schools whose primary purpose is to train student's in voca-tional and technical areas.

c. Public institutions of undergraduate higher educationwhich have Peen traditionally and continually single-sex.

Schools of vocational, professional, graduate' higher education, andpublic undergraduate higher education which are in transition fromsingle-sex institutions to co-educational institutions are exemptfrom non-discrimination in admissions for specified periods of timeprovided each is carrying out a plan approved by HEW, under which the

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transition will be completed. Although all these institutions are exemptfrom the requirement of immediately admitting students of the previouslyexcluded sex,they are required not to discriminate, as of the effectivedate of the Act (July 1, 1972), against any admitted students in any educa-tional program or activity offered by the educational institutions.

D. Other Exemptions:

1. Religious Institutions: Institutions controlled by religious

organizations are exempt if the application of the anti-discriminationprovision is not consistent with the religious tenets of such organizations.

2. Military Schools: Those educational institutions whose primarypurpose is the training of individuals for the military services of the

United States or the Merchant Marine are exempt.

E. Provision Relating to Living Facilities: The Act allows institutions

receiving Federal funds to maintain separate living facilities for

persons of different sexes.

F. Who Enforces the Act: The Federal departments empowered to extendaid to educational institutions have the enforcement responsibility.(The enforcement provisions are virtually identical to those of Title VIof the Civil Rights Act of 1964). Reviews can be conducted whether or

not a complaint has been filed. We presently are in the process ofdeveloping procedures under which this agency will represent all Federalagencies in the administration of Title IX, as is presently the caseunder Title VI of the Civil Rights. Act of 1964.

G. Who Can File Charges: Individuals and organizations can challengeany unlawful discriminatory practice in a Federal program or activity

by filing a complaint with the appropriate Federal agency. During thereview process, names of complainants are kept confidential if possible.

H. What Happens When a Complaint Is Filed: An investigation is conducted,

if warranted, and if a violation is found, informal conciliation andpersuasion are first used to eliminate the discriminatory practices.

I. Formal Enforcement Procedures: If persuasion fails, the Act providesfor formal heafings conducted by the Federal agency(s) Involved. Such

action can result in the termination or withholding of Federal financialassistance. In some instances, cases can be referred to the. Department ofJustice with a recommehdation that formal legal action be taken,. Recipientsof Federal monies which have been terminated or withheld can seek judiOialreview of the final order issued by the agency.

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J. Preferential Treatment: Institutions cannot be required to establishquotas or grant "preferential or disparate" treatment to members of onesex when an imbalance exists with respect to the number or percentageof persons of one 'sex participating in or receiving the benefits offederally assisted educational programs or activities. This provisionis analagous to the racial imbalance provision in Title VI which. statesthat the absenCe of a racial balance is not in itself proof of discrimina-tion. However, these provisions do not mean that corrective actionsmay not be required to overcome past discrimination.

K. Provision' Concerning Blind Students: Students cannot be deniedadmission on the grounds of blindness or severely impaired vision toany 'federally assisted education program or activity. The institution,however, is not required to provide special services for such persons.

We will provide more specific guidance on'the requirements of Title IX inthe near future. In the interim, should you have any questions relatingto this matter. please feel free to write to me.

'J. Stanley P9ttingerDi ctor, Office Civil Righ

Attachment

Exceptions.

Definition.

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Public Law 92-31892nd Congress, S. 659

June 23, 1972

Education Amendments of 1972

TITLE LXPROHIBITION. OF SEX DISCRIMINATION

SEX DISCRIMINATION PROHIBITED

SEC. 901. (a) No person in the United States shall, on the basis ofsex, be excluded from participation in, bedenied the benefits of, or hesubjected to discrimination under any education program or activityreceiving Fed 1.al financial assiStance, except that:

(1) 'in I ,rd to admissio..s to, educational institutions, thissection shall apply only to institutions of vocational education.professional edudation, and graduate higher education, and topublic institutions of undergraduate higher education ;

(2) in regard to admissions to educational institutions, thissection shall not apply (A), for one year from the date of enact-ment of this Act, nor for six years after such date in the case of aneducational institution which has begun the process of changingfrom being an institution which adMitS only students of one sexto being%an institution' which admits stUdents of both sexes, butonly if it is carrying out a plan for such a change :which isapproved. by the, Commissioner of Education or (B) for sevenyears from the date an educational institution beginsthe proCess of.changing from being an institution which adniits only studentsof only one sex to being an institution which admits students ofboth sexes, but only if it is carrying out a plan for such a change.which is approved by the Conunismoner of Education, whicheveris the later ;

(3) this section shall not apply to an educational institutionwhiCh is controlled by a religious organization if the applicationof this subsection would not be consistent with the religious tenetsof such organilation;

(4): thiS section shall not. apply to an educational institution'wh.ose mary_parpose is the t rai ning individuals "for -the mili-tary services of the, United States, or the merchant marine; and

(5) in regard to admissions this section shall not apply to anypublic institution of undergraduate higher education which is an

"institution that traditionally and continually from its establish;ment has had a policy of admitting only students of one sex.

(b) Nothing contained in Subsection (a) of this section shall beinterpreted to require any educational institution to grant preferentialor disparate treatment to the members of one sex on account of ,animbalance avhich may exist with respect to the total number or percent-age of persons of that sex participating in or receiving the benefitsOf any .aderally supported program Or activity, in comparison withthe total number or percentage of persons of that sex in any commu-nity, State, section, or other area : Provided, That this subsection shallnot be construed eo prevent the consideration in any hearing or pro-ceeding under this title of statistical evidence tending to show thatsuch an imbalance exists with respect to the participation in or receipto-!* the benefits of, any, such program or activity by the members ofone sex.

(c) For purposes of this title an educational institution means anypublic or private preschool, elementary, or secondary school, or anyinstitution of vocational,,professional, or higher education, except thatin the case of an edubational institution composed of more than oneschool, college, or department which are administratively separateunits, such term means' each such school, college, or department.

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FEDERAL ADMINISTRATIVE ENFORCEMENT

SEC. 902. Each Federal department and agency which is empoweredto extend Federal financial assistance to any education program oractivity, by. way of grant,. loan, or contract other than a .contract ofinsurance or guaranty, is 'authorized and directed to effectuate theprovisions of section 901 with respect to such program or activity byissuing rules, regulations, or orders of general applicability whichshall be consistent with achievement of the objectives of the statuteauthorizing the financial assistance in connection -.eith, which theaction is taken. No such rule, regulation, or order shall'ecome effectiveunless and until approved by the .President. Compliance with anyrequirement adopted pursuant to this section may be effected (1) bythe termination of or refusal to grant or to continue assistance undersuch program or activity to any recipient as to whom there has beenan express finding on the re,core, after opportunity for hearing, offailure to comply with such requirement, but such termination orrefusal shall be limited to the particular political entity, or partthereof, or other recipient as to whom such a finding has been made,and shall be limited in its effect to the particular program, or partthereof, in. which such noncompliance has been so found, or (2) byany other means authorized by law: Avvided however, That no suchaction shall: belaken until the department or agency concerned hasadvised the appropriate person or persons of the failure to complywith the requirement and has determined' that compliance'cannot besecured by voluntary means. In the case of any action terminating, or Report torefusing to grant or continue, assistance because of failure to comply congressionalwith a requirement imposed pursuant to this section, the head of the :.ommitt eFederal department or agency shall file with the committees of theHouse and Senate ha.iiing legislative jurisdiction over the prop-ranior activity involved 'a full written report of the circumstances and thegrounds for such action..No such action shall become effective untilthirty days have elapSed after the filing of such report.

JUDICIAL REVIEW

SEC. 90$. Any department or agency action taken _pursuant to"-section 1-002 shall be subject frs'ila it-laical review as may otherwisebe provided by law for similar action taken by such depaament oragency on other grounds. In the case of action, not otherwise subjectto judicial review, terminating or refusing to grant or to continuefinancial assistance upon a finding of failure to comply with anyrequirement imposed pursuant to section 902, any person aggrieved(including any State or political subdivision thereof and any agency.of either) may obtain judicial review of such action in accordancewith chapter 7 of title 5,:United States Code, and such action shallnot be deemed committed to unreviewable agency discretion withinthe meaning of section 701 of that title.

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PROHIBITION AGAINST DISCRIMINATION AGAINST TILE BLIND

SEC. 904. No person in the United States shall, on the ground ofblindness or severely impaired. vision, be denied admission in anycourse of study by a recipient of Federal financiaLlisSistance for anyeducation program or activity, but riethrg herein shall be construedto require any such institution to provide any special services to suchperson because of his blindness or visual impairment.

EFFECT ON OTHER LAWS

SEC. 905. Nothing in this title shall add to or detract from anyexisting authority with respect to any -program or activity underwhich Federal financial assistance is extended by way of a contract ofinsurance or guaranty.

AMENDMENTS TO OTHER LAWS

SEC. 906. (a) Sections 401 (b) , 407(a) (2), 410, and 902 of the Civil78 Stat. 246, Rights Act of .1964 (42 U.S.C. 2040c (b), 2000c-6(a) (2), 2000c-9, and266. 2000h-2) are, each amended by inserting the word "sex" after the word

"religion".(b) (1) Section 13(:n) of the Fair Labor Standards Act of 1938 (29

75 Stat. 71. U.S.C. 213(a) ) is amended by inserting after the words "the provi-77 Stat. 56 sions of section 6" the following: "(except section 6(d), in the case of29 USC 206. paragraph (1) of this subsection )".

(2) Paragraph (1) of subsection 3(r) of such Act. (29 U.S.C. 203so Stat. 831. (r) (1)) is amended by deleting "an elementary or secondary school"

and inserting in lieu thereof -a preschool, elementary or secondaryschool". .

(3) Section 3 (s) (4) of such Act (29 U.S.C. 203 (s) (4) ) is amendediby deleting "an elementary or .secondary school" and inserting in

lieu thereof "a. preschool, elementary or secondary school".

INTERPRETATION WITH RESPECT TO LIVING FACILITIES

SEC.. 907.-Notwithstand-ing the .-contrary oent.a1:-ad inthis title, nothing contained herein shall be construed to prohibit. any'educational institution receiving funds under this Act, from main-taining separate living facilities for the different sexes.

TAB H

Public Law 92-26192nd Congress, H. R. 1 746

March a4, 1972

2n 21ct86 STAT. 103

To further promote equal employment opportunities for American workers.

Be it enacted by the Senate and Howse of Representative.? of theUnited States of America in Congress assembled, That this Act maybe cited as the "Equal Employment Opportunity Act of 1972".

SEC. 2. Section 701 of the Civil Rights Act of 1964 (78 Stat. 253; 42U.S.C. 2000e) is amended as follows:

(1), In subsection (a) insert "governments, governmental agencies,political subdivisions," after the word "indiviauals".

(2) Subsection (b) is amended to read as follows:"(b) The term 'employer' means a person engaged in an industry

affecting commerce who has fifteen or more employees for each work-ing clay in each of twenty or more calendar weeks in the current orpreceding calendar year, and any agent of such a person, but suchterm does not include (1) the United States, a corporation whollyowned by the Government of the United States, an Indian tribe, orany department or agency of the District of Columbia subject bystatute to procedures of the competitive service (as defined in section2102 of talc 5 of the United States Code), or (2) a bona fide privatemembership club (other than a labor. organization) which is exemptfrom taxation-under section 501(c). of the Internal Revenue Code of1954, except that during the first year after the date of enactment ofthe Equal EmployMent Opportunity Act of 1972; persons havingfewer than twenty-five employees (and their agents) shall not beconsidered employers."

(3) In subsection, (c) beginning with the semicolon strike outthrough the word "assistance ".

(4) In subsection (e) strike out between "(A)" and "and such labororganization ", and insert in lieu thereof "twenty-five or more duringthe first year after the date of enactment of the Equal EmploymentOpportunity Act of 1972, or (B) fifteen or more thereafter,".

.14-In-subsection f ) > insert.befo re tha pexiQd.a.comrna.a.nd the 441.lowing : "except that the term 'employee' shall not include any personelected to public office in any State or political subdiVision of any Stateby the qualified voters thereof, or any person chosen by such officer tobe on such officer's personal staff, or an appointee on the policy makinglevel or an immediate adviser with respect to the exercise of the con-stitutional or legal powers of the office. The exemption set forth inthe preceding sentence shall not include employees subject to the civilservice laws of .a State government, governmental agency or politica.;subdivision."

(6) At the end of subsection (h) insert before the period a commaand the following: "and further includes any governmental industry,business or activity".

(7) After subsection (i) insert' the following new subsection (j) :"(j) The term 'religion' includes all aspects .of religious observance.

and practice, as well as belief, unless an employer demonstrates that heis unable to reasonably accommodate to an employee's or prospectiveemployee's religiouS observance or practice without undue hardship onthe conduct of the employer's business."

SEC.. 3. Section. 702 of the Civil Rights Act of 1964 (78 Stat. 255;42 U.S.C. 2000e-1) is amended to read as follows:

Equal EmploymentOpportunity Actof 1972.

Definitions.

80 Stat. 662.

80 Stat. 408.

68A Stat. 163.26 USC 501.

"Religion."

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Pub. Law 92-261 March 24, 197286 STAT. 104

"txplmi,ru)N.

"SEc. 702. This tit le shall not apply to an employer with respect tothe employment of alien:: outside any State, or to :t religious corpo-ration, association, educational 'institution, or society with respect to

ithe employment of ndividuals ofa part iculiic religion to perform workconnected with the carrying on by such corporatmn, association, edu-cational institution, or society of its actirities.."

Enforcement. Sac.- 4.(a) Subsections (a) through (g) of section 70( of the CivilRights Ad, of 1964 (78 Stat. 259; -h C.S.C. 2000e-5(a)-(g)) areamended to read as follows:

"Sm. 706. (a) The Commission is empowerec, as hereinafter pro-vided, to.prevent any person from engaging in

pro-an unlawful employ-42 USC 2000e-2, ment practice as set forth in section .703 or 701 of this title.2000e-3. "(b). 1V11011QVCr a charge is filed by or on behalf of a person claimingCharges. to be aggrieved, or by. a moldier of the.Commission, alleging that an

employer, employment agency, labor organi ti on, .01. joint labor--management committee controlling apprenticeship or other trainingor retraining, including on- the -job training programs, has engaged inan unlawful einployment.piiiietice, the Commission shall serve a. noticeof the charge (including the date, .place and circumstances of thealleged unlawful. employment practice) on such employer, employ-.merit agency, labor organization, or joint labo -management com-mittee (hereinafter referred to as the `respondent.') within ten. clays,and shall make an inveStigation, thereof. Charges shall- be jit Writingunder oath or affirmation' and shall contain such informtition and bein such form as the Contiiiii-S-Si47requi res. Charges shaft'uot 'be madepublic by the -Commifiston.--If the Cot:mission. deterrhines after suchmrestigation that there is not reasonable cause to. believe- that thecharge is trine, it shall-- dismiss the charm: and proMptly notify theperson claiming to be aggrieved and the -respondent of its action;In determining whether reasonable cause exists; the CommiSsion shallaccord substantial- weight:ItO .finiilliiidings and orders made by Stateor local authorities in -proceedings .0binmenced under .State or locallaw pursuant to the requirements of..subsections (c) and (d) If theCommission determinesaftcr :Such investigation -that,thernis.,Leaso:1-.

"eaiik- to -believe' that7the charge 'is -true, the Commission shall-endeavor to eliminate any...spell alleged unlawful employment practiceby inforMaI methods of conference, conciliation, and porsnasion.Nothing said or clone during and as a part of such informal endeavorsmay be made public' by. the Commission, its officers-br employees, orused as evidence in a subseque»t proceeding without the written con-Penalty. sent of the personS-concerned. Any person who makes pub] ieinformationin-violatien of this. subsection shall be finednot more than $1,000or imprisoned for not more than one year, or both. The Commissionshall make its determination on reasonable cause as proMptly as-pes-Sible-and,-so far as practicable; not-latert-han one-hundred and twentyclayS.frOm the filing Of the charge -pr,,where applicable under subsec-tion- (c) .Or (d), from the date.npon which the.Commissio isinutlior-ized to take action with respect to the charge.'state enforce- "(c) In. the case of an alleged unlawful employment practicemeat Proceed-. occurring-in a-State, or Political-subdivision of State,-which has. aings, deferral State or local law, prohibiting the unlawftil employment practiceperiod. alleged anclestablishing or authorizing a State Ideal -authority togrant or seek relief from such .:practice to institute criminal -pro-ceedings with respect thereto upon receiving notice thereof, no chargemay be filed under subsection (a) by the person aggrieved' before theexpiration of sixty clays after proceedings have been commenced underthe State. or loCal slaw, unless such proceedings have been,earlier termi-

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March 24, 1972 Pub. Law 92-26185 STAT. 105

nated, provided that such sixty-day period shall be extended to oneliundred and twenty days during the first year. After the effective 'dateof such State or local law. If any requirement for the commencementof such proceedings is imposed by a State or local authority otherthan a requirement of the filing of a written and signed statement ofthe facts upon which the proceeding is based, the proceeding .be.deemed to have been commenced for the purposes Of this subsection atthe tune such statement is sent by registered mail to the. appropriateState or local authority.

L(d) In the case of any charge filed by member of the Commissionalleging an unlaWful employment practice occurring in a State orpolitical subdivision of a State which has a State or local law pro-hibiting the practice alleged and establishing. Or authorizing a Stateor local authority to grant or seek relief from such practice or to insti-tute criminal proceedings with respect thereto upon receiving noticethereof, the. Commission shall, before taking any action with respectto :such charge, notify the appropriate State or local offieials.and,.uponrequest, afford .them a reasonable time,. but not less than sixty clays(providedthat such sixty -clay period shall be extended to one hundredand twenty clays during, the first year after the effective day of suchState or local law), unless a shorter period is requested, to act undersuch State or lOcal law-to remedy the practice alleged.

"(e) A charge. under this section shall be filed. within one. hundred Filing.

and .eighty'..days after the alleged unlawful. employment. practiceoccurred and notice of the charge :(including the date, place and cir-cumstances of the alleged unlawful employment practice) shall heserved upon the person against. whom such charge is Made within-tenclays thereaftei. except. that in a case of an unlawful employment prac-tice with respect to which the personaggrievedhas initially institutedproceedings with a State or local agency with authority to grant -orseek relief .from such. practice or to institute criminal proccedincrswith respect, thereto imon-receivingnotice thereofSnch charge. shallbe filed by or on behalf of the' person aggrieved within three hundredclays after the alleged unlawful employment practice o6curred, orwithin thirty days after receiving nonce that the State or local -.agencyhas terminated the proceedings under- the'State or .local

- wer earl -414-1.a. cop;- ..such-ch-ii i!ge:--,shall-be filed by he Com-mission with the State or local .agency. .

"(f) (1) If within thirty days'after a charge is filed with the Com- civil action.

mission or within thirty days after- expiration:Of any .period of .

reference ander subsection (c)- (d),.the.Commission has been unableto secure from the-respondent conciliation agreement acceptable tothe CommissiOn, the Commission may bring 'a civil action against anyrespondent not .a government, governmental agency, or political sub-division named in the chare. In the case of a respondent which is agoYernment, governincv.iii; agency, or political ..subdivision. if theCommission has been to secure 'from the respondent a concilia-tion agreement acceptable to the CoMmission, the Commission shalltake no further action-and shall refer the case to the Attorney Gen-.eral Who may bring a civil action against such respondent in the.appropriate rnited States district court. The person or personsaggrieved shall -haye the right to intervene in it civil action- broUghtby the CominisSion or the -Attorney General in , a . case invelving aigovernment, governinental agency; or political subdivision. If a Chargefiled with theTCOmmission pursuant.to subsection: (b) is dismissed bythe COmmission, or if within one hundred and eighty days from thefiling of such charge or the expiration of any period of reference undersubsection (c) or (d), whichever is later, the Commission has not fileda-civil action under this section or the Attorney General has not filed

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Pub. Law 9 2- 2 ol March 24, 197286 ST ?T. 106

28 USC app.

Jurisdiction.

62 Stat. 937;74 Stat. 912;76A Stat. 699,

Judge, designa-tion.

a civil action in a ease involving a government, governmental agency,or political subdivision, or the Commission has not entered into a con-ciliation agreement, to which the person aggrieved is a party, theCommission, or the Attorney Gene-cal in a case involving a govern-ment, governmental agency, or political subdivision, shall so notifythe person aggrieved and within ninety days after the, giving of suchnotice a civil action may be brought, against the respondent named inthe charge (A) by the person claur,int- to be aggrieved or (B) if suchcharge, was filed by a member of the Commission, by any person whomthe charge alleges was aggrieved by the alleged unlawful employmentpractice. Upon application by the complainant and in such circum-stances as the court may deem just, the. court may appoint an attorneyfor such complainant, and may authorize the commencement of theaction without the payment of fees, costs, or security. Upon timelyapplication, the court may, in its di§cretion, permit the Commission,or the Attorney General in a case involving a gove,rinnent, govern-mental agency, or political snbdi.vision; to intervene in such civilaction upon eerti fl,cat ou that the case is of general public importance.nce.Upon request, the court-may, in its discretion, stay further proceedingsfor not more than sixty days pending the termination of State or localproceedings described in subsections (c) or (d) of this section orfurther efforts of the COmmission to obtain voluntary compliance:

"(2) Whenever a charge is filed with the Commission and the Com-mission concludes on the basis of a preliminary investigation thatprompt judicial action is necessary to carry out the purposes of thisAct, the Commission,.or the Attorney General in a case involving agovernment, governmental agency, or political subdivision, may bringan action for appropriate temporary: or preliminary relief pendingfinal disposition of such charge. Any temporary restraining order orother order granting preliminary or temporary relief shall be issued inaccordance with rule 65 of the Federal Rules of Civil Procedure. Itshall be the duty of a court having jurisdiction over poceedings underthis section to assign cases for hearing at the earliest practicable dateand to cause such cases to be in every way expedited.

"(3) Each United States district Court and each United States courtof ,a plaCe subject to the jurisdiction of the United States shall havejurisdiction of actions brought under this title. Such an action may bebrought in any judicial district in the State in which the unlawfulemployment practice is alleged to have been committed, in the judicialdistrict in, winch the employment records relevant to such practice aremaintained and administered; or in the judicial :district in which theaggrieved person would have worked: but for the alleged Unlawfulemployment practice, but if the respondent is not found within anysuch district, such an:action may be brought within the judicial dis-trict in which the respondent has his principal office. For purposes ofsections 1404 and 1406 of title 28 of the United Stat es Code, the judi-cial district in which the respondent has his principal office shall in allcases be considered a district in which the action might have beenbrought.

"(4) It shall be the duty of the chief judge of the district, (or in hisjabsence, the acting chief judge) in: which the case is pending imme

diately to designate a judge in such district to hear and determinethe case. Iuc the event that no judge in the district is available to hearand determine the case, the chief judge of the district, or the actingchief judge; as the case may be, shall Certify this fact to the chief judgeof the circuit (or in his absence, the acting chief judge) who shall thendesignate a district or circuit judge of the circuit to hear and determinethe case.

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March 24, 1972 Pub. Law 92-26166 STAT. 107

"(5) It shall he Cite duty of the judge designated pnrsuant to thissubsection to assign the ease for hearin , at the earliest practicable datemid to .cause the case to be m every way expedited. Ii such judge hasnot scheduled the ease for trial %ithin one hundred and twenty daysa fter issue has been joined, that judge may aPpoint a master pursuantto rule 53 of the Federal Rules of Civil Procedure. 28 USC app.

"(g) If i;.he court finds that the, respondent. has intentionally Relief.engaged in or. is intentionally engaging in an unto w fid employmentpractice charged in the complaint, the. mot may enjoin the respondentfrom engaging in such unlawful employment practice. and order suchaffirmative action as 'nay appropriate, which may include, lint is notlimited to, reinstatcfnent or hiring of 61111)1°j: cos, with or .Without hackpay (payable bythe employer, employment agency, or labor organiza-tion, as the case may lie, responsible for the unlawful employmentpractice), or any other equitable relief as the court deemS appropriate.Back pay liability shall not accrue from a date more than two years

115actkAri.3;y.prior to the filing of a charge. with the Commission. 'Interim earnings iaor amount.searnahlc with reasonal rle, diligence by the person Or personsdiscriminated against shall operate to reduce the hack pay otherwiseallowable. No order of the court, shall require the admission or rein-statement of an individual as a member of a. union, or the hiring,reinsitttement, or-promotion of alt individual as an employee, or thepayment to him of any back. pay, if such individual was rernsedadmission; snspended, or expelled, or was refused employment Oradancenient or -was suspended- or discharged, for any reason. otherthan discriminationon ;lemma of race, color, religion, sex, or nationalorigin or in violation of section 70,1(a)." . 78 Stat. 257.

4 2 USby C 2000e-3.(b) (.1) Subsection (i) .of ofsection 706 osuch Act is amendbystriking out "subsection (e) 7. and inserting ill, ieu thereof "this 78 Stat. 259.

42 USC 2000e -5.section".(2) -Subsection (j) of such section is amended by striking out

"subsection .(e)" and inserting in lieu thereof "this section".Six. 5. SectiOn 707-of the Civil Rights Act of 10(i4 is amended by 42 USC 2000e -G.

'adding- at the end theredf the following mice- subsection:-" (c) 'Effective two years after the date of enactment of the Equal Transfer of

Employment. Opportunity Aet.of).972, the functiOns of the Attorney rup4tions.-General under this section shall; be transferred to the 'Commission,together with such personnel, property, records, and unexpended-bal-

, ances of appropriations, allocations, and other funds employed, used,held, a vailable,.or to be made available in connection with such func-tions. unless the President submits, and neither House. of Congressvetoes, a, reorganization plan pursuant to chapter. 0 of title 5, UnitedStates Code, inconsistent, with the provisions of tins Subsection. The 80 Stat. 394;CMoM nISSiOn shall carry out such "functions in accordance with sub- 85 Stat. 574.sections (d) and (e) of this section. 5 USC 901.

"(d) Upon thetransfer of functions provided fbr in subsection (c)of this section, in' all suits commenced pal: inifit to this section prior tothe date of-such' transfer, prOccedings shall continue without. abate-ment, . all 'coUrt orders and decrees shall remain in effect, and theCommission shall be substituted as a party for the United States ofAmeriea, the Attorney General, or the ACting Attorney General, asappropriate....

"(e). Subsequent to the date of enactment of the Equal Employment 4uho-rity,Opportunity ..Act of 1972, the Commission shall ha'..e authority toinvestigate and act, on a charge of a pattern or practice of discrimina-tion, whether filed by or on behalf of a person_ cl a imini,g to be aggrievedor by a member of the Commission.-All such actions shall be conductedin accordance with the procedures set forth in section 706 of this Act." Ante, p. 104.

Sc. 6. Subsections (b), (c), and (d) of .Section 709 of the Civil

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Pub. Law 92-261 March 24, 197286 STAT. 108

Rights Act of 1964 (78 Stat. 63; 42 15:S.C. 2000e-8 (b)-(d) ) areamended to read as follows :state and local "(b) The Commission may cooperate with State and local agenciesagencies, Charged with the administration of State fair employment practicescooperation. laws and, with the consent of such agencies, may, Thr the purpose ofcarrying out its functions and duties under this title and within thelimitation of funds appropriated specifically for such purpOse engagein and contribute to the cost of research and other projects of mutualinterest undertaken by such agencies, and utilize the services of suchagencies and their employees, and, notwithstanding any othersion of law, pay by advance or reimbursement such agencies and theiremployees for services rendered to assist the Commission in carryingout this title: In furtherance of such cooperative efforts, the CoMmis-sion may enter into written agreements with such State or localagenCies and such agreements may include provisions under Which theCommission shall refrain from processing a charge in any cases or classof cases specified in such agreements or under which the Commissionshall relieve any person or class of persons in such State or localityfrom requirements imposed under this section. The Commission shallrescind any such agreement whenever it determines that the agree-ment no longer serves the interest of effective enforcement of thistitle.Recerdkeepw "(e) Every employer employment agency, and labor organiza-ing; reports. tion subject. to this title shall (1) make and keep such records relevantto the determinations of whether unlawful employment practices havebeen or are being committed, (2) preserve such records for suchperiods, and (3) make such reports therefrom as the Commission shallprescribe by regulation or order; after public hearing, as reasonable,necessary, or appropriate for the enforcement of this title or the regu-lations or orders thereunder. The Commission shall, by regulation,require each employer, labor organization, and joint labor-managementcommittee subject to this title Which controls au apprenticeship orother training program to maintain such records as are reasonablynecessary to carry out the purposes of this title, including, but notlimited to, liSt of applicants who wish to participate in such pro-gram, including the chronological order in which applications werereceiVed:, and to furnish. to the Commission upon :request, a detaileddescription of the manner in which perSons are selected to participatein the apprenticeship or other training program. Any employer,

employment agency, labor organization or joint :laborLmanagementcommittee which believes that the application to it of any regulation ororder issued under this section would result in undue hardship mayapply to the Commission for an exemption from the application ofsuch regulation or order,i and, if such application for an exemption isdenied, bring a civil action in the United States district court for thedistrict where such recordS are kept. If the CommisSion or the court,as the case may be, finds that the application of the regulation or orderto the employer, employment agency, or labor organization in ques-tion would impose an undue hardship, the CoMmission or the court, asthe case may be, may grant appropriate relief. If any person requiredto comply with the provisions of this subsection fails or refusesto do so, the United States district court for the district in whichsuch person is found, resides, or transacts bilsiness, shall, upon applica-tion of the ComMission, or the Attorney General in a case involvinga government, governmental agency or political subdivision, havejurisdiction to issue to such person an order requiring him to comply.

Stat.; and "(d) In prescribing requirements pursuant to subsection (e) of thisFederal section, the Commission shall consult with other interested State andagencies, Federal agencies and shall endeavor to coordinate its requirementscoordination.

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March 24, 1972 Pub. Law 9 2- 2 6 1

with those adopted by such agencies. The Commission shallupon request and without cost to any State. or local 'agency chargedwith the administration of a 'fair employment practice law informa-tion obtained pursuant to subsection (c) of this section from anyemployer, employment agency, labor organiation, or joint labor-man-agement committee subject to the jurisdiction of such agency. Suchinformation shall be furnished on condition that it not, be made pub-lic by the recipient agency prior to the institution of a proceedingunder State or local law involving such information. If, this conditionis violated by a recipient agency, the Commission may decline tohonor subsequent requests pursuant to this subsection."

SEC. 7. Section 71)) of the Civil Rights Act of 1964 (7S Stat. 264;U.S.C. 2000e-9) is amended to read as follows:

"I N VESTIGATORY POWERS

86 STAT. 109Information,availability.

"SEC. 710.- For the purpose of all hearings and investigations con-ducted by the Commission or its duly 'authorized agents or agencies,section 11 of the National. Labor 'Relations Act (49 Stat. 455; 29U.S.C. 161) shall apply." 61 Stat. 150;

SEC. S. (a) Section 703(a) (2) of the Civil Rights Act of 1961 84 Stat. 930.(78 Stat. 255; 42 U.S.C. 2000e-2 (a) (2)) is amended by insertingthe words "or applicants for employment" after the words "hisemployees".

(b) Section 703 (c) (2) of such Act is amended by insertin,', the words."or applicants for membership" after the word "membership-.

(c) ( 1 ) Section'704 (a) of such Act is amended,b}: inserting a COMM 42 US C 2000e -3.and the following: "or joint labor - management committee controlliingapprenticeship or other training el retraining, including on- the -job

prograMs," after "employment agency'.(2) Section 704 ( b) of such Act is amended by (A) striking out "or

employment agency." and inserting in lieu thereof "employment agency,or joint labor - management committee controlling apprenticeship orother training or retraining, including on-the-job training programs.",and (B) inserting a comma and the words "or relating to admission to,or employment in any progyi established to provide apprenticeshipor other training by such a point, labor-management committee" beforethe word "indicating ".

(d). Section 705(a) of- the Civil Rights Act .of 1964 (78 Stat. 258; Equal anploy-42 2000e-4 (a)) is amended to .read as follows; ment opportunity

"SEC. 705. -(a) There is hereby created a CommiSSion to be known Commission.as the Equal Employment Opportunity Commission; which shall becomposed of fi ye members, not more than tilree. of whom shall. bemembers of. the same politiCat party. Members of the. Commission Term.shall be appointed by the President by and with the advice and comet itof the Senate for a term. of .five-years. -Any individual choSen to fill avacancy shall be ..appointed only for.the unekpired term of the mem-ber whom he shall succeed, and all members of the 'Commission- shallcontinue- to serve until' their successors are appointed and qualified,except that no such member-Of the Commission- shall continue to serve(1) for morethan sixty days when.the'COngress is. in session unlessa nomination to fill such vacancy shall .have been. submitted to theSenate, or (2) after the adjournment sine die of the session of theSenate in which such nomination was submitted. The President shalldesignate one. member to serve as Chairthan of the Commission; andone member to serve as..Vice Chairman. The-Chairthan shall be respon-sible on behalf of . the. CommisSion -for. the administrative operations

.of the Commission, and; except as provided in subsection' (b), shallappoint, in accordance with the.-provisions of title 5, United States

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Pub. Law 92 -261 March 24, 197286 STAT. 310

5 7,SC 101

L-L

5 USC 5101,5331.5 USC 5332note.80 Stat. 415,425, 473, 528.78 Stat. 258.42 USC 2000e-4.

General Counsel,appointment.

Ante,

Ante)P.

P.

Repeal.

104.

107.

az. USC 2000e-

13.

62. Stat.

65 Stat.

80 Stat.84 Stat.85 Stat.

Repeal.

84 Stat.

Code, governing appointments in the competitive service, such officers,agents, attorneys, hearing ,examiners, and employees as he deemsnecessary to assist it in the performance of its functions and to fix theircompensation in accordance with the provisions of chapter 51 andsubchapter III of chapter. 53 of title 5, United States Code, relatingto classification and . General Schedule pay rates: Provided, Thatassignment, removal, and compensation of hearing examiners shall bein accordance with sectionS.3105, 3344, 5362, and 7521 of title 5, UnitedStates Code."

(e) (1) Section 705 of such Act is 'amended by inserting after sub-section ..(a) . the following new subsection (b)"(b) (1) There shall be a General Counsel of the Commission

appointed by.the President, by and with the advice and consent of theSenate, for term of .four years. The General ConnSel shall haveresponsibilit nthisfor the conduct of litigation as provided in sections 700

and 707 of tfiiS title. The General Counsel shall have such other dutiesas the Commission may prescribe. or as may be provided by law andshall concur with the Chairman of the Commission on the appoint-ment and supervision of regional attorneys. The General Counsel oftho Commission_ on the effeetive dateof this Act shall continue insuch position perform the functions specified in this subsectionuntil a successor is appointed and qualified.

"(2) Attorneys appointed under this section may; at the directionof the CommiSsion, appear for and .represent.the Commission in anycase in court, provided that the Attorney General shall ..conduct alllitigation to Which the Commission.iS a party in the Supreme Courtpursuant' to this title."

.

(2). ' 3111)s(!!ction (eland (h) of such .section .705 .;ire repealed.(3) Subsections (b), (c), (d), (i), and (J) -of such section 705, and

all references thereto, are redesignated as subsections (c), (d), (o),(h), and ( i ) respectively. .(f) Section 705 (g).(0) of such Act, is amended to read as follows:"(6) to intervene in -a civil action brought section 700 by an

aggrieved Part? against a.:respondent other than a government, gov-ernmental agency or political subdivision.".

(g) Section 714. of such Act is amended to -,ad as follows:

"Font:mix RESISTING THE commissioN on rrs incrnmsENTATivEs

"SEc. 714. The provisions of sections 111 and 1114, title 18, United688; States Code, shall apply to T OfliCers, agents, and employees of the721. Commission inthe performance of their offiCial duties. Notwithstand-

ing the provisionS of sections 111 and 1114 of title 1S, United StatesCode, whoever 'in violation of the provisions of section 1114 of suchtitle kills-a perSon while,engaged in or on account of the performanceof his official functions under this Act shall be punished by imprison-anent for any term of years or ,for life."

460; SEC. 9. (a) Section 5314 of title 5 of the United States Code is1604; amended by adding at the end thereof thofollowipg.neW clause:625."(58) Chairman, Equal Employment Opportunity, 'Commission."(b) Clause (72) of section 5315 of such title 1S.aiended to read asfollowS:

"(72) MemberS, Equal Eniployinent Opportunity Commission(1)."(c) Clause (111) of section 5316 of such title is repealed.

968. (d) Section 5316 of such title is amended by adding at the endthereof the following new clause

" (131).General Counsel of the Equal Employment OpportunityCommission."

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March 24, 1972 Pub. Law 92.261

SEC. 10. Section 715 of the Civil Rights Act of 1964 is amended toread as follows:

"EQUAL EMPLOYMENT OPPORTUNITY COORDINATING COUNCIL

"SEC. 715. There shall be established an Equal Employment Oppor-tunity Coordinating Council (hereinafter referred to in this sectionas the Council) composed of I he Secretary. of Labor, the Chairman ofthe Equal Employment Opportunity Commission, the Attorney Gen-eral, the Chairman of the United States Civil Ser,..ce Commission, andtic Chairman of the United States Civil Right:.`; CommissiOn, or theirrespective delegates. The Council shall have the responsibility fordeveloping and implementing agreements, policies and practicesdesigned to maximize effort, promote efficiency, and eliminate conflict,coMpetit ion., duplication and inconsistency among the operations, func-tions and jurisdictions of the various departments, agencies andbranches of the Federal Government responsible for the iimplementa;tion and enforcement of equal employment opportunity legislation,orders, and policies. On or before July 1 of each year, the Council shalltransmit to the President and to the Congress a report, of its activities,together with such recommendations for legislative or administrativechanges as it concludeS are desirable to further promote the pnrposesof this section."

SEC. 11. Title VII of the Civil Rights Act. of 1964 (78 Stat. 253; 42U.S.C. 2000e et seq.) is amended by adding at the end thereof thefollowing new section

"'NONDISCRIMINATION IN FEDE.R.U. GOVERNMENT EMPLOYMENT

"SEC.717. (a) All personnel actions affecting employees or appli-cants for employment (except with regard to aliens employed outsicicthe limits of the United States) in military departments as defined insection 102 of title 5, United States Code, in executive agencies (otherthan the General Accounting Office) as defined in section 105 of title 5.United States Code (including employees and applicants for. employ-ment who are paid from nonappropriated funds.), in the United StatesPostal Serviceand the Postal _hate Commission, in those units of theGovernment of the District of Columbia having positions in the com-petitive service, and in those units of the legislative and judicialbranches of the Federal Government having positions in the competi-tive service, and in the Library of Congress shall be made free fromany discrimination based on race, color, religion, sex, or nationalOrigin.

"(b) Except as otherwise provided in this subse,ction, the Civil Serv-ice Commission shall have authority to enforce the provisions of sub-section (a) through appropriath remedies, including reinstatementor hiring of employeeS with or without back pay, as will effectuate thepolicies of this section,:and shall issue such rules, regulations, ordersand instructions as it deems necessary and appropriate Co carry outits responsibilities under this section. The. Civil 'Service Commissionshall :

"(1) be responsible for the annual:review and approval of anational and regional equal employment opportunity plan whicheach department and agency and each appropriate unit referred toin subsection (a) of this section shall submit in order to maintainan affirmative program of equal employment opportunity for allsuch employees and applicants for employment;

86 STAT. 11178 Stat. 265.42 USC 2000e-14note.

Relic rt toPresident andCongress.

Ante, p. 103.

80 Stat. 378.

Enforcement;rules andregulations.

National andregional plan,annual review.

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Pub. Law 92 ..261 March 24, 197286 STAT. 112

Progress reports, "(2) be responsible for the review and evaluation of the opera-publication. tion of all agency equal employment, opportnnity prograMs, peri-odicallyobtaming and publishing (on at least. a semiannual basis)progress reports from each such department, agency, or unit ;

"(3) consult with and solicit the recommendationsof interested- iiidia ideals, groups, and organix.atimis relating to equal employ-ment opportunity.-head of each such department, agency, or min sliall comply with

such rules, regulations,orders, and instructions which shall include aprovision that, an employee or applicant. for employment shall benotified of any final action taken on airy coniplaint of discriminationtiled by him thereunder,- The plan suhmitted by each department,agency, and unit shall include; but not be limited to

"(1) provision for the establishment of training. and education... programs designed to provide -a maximum opportunity' foremployees to advance so as to perform at their highest potential;and

"(2) a description of the qualifications in terms of training andexperience relating to equal employment opportunity for theprincipal and operating officials of each such departinent, agency,or unit responsible for carrying out. the equal empleymentoppor-timity program and of the allocation of personnel and resourcesproposed by such department, agency, or unit to carry.. out its-equal employment- opportunity program.

Librarian of With. respect.. to employment in the Library of Congress, authoritiesCongress, granted in this subsection:to the Civil Service Commission- shall beauthority, exercised by the Librarian of Congress.."(c) Within thirty clays .of receipt of notice of final action taken bydepartment, agency, or'Unit referred to in subsection 717(a), or by-the Civil Service Commission upon an appeal from a decision or order-of such departMent, agency,. orunit on a. complaint of discrimination

based on race, color, religion, sex,or national origin, brought. purSnant42 USC 2000e to -snbsection (a) of this section, Executive. Order 11478 or any sue-note. cecding Executive orders, or after one hundred and eighty days from

the- filing of the initial charge With the department, agency; or unitor..with .the Service ColinnisSion-oWappeal. from decision or-order of such department; agency; or unit until such time as final;action may be taken by a department, agency, or Unit, an employee orappli,int for employment,' if aggrieved by the .finaldispoSition of hiscomplaint, or by the .failure to -take final action on his 'complaint, mayAnte, p. 104. file a civil action as provided in section 706, in which- civil action thehead of the department, agency, or unit, as appropriate, shall be thedefendant.

78 Stat. 259. "(d) The provisions of section 706.(f) through- (k) as applicable,42 USC 2000e- shall govern civil actions brought hereunder.5 "(e) Nothing contained in. this -Act shall relieve any Governmentagency or. official of its or his primary, responsibility. to assure non-USC prec. discrimination in employment as i.equirecl .by the Constitution andtitle 1. statutes or of its or his responsibilities under. Executive. Order 11478relating to equal employment opportniiity in the'Federal Government."so stat. 453; SEC. 12.. Section 5108(c) of title 5; United.StateS Code, is amended84 Stat. 1955. 1131.--.

.

.

(1) striking out-the word "and' at the end of paragraph (9)-(2) striking out the period at the end of paragraph (10) andinserting in ]ieu thereof a-semicolon and the word "and". and(3). by adding immediately 'after paragraph (10) the.last timeit appears therein in the following new paragraph :

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Ma rch 24, 1972 Pub. Law 92-26186 STAT. 113

"(11) the Chairman of the Equal Employment Opportunity-.Commission,.subject to. the standards and procedures prescribedby this chapter, may place an additional ten positions in the.EqualEmployment Opportunity Commission in GS-16, GS-17, andGS-18 for the purposes of carrying out tidal VII. of the CivilRights Act of 19642.

SEC. 13. Title VII of the Civil Rights Act of 1964 (78 Stat. 253;42 U.S.C. 2000e et seq.) is further amended by adding at the end Ante,

thereof the following new section :

"SPECIAL PROVISION WITH RESPECT TO DEN RMTNATION, ANDSUSPENSION OF GOVERNMENT CU.., i atACTS

"Six. 718. No Government contract, or portion thereof, with anyemployer, shall be denied, withheld, terminated, or suspended, by anyagency or officer of the United States under any equal employmentopportunity law or order, where such employer has an affirmativeaction plan which has previously been accepted by th, PCovernmentfor the same facility within the past twelve months , =without firstaccording such employer ,full hearing and adjudication under the-provisions of title 5, United States Code, section 554, and the followingpertinent sections: Provided, That if such employer has deviatedsubstantially from such previously agreed to affirmative action plan,this section shall not apply: Provided further, That for the purposesof this section an affirmative action plan shall he deemed to have beenaccepted by the Go.,,rnment at the time the appropriate complianceagency has accepted such plan unless_ within forty-five days thereafterthe Office of Federal Contract COMpliance has disapproved suchplan."

SEC. 14. The amendments made by this Act to section 706 of theCivil Rights Act of 1964 shall be applicable with respect to chargespending with the Commission on the date of enactment of this Actand all charges filed thereafter.

Approved March 24, 1972,

LEGISLATIVE HISTORY:

HOUSE REPORTS: No. 92-238 (Comm. on Education and. Labor) andNo. 92-899 (Comm. of Conference).

SENATE REPORTS: No. 92-415 accompanying S. 2515 (Comm. on Lain,and Public Welfare) and. No. 92-416 (Comm. on

Labor and Public Welfare) and No. 92-681 (Comm.of Conference).

CONGRESSIONAL RECORD:Vol. 117 (1971): Sept, 15,16, considered and passed House.

Vol. 118 (1972): Jan. 19-21, 24-28, 31, Feb. 1-4, 7-9,

14-18, 21, 2k, considered and passedSenate, amended, in lieu of S. 2515.Mi:r. 6, Senate agreed to conference report.

Mar. 8, House agreed to conference report.WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vul. 8,-No. 13:

Mar. 25, Presidential statement.

80 Stat. 384.

Effective date.

Ante, p. 104.

TAB I

Office for Civil Rights Compliance Procedures

Section 206 of the Executive Order authorizes the Secretary ofLabor to investigate the employment practices of any Government con-tractor to determine whether or not it IF.; in compliance with the non-discrimination and affirmative action rovisions contained therein. TheSecretary of Labor may also receive and investigate complaints fromemployees or prospective employees which allege discrimination in vio-lation of the Executive Order. To implement these provisions, theSecretary of 'Labor has directed that Government agencies with complianceresponsibility for specific types of Federal contractors instituteprograms for conducting regular compliance reviews, and institute aprompt investigation of each complaint filed with it or referred to it.

The Office of Civil Rights within the Department of Health,Education, and.Welfare has been assigned respOnsibility by the Secretaryof Labor for conducting reviews and investigations of institutions ofhigher educatiOn, regardless of the agency which awards the contract.Reviews and investigations are undertaken by the ten Regional Officesfor Civil Rights, which have the responsibility for determining in thefirst instance whether a contractor is incompliance, and of recommendingpossible enforcement action to the Director of the Office for CivilRights in Washington.

Section 211 of the Executive Order provides that the Secretary ofLabor may direct contracting agencies' not to enter into contracts unlessthe prospective contractor has satisfactorily complied with the provisionsof the Executive Order,00r.has Submitted a prograth for' compliance ac-ceptable to the Secretary of Labor. To implement 'this directive, theSecretary of Labor has provided that no contract of $1 million or moreshall be awarded unless a pre-award clearance has been conducted by thecompliance agency at least 12 months prior to the award, and unless thatreview has found the prospective contractor to be in compliance or ableto fomplY as the result of the submission of an acceptable affirmativeaction plan Government contracting agencies may also be separatelynotified,by the Secretary, of Labor thata contractor or protpective con-tractor is unable tOcoMply with the-equal eMplOyment opportUnity clausefor the .

purpose of all future awards or extensions or renewals of exist-ing contracts.

Types of Reviews.:

There are ,a variety of circumstances which may prompt the RegionalOffice for Civil Rights to,SchedUlea:review or InvestigatiOn of theemployment practices':Of a college or'univerSity.

1. Pre -award reviews:- When any agency of the Federal. Governmentidentifies an institution of higher education as the prospective re7cipient of *contract Of::$1 the'OfficOr Civil Rights'

p j ingareview Ofthe,inatitUtiWO:CoMplianceis reestatus. The requirement: applies the case:Of:amodification of anexisting contract when the-..;!4mOuneofadditional funds is $1 million ormore, as well as to tileeXtelision of enexistingontract or award of a,

neW-cOntraCt'inthia amoUnt.

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2. Reviews directed by Office of Federal Contract Compliance:The Director, Office of Federal Contract Compliance, Department ofLabor, may direct the Office for Civil Rights to conduct a compliancereview. For example, a specific review may he requested as a part ofa coordinated government-wide review of all contractors a specificgeographical area, or may be based on the receipt by the Director ofinformation from public or private sources indtcat4ng thaf a specificproblem of discrimination may exist within an institution's workforce.

3. Complaint investigations: Until the summer of 1972, theOffice for Civil Rights had been responsibli! for investigating com-plaints from professional employues against an institution receiveddirectly by the Office for Civil Rights, or referred to it by theDirector, Office of Federal Contract Compliance. The U.S. Equal Em-ployment Opportunity Commission, with its district offices throughoutthe nation, now has this responsibility. (See Guidelines, p. 14).

Institutions of higher education are subject to the provisionsof Title VII of the Civil Rights Act of 1964, which prohibits dis-crimination in employment whether or not the employer receives Federalfinancial assistance. The Equal Employment Opportunity Commission isresponsible for enforcing Title VII. The Office for Civil Rightscontinues to investigate complaints seeking relief for an affectedclass as well as general allegations of patterns of discrimination atan institution. Such class complaints or allegations may be factorsin determining which institutions will be scheduled for review.

4. Regular compliance reviews: Reviews are also undertaken aspart of a systematic program of the Office for Civil Rights to examinethe employment practices of contractors for which it is assignedrsponsibility. Most of these reviews are routinely scheduled, althoughit should be noted that they may be given a highar priority vs a resultof information received from either public or private sources that aspecific problem of discrimination against a class or classes ofpersons exists within the institution.

Except for pre-award clearances,all reviews and investigationsare scheduled by'the RegiOnalOfficeson'a quarterly basis. Sincethenumber and location of:pre-award revieWS cannot be anticipated by theO ffice:lor Civil RightsHsufficientlY in advande to permit plannedS cheduling,-they are scheduled as required.*

Adceas to Information;

In'conductinva compliance review, the Office for Civil RightsMust have adequate information ,about the contractor's employment

*Allegations of discriminatiOn filed !by. campusorganizations, or byadvOCacy groups such as NOW,:WEAL,:.NAACF,andJhOlationalillrban League,which Ao,not:containthesignatureofanyallegedvictim.:of:.the distriMinatiO*Or:Clan'authorized-rePieSentatiVe of such an individualWill be handled as part ofageneral:compliancereview.

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practices. Such information includes data reflecting generally theemployment status of ex5,sting employees and specific information onthe contractor's recruitment and hiring patternsH and on its employ-ment criteria, policies, and procedures.* I ; ,.lso be necessary

in particular instnnces to have access to spec .!,, information perti-

nent to employment decisions. It may also be nt!cessary to comparethe treatment of-a.number.of. individaals in order to- determine factorswhich .have. affected relevant employment decisions.

Examination of individual records could conclusively demonstratethe existence of discrimination if, for example, there is overt mentionin a personnel file that race, color, national origin, religion, or sexwas improperly considered in an employment decision. In such a case,examination of more general statistical data might serve as a gaugeof the extent of discrimination and the scope of the required remedy.A similar approach, would be wartanted where initial comparison ofpersonnel files of similarly situated employees indicates significantlydifferent treatment Corresponding with the race, color, ethnicity,

religion, or sex of the employees involved. Where the focal point ofan investigation becomes an individual or class instance of discrimi-nation, the examination of certain personnel records will in nostcases be necessary.

It should be made clear that access by the Office for CivilRights to personnel information is limited to_its obligation toidentify and eliminate discrimination prohibited by the ExecutiVeOrder, and to secure required affirmative action. The Office has nointention or authority to seek information for any other purpose.With this in mind, we expect the full cooperation of institutions ofhigher education in providing the Office for Civil Rights informationnecessary to evaluate the contractor's compliance status. See 41 CFR

SectionS 60-1.7(a)(3) and 60-1.43, and paragraph (5) of the equalopportunity clanse4

In addition, the Office for Civil Rights' investigative re-sponsibilties require that it have access to emPloyees of contractors,as sources of information.- The OffiCe4s therefore authorized tointerview any employee, without the presence of a contractor repre7sentative,: in the course ofHinvestigation or compliance activities,subject, of course, to reasonab4 procedures on time, place, andmanner. (See 41 CFR Sections 60,1.,;-20 60-1.24 and '60-1'..32.)

The Office will request information. in reasonable form, andwill not demand Access'to information and copying of records exceptduring normal businesS hours. Failure to protTlde itOrmation or

permit access to ancVdOpyi, of pertinent re-eovd q.i)nr:;titutes non-

, compliance with the contract 's obligations .intiche ExecutiveOrder, and subjects the contractor to enforce::;;.t ,Ition, including a

*See Appendix J on data requirements.

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hearing before an independent hearing examiner. During the course ofan enforcement hearing the contractor has an opportunity to contest theOffice for Civil Rights' determination as to the necessity and perti-nence of information it seeks.

Consistent with, its limited responsibilities, the Office forCivil Rights will not publicly disclose information gathered duringthe course of a compliance review except as indicated in the guidelines.

Conduct of Compliance Reviews*

1. Notice to the Institution

Once an institution has been selected and scheduled for review,a letter is sent by the Regional Civil Rights. Director to the head ofthe institution advisingThim of the anticipated date for commencementof the review. This notification will be sent to the institution asfar in advance as possible, but ordinarily at least six weeks prior to theinitiation of the compliance review.** The notice -will request theinstitution to prepare and make available either prior to or at theheginning-Of the review certain information which is necessary to adetermination of compliance. This information ordinarily will consistof:

1. For private institutions which are subject to Revised OrderNo. 4, a copy of the original affirmative action program including allof the hese data, analyses, documents and supportqg data which wereused in preparing the program. If the program has been in effect formore than six months, the updated affirmative action program and theevaluation of the program's opelAtlon since it was originally developedshould be included, as well as a'l actions taken to correct anyproblems of discrimination or underutilization.

Ifeither the original or updated program has been in.effect forless than six months, "and if the institutionbeligves that actionstaken under it would affect a determination of its compliance, theuniversity may, of course, includ&such information in its report.

*This section describes procedures normally followed, in the abLenceof unforeseen circumstances.

**Ln except:Wu to this minimum notice period will be in the caseof a pre.711warreV:Ww Nhe*e the anticipated date of a"Ward of thecontract or modification will'not permit such notice. In these cir-cumstances, as much advance notice as possible will be given to theinstitution. We have found that:the-normal prior notice period cangenerallybe:nd more than one week in these Cases; However, in mostcircumstances,: because an institution is directlY involved in contract negotiations with theoverntent, it can anticipate the needfor anOffideforCivilaights.Pre7award review sufficiently inadvance of the receipt of notice to proceed with preparing the infor-

'mation necessary` for the review.

-IS-

2. For public institutions specifically exempted from Order No. 4and for private institutions which have not previously held contractscovered by the Executive Order, the notice will request that the insti-tution prepare the basic employment information described. If such

institutions have drawn conclusions from the data as to discriminationor underutilization, the institutions are free to include the informa-tion, and we strongly-encourage-themtodo-so. Information on anyprograms and policies which have been developed pursuant to the con-tractor's affirmative action obligations should also be included.

3. If the institution, whether public or private, has been pre-viously reviewed by the Office for Civil Rights, a full report, bothnarrative and statistical, indicating all actions taken to correct anyproblems which may have been reported to the institution as a resultof the prior review should be provided.

The Regional Office may request that the above described infor-mtion be submitted to it prior to commencement of the on-site review,or it may request that it be available when its review team arrives tobegin the on-site review. Although it would be preferable to schedulethe review sufficiently in advance to permit the institution tv preparethe information and forward it to the Regional Office, this will notalways be possible, particularly in the case of a mandatory pre-awardreview.

2. On-Site Review

The purpose of a compliance review is to determine whether or not.the institution is fulfilling its contractual obligations of nondiscrimi-nation and affirmative action. In roost instances, prior to any review,it is helpful for the Regional Office to have the benefit of the con-tractor's own analysis of its employment practices, its own evaluationof its utilization of minorities and females and its own plans andprograms for overcoming problems whichllit has identified through theseself-evaluation rrocedures. Indeed, if the contractor has fully com-plied with its obligationS under 41 CFR 6071, 60- 2,.60 -3 and 60-20, thereview may consist of no more than an evaluation by the Regional Officeof the adequacy., of thecontractor's analyses and conclusions and of theplans and programs which it has developed to overcome problems of dis-crimination and underutilization. The scope of the review will to agreat extent depend on the quality of self7evaluation engaged in by thecontractor prior to the on-site review.

On the basis'of a review of the data prepared by the contractor,the Regional Office will select for review specificdepartments or otherorganizational units, specific job categorieS across departmental ororganizational lines, and specific personnel practices or policiesapplicable within the institution as a whole. If :the review team deems

it necessary for purpose of determining compliance, the review willinvolve thedetsiled,eXamination ofjormal and informalHperSonnel pro-cedures and policies, as well as individual persOnnel records of em-ployees, former employees and applicants for employment in the !Organiza-.tional units and Job categories being analyzed. 1 During the course of the

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review, the Regional Office team may wish to conduct interviews withemployees, former employees .ind applicants for employment in those jobcategories or organizational units being examined- and with personnelresponsible for participating in the personnel ....;cisions affecting theselected job categories or organizational units. Interviews may alsobe conducted with representatives of oraanizatious active on thecampus and community Organizations which have an inter'2st in equalemployment opportunity. It should be emphasized that the organizationalunits, job categorieS and persOnnel procedures initially selected for

_examination may be expanded during the review if any information isdeveloped which in the judgment of the Regional Office requires furtherevaluation and examination.

Based on the information gathered through these processes, pre-liminary findings will be developed by the review team and presented tothe head of the institution or his designated representative at anexit conference. Suggestions will be offered as to how the institutioncan-correct or remedy any prOlems of discrimination. or underutilizationdiscovered during the review. While it is expected that the reviewteam will keep the contractor's` representatives fully informed ofproblems as they are discovered during'the review, the formal exitconference will assure that the contractor is fully apprised of thelikely findings of the review.

The e'dt interview does not represent a formal presentation ofthe findings, but provides the contractor an opportunity to review and-sact to the probable findings, to submit any additional documentation,and to discuss any additional factors which may not have been broughtto the reviewers' attention during the review.

Compliance Letter

Within approximately 30 days of the on-site review and the exitconference, the head of the institution-will receive a formal letterfromthe Regional Civil Rights Direetor. The'letter will include anevaluation of the institution's compliance,status in each organizational unit, job eategory orpersonnel polly or procedure examinedduring the review. The letter will include al identification anddiscussion of all:facts considered.. The letter' may also indicate,specifically-what must be accomplished by the contractor, suggestionsas to what additional actions the contractor might take, and a maximumperiod of time within which the, remedy must be effected.

This letter may be presented either in person by a meMber of the.

Regional Office staff or mailed to the contractor. If major problemsare found, the letter will be dif,:cussed in detail with the responsibleadministrative officers of the institution.

4. Response by the Contractor

Within approximately A days of receipt of a compliance letter the con-tractor will be expected-tOreapOnd in writing to the Regional Civil RightsDirector This response must addreas itself to each citation contained

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in the compliance letter and indicate in detail wha action has been

taken or is planned by the contractor on each point, including the

period within which he intends to take action. If the action differs

from that set forth as acceptable in the compliance letter, a full

justification for the alternative must be set forth, including evidence

that the will be.effective. If the. time limit fo7, effective

action differs from that indicated in the compliance letter, the con-

tractor must also provide evidence to support his conclusion that the

action cannot be effected within the time specified by the Regional

Office.

If the contractor disagrees with a finding made by the RegionalCivil Rights jirector, its response must state in detail the basis for

disagreement and provide evidence to refute the validity of the facts

upon which the finding was based, or demonstrate that the finding

itself was based on an erroneous interpretation of the facts. In ;any

such case it is expected that the contractor will provide any additional

documentation which it considers appropriate to support its position.

Exceptions tf.. the, exit conference, compliance letters and response

procedures will in most cases be required in pre-award reviews which

carry a requirement that notice be given to the Government contracting

agency regarding the prospective contractor's compliance status within

30 days of the request for clearance. In such instances every effortwill be made by the Regional Office to issue the formal letter within

3 weeks of the reqUest, which would allow the contractor one week for

response. If. the contractor is unable for reasons beyond-his control

to respond within the one week period, an extension of the 30-day

clearance period will be requested by the Office for Civil 'Rights from.

the contracting .qency. However, if the contractor elects not torespond within the one week or an extension cannot be secured-from the

contracting agency, the Office for Civil Rights will be .unable to make

the positive certification required for the award.

5. Evaluation of the Response

Within approximately 30 days of receipt of the:institution'sresponse', the\Regional Civil Rights Director will notify the head of

the institution of the results of his evaluation of the response, 'Jf

the response appears to the Regional Office to be satisfactory, or if

the response is sufficient to alter a previous finding, the notification

will indicate the Regional.Office's tentative acceptance of the response

-kind will advise the institution that it has beenforwarded to the Wash-

ington Office:: with a recommendation for final acceptance.

If the response is not acceptable to the Regional Office, thenotification will indicate theareas:of unacceptabilitTand usually will

request a cnnference with the cot .tractor attempt to resolve the

differences. Ifa resolution cannot be achieved within approximately 30

dayb following this notificaticin,: the matter will be forwarded to the

WaShingtOn Office with appropriate recommendations for additional

conciliation efforts or enforcement action.-,: If such recaMmendatgons

arelaade by a Regional Office, the head of the institution' will be so

advised' inwriting':by the Regional Civil Rights Director. When a case

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is not resolved at the level of the Regional Office, the WashingtonOffice may determine that additional conciliation efforts are necessarybefore taking enforcement action. In such casas, the Director of theOffice for Civil Rights will inform the institution of its opportunityto meet with the Director

or his representatives for further discussionof the unresolved issues,.

Conduct of Class Complaint InVestigations

1. Notice to the Institution

Within approximately 10 days of the filing of a class complaint,a notice will be sent by the Regional Civil Rights Director to the headof the institution advising him of the receipt of a complaint. Thisnotice will include the date, place and circumstances of the alleged-unlawful employment practice. Notification of a scheduled review willbe sent to the institution as far in advance as possible but at leasttwo weeks prior to the initiation of the investigation.

2. On-ete Investigation

At the opening of a! investigation a copy of the complaint will beprovided to the institution, and thr institution will be advised of theprocedures to be followed by the reviewer conducting the investigation.The institution will also be advised at this time of the particularpersonnel processes and the organizational units or job categories whichwill be reviewed as a part of the investigation. The investigation mayinvolve, according to the discretion of.the compliance review team, anexamination of relevant data and information concerning ?resent employees,former employees or aPplicantf: foremployment in the organization unitsand job categories: associated with the Complaint.. It may also includean analysis of formal and informal persOnnel procedures and policiesassociated with the partiCular practice being examined; interviews withemployees,, former employees or applicants for employment..

Based on the information gathered during the investigationpreliminary findings will be developed by the investigative team andpresented to the head of the institution or his designated:represetativeat-an exit conference. AS in the case of regular reviews, the exit-interview doep nottepresent a formal presentation of the finding; butprovides the cOtractoran opPortunitTto submit any additional documenta-tion and discuss any additional.1actors which may not have'been'broughtto thereviewers' attention during, the review and -which it wishes thereviewers to consider inpreparing: their formal findings. If the7pre-liminary'findingAs that the allegations are valid, the investigative:-team will sdvise the institution as]to the specific corrective actionwhich may 1* required by the:contractor,to reMedythediScriminatorytreatment, and of the date by which sUch:actionsshould be taken. Itshould noted:that while aformal finding is not made at the exitconference, this shaul&nOtpreclude,

the:contractOr'S acting to remedya matter ,brought to his. attention during theexit'conference,:prior toreceipt of formal findinga

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It should be emphasized that the law protects individuals who have

complained of discrimination from harassment by the employer because of

that complaint. Instances of harassment or reprisals brought to theattention of the Office for Civil Rights may be considered a basis forenforcement action. The same cTiteria apply to relatives of complainantsand to those who aid in a Government inquiry.

Steps Following Non-compliance Determinations

Show Cause Notices

When the Director of the Office for Civil Rights has reasonablecause to believe that a contractor has violated, the equal opportunityclause, he may issue a notice requiring the contractor to show cause,within 30 days, why monitoring, enforcement procedures or other ap-propriate action to ensure compliance should not be instituted. (See

41 CFR 60-1.28) A show cause notice will in all cases'be issued tothe contractor when it is found that a contractor does not have anaffirmative action program or that the IL-0gram is not acceptable underthe standards contained in 41 CFR 60-2.10 through 60-2.32; The Depart-ment of Labor recently issued a Notice of Proposed Rule-Making torequire that a show cause notice be issued when there is a substantialdeviation from an affirmative action program (37 FR 17766). In other

enforcement circumstances, a show cause notice is not required and itsuse is at the sole discretion of t..7,e Director, Office of FederalContraCt Compliance, Department abor.

Show.Cause notices may also be issued by the Regional Civil Rights4-Director asyi part of letters of findings following either a compliance

review or a complaint investigation if it is found that an institutionwhichis required to have developed an affirmative action program hasnot doneso, or that the affirmative action program which has beendevelOped by the institution does not Conform to the guidelines con-tained ix. 41 CFR 6072.10 through 60-2.32.

Sanctions and Penalties

The Executive Order authorizes the imposition of the followingsanctions and penalties against contractors who have failed to complywith the provisions of the Executive Order and the implementing.regulations:

1. Publication of, the name of the non-complying contractor.

2. Cancellation, termination, and suspension of contracts orportions of contracts.

3. Debarment from future contracts or extensions or-Modificationsof existing contracts.

In addition, the Director, Office of Federal Contract Compliance,may in, some cases recommend tothe Department of Justice or the'EqUal

Employment Opportunity Commission the'initiatiOn of apprCpriatejniicial

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proceedings, including criminal proceedings by the Department ofJustice for providing false information.

Prior to the imposition of any sanctions and penalties,reasonable efforts within a reasonable time must he made to securecompliance through conference,'conciliation; mediation and persuasion,and the contractor must be afforded an opportunity for a hearing. Wehave briefly described the processes of conference, conciliation,mediation and persuasion above in outlining the compliance review andcomplaint investigation procedures. When these efforts fail to producecorrective,action adequatc to overcome any instance of noncompliance,appropriate administrative proceedings leading to the imposition ofsanctions and penalties will be initiated. The first step in thisproCesa will be a letter giving contractors 10 days in which tocomply or request a hearing before an impartial hearing officer. Theprocedures for imposition of the sanctions and penalties are detailedin 41 CFR 60-1.26, 60-1.27, 60-1.30 and 60 -1.31.

A hearing adjudicates whether the contractor is out of compliancewith the requirements of the Executive Order and its regulations.Except to the extent that applicable law provides otherwise, the burdenof proving noncompliance is on the Government. 'Hearings are conductedin accordance with the Department's rules for such proceedings, pub-lished.at 45 CFR Part 82 and 37 Fed. Reg. 7323. These rules alsoprescribe the procedures for intervention of interested parties inthese proceedings (section 82.6), and for review within the Departmentof the decision of the nearing officer (section 82.37).

The Office for Civil Rig.,tits is responsible for advising HEW contract-ing agencies as to whether contractors for which they are responsible cancomply with t,a requirements of the equal employment opportunity clausecontained in each Federal contract over $10,000. Such advice is bindingupon the contracting officers in their determinations of the responsibilityof prospective contractors. OFCC is responsible for advising otter agencieson the contractor's compliance status. Such advice is ordinarily. basedupon the information and findings of the OCR review.

If the Office for Civil Rights has determined, pursuant to thereview, and enforcement procedures outlined in this and the precedingsection, that a contractor is unable to comply with its equal employmentopportunity obligations, the Director may so advise all contractingagencies.* This notification may or may not occur in the context of a

1c -CFR:,60,2.2. provides in part that "{AnY contractor .required . todevelop an affirmative action program . . who has not complied fully. . .is not in compliance with Executive Order 11246 . . and "is unable

to comply with the equal employmentopportunity clause'' unless the goVern-mentcan "otherwise affirmatively determine that the 'contractor, is able

to comply with his equal employment cbligationg oriUnlees, upon review,it is determined by the Director fOffite of Federal :Contract Gompliancelthat substantial issues of law or fact exist as to the contractor's

.

,...Sponsibilityto the extent that a hearing is, in his sole judgment:,required prior to a determination. .

,'"4-

response to a request for clearance of a new award or of the modification

or extension of an existing contract.**

Notification of "inability to comply" to contracting agenciesby tlz-t .Director of the Office for Civil Rights has the effect of denyingor deferring. the .extension of an exis'77:ng.contract or the award of. a new

contract which may arise. In such. cases, the contractor is entitled tohaVe an Immediate hearing on its compliance status concurrent with thesecond denial or deferral of a contract award.

Procedures for a formal hearing, including those for cancellationor termination of existing contracts and debarment from further contracts,

are set forth in detail in 41 CFR 60-1.26(b) (Tab B), and in Chapter 27-10

of the Department of Health, Education, and Welfare General AdministrationManual (34 FR 127.6).

** 41 CFR 60-1.20(d) priaOides that contracts of $1 million or more,including modifications or extensions of existing contracts which involvethe allocation of additional funds in the amount of $1 million or more,

can not be awarded without a finding that the prospective contractor iscomplying with the provisions of the Executive Order and the implementing

regulations.

Data Gathering and Analysis Suggested Procedures

A necessary prerequisite to the development of a meaningful affirmative

action program is the identification and analysis of problem areasinherent in minority and female employment, and an evaluation of the

opportunities for utilization of minorities and women in the contractor's

workforce. (See Guidelines p. 2 for an explanation of the obligations

of public contractors.)

The first step in the contractor's analysis of its workforce is todetermine where policies and practices have had the effect of denyingequal'employment opportunity and benefits to certain groups of persons

on a discriminatory basis. This will necessitate the development of a

comprehensive inventory of all employees.

An employer must then organize this inventory so as to deterMine:

1. any patterns of job classificationand assignment identifiableby sex or minority group;

2. any job claSsification or organizational unit where women andminorities are not employed or are underutilized (see Guidelines

p. 3 for a definition of underutilization); and

3. any patterns of difference in rate of pay, status, type of

appointment, termination, or rates of advancement within job

classifications or organizational units which are identifiable

by sex or minority group.

The results of a contractor's analysis should beshared and discussed withpersonnel relations staff, with department snd divisional heads'and with

other supervisors responsible for academic and nonacademic personnel to

determine whether patterns suggesting deficiencies in equal employment

exist and, if so, why. At this stage of evaluation, some institutions

have; set up task forces to assist in identifying discriminatory patterns

and practices. This has proven particularly useful in the area of

academic employment', where the faculty has traditionally had a principal

responsibility for matters relating to faculty status.

Basic Data File

The contractorMust first establish a basic data file: its employees.

This is the primary source material:of the institUtion'an4:need not besubmitted to the Officefor:Civil Rights, although the contractor may be

required at some time to supplT,M11 with thishinformation in order to

determine-the accuracy in the compilation of the data.

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The basic file should contain the following for each employee:

(1) name and/or identification number (See discussion below)(2) sex(3): ethnic identification (Negro, Spanish-surnamed, American

Indian, Oriental. All others, including Caucasians, should beidentified as ''other")

(4) year or date of birth, or age(5) current salary (full-time annual equivalent)(6) current job family or generic job family(7) current job title(8) personnel action resulting in current job title (new hire,

promotion, transfer, demotion)(9) date of personnel action resulting in current title (years in

current job)(10) previous job title(11) employment status (full-time, part-time, tenured, non-tenured,

etc.)

(12) educational level(13) organizational unit where employed(14) date of hire

The contractor may wish to compile this basic data in,the form of :asterlist,, or computerprintollt, arranged by department, within department byjob classification, and:within job classification by length:of service andsalary.' The Office'for Civil:Rights will not normally require that theaeprintouts be submitted, if the summaries described below are compiled insuch a way as to be sufficient to determine compliance.

In colleOting data on employees, it is not necessary to identify theemployees by name. Where there is an objection raised by an individual toproviding data on his or 'her race or sex, it should be made olear thatindividuals are not themselves legally bound to report such information.Where an inventory by Voluntary submission of such the part ofemployees is not Obtained,however, employers must rely,on their supervisorsto make identification on the' basis' Of their "best knowledge of emplOyees.It 'is cleat, that: no inventory method,andpartioUlarly thejatter one, 411provide perfect accuracy. 'Nevertheless the institutionmust deVise:somemethodwhich will produce 'reasonably accurate data Upon which to base itsidentification ofproblems Or' deficienciesand to develop: a responsiveaffirmative action Program.'

. Organization

The basiedataonall employees must be summarized for, ready analysisin the followingmanner:

1. by department, a list of each job classification in descendingorder (e.g. kofessor, associate professor; secretary 1, secretary 2, etc.)showing the numbers by sex for each racial and ethnic group, as well ascumulative figures for minorities and for females generally.

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2. by job classification, within the entire institution, showingthe numbers by sex for each ethnic group, as well as cumulative figures

for minorities and for females generally. In order to-satisfy this require-ment an institution must establish an organization chart, broken down bycareer ladders; it must also classify all job titles and organize theminto career ladders. The duties, educational requirements, experientialrequirements and pay ranges for each position must be made reasonably

explicit.

3. by department, the mean salary in each job classification,by sex for each racial and ethnic group.

4. by job classification, across department lines, the meansalary in each classification, by sex for each racial and ethnic group..

C. Required Analysis

1. Availability of Women and Minorities

A unique aspect, of equal employment opportunity under theEexecUtive Order is the required compilation of availability data pn

women and minorities for use as a measure of the contractor's equalemployment opportunity. By comparing availability data with currentemployees, the contractor has an indication of how representative itsworkforce is of the persons,qualified for employment in its institution.

The Department of Labor's Revised Order No. 4 (41 CRF 60-2.11(A) (1 and 2)

contains, explicit guidelines for constructing an availability index for

minorities and an availability, index for women. These indices are par-ticularly applicable in the case of nonacademic personnel.

The demographic data needed to develop these estimates can generallybe secured through the Census Bureau, the Department of Labor's Bureauof Labor Statistics and its Women's Bureau, and from city, co,Htty and

state goVernments, including planning commissions and public employment

agencies. FstiMates concerning' minority population, workforce andrequisite skills may often be obtainedfroml.ocal Chambers of Commerce,union Organizations, employer, associations, :Meal:educational institutions,community OrganizAtions,and minority and women's advocacygroUps suchas the Urban League and NOW. The coMmunity,orgeniiationsServingminorities and women will ofter(biathe closeat to the situation andthus, should be:contacte&by the ,contractor in :preparing, estimates of

availability.

For academic4)ersonnel the of availabilitY figures is slightly

different because the recruiting 'area will VaryfroM institution to

institution. It may be a national OrHevenjnternational one. Because

theskills:_required for apartieulAr0Ositionare' often quite specialized,..,.:accurate inforOationon availability may.:be:,More4iffiCUlt to Obtain.

OCR recommends;,the following proCedurefordetermining availability figuresfor women and minorities for academic positions:

Many disciOlinary associations and professional groups have datathatshow,'percentages of raCiAlinational or gin minorities available in, certain

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fields, and a 1968 study by the Ford Foundation (Office of. Reports)provides percentages of Negroes holding doctorates. To determine thenumber of women available for senior level positions, the Officerecommends that the contractor use data available from the NationalRegister of Scientific and Technical Personnel prepared by the NationalScience roundation, and the U.S. Office of Education's annual reportson earned'degrees. Another source is the National TesearCh Councilof the National Academy of Science. This data has been compiledby sex, but is now.being compiled by race, as well. The NSF data isbroken down by sex, specialty and subspecialty, highest degree, years ofprofessional. experience, and primary work activity. The OE data is brokendown by sex, degree earned, school granting degree, and specialty. Forwomen in junior positions, the Office recommends that the contractorconsider the OE annual report of earned degrees for the last 5 years andcurrent graduate school enrollments.

To the extent that an institution makes a practice of employing its owngraduates, the number and percentage of graduate degrees which it hasitself awarded to women and minorities in the past ten years or soshould be reflected in the goals which it sets for its future faculty

. appointments.

For academic employees the basic national data. on earned doctoral degreeswill provide the basis for a utilization analysis of a contractor's work-force, unless the contractor can otherwise demonstrate that the labormarket upon which it draws is significantly ,different from this base.For example, some institutions appoint a large number of new facultyfrom a-particular group of graduate school's; such institutions may usedata obtained from these schools todetermine the availability of women andminorities the annual output of women and ttnorities from theprimary feeder schoolseXceeds the national average, the contractor willbe expected to use the higher figures to determine availability. If theoutput froth the feeder sdhoOls is less than the national average, theinstitution will be expected to justify .its use of such recruitmentsources, or use the higher-igures to 'determine eligibility',

2. Comparison of Current Workforce with Availability Data

The next step for.thecontractor IS to compar-the number ofwomen and minorities in its current workforce with their availability inthe market from which' it can reasonably recruit. '.This toMPariSon mustbe by toMparablela:tategories.

Whereverthe:comparison,reveals:thata hiring unit oftheunivers#Y :(a 'department or Other section) is notemploying minorities and.women to theextent that they are availableandAualified for work, it is then required .to set goals to overcomethis situation.

Goals,:shouldbe'set,so as toovercoMedefidienciesin the utilizationOf minotitieS.an&women within a reasenable:time Trimany cases, thiscan be accoMplishedHwithin 5 years;,inothers more timeor' less timewill be 'required.

Goals ,may be .set in vImbers, or percentages, and should reflect notonly the number of nev, gyres but also,the projected overall.composition

the iven unit.of the work force in 'g

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It is necessary to set goals that will overcome underutilization in the

institution's work force within a reasonable period of time, not merelyto set goals for new hires based on current availability.

In many institutions the appropriate unit for goals is the school or

division, rather than the department While estimates of availability in

academic employment can best be determined on a disciplinary basis,anticipated turnover and vacancies can usually be.calculated on a wider

basis. While a school, division or college may b4 the organizationalunit which assumes responsibility for setting and achieving goals,departments which have traditionally excluded women or minorities fromtheir ranks are expected to make particular efforts to recruit, hire-

and promote women and minorities. In other words, the Office for Civil

Rights will be concerned not only with whether a school meets its overallgoals, but also whether apparent general success has been achieved only by

strenuous efforts on the part of a few departments.

3. Salary Analysis

A salary analysis is requIre&for all employees. The basic

question to be answered by such an analysis is whether there is adifference in the salary of employees with the same job title that canbe attributed to their sex or minority status. However, before this

analysis is done,. job titles must be compared and overlapping ones

merged so that persons, doing the Same work with different job titles

benefit from the salary analysis.

The most effective means .of. undertaking a meaningful salary analysis

may varyfrom institution. to.institution.. Factors which are taken

into consideration'in'determining -salary may vary Among -and..even within

institutions. The purpose and function of every salary analysis should

be to determine whether women or minority group. persons arebeing.paidlower wages.fOr performing thesame or essentially the same duties.

D. Additional types of analyses which are useful in determining compliance

1. Locations Analysis

In an attempt to prevent the development. of':Segregated.job titles

in any physical. 'location, a locations reportEis.suggestech This report

nhould:examine:the-rate...sex7.-natiOnal,,origincomposition of each job title

iteach:Major.OrganizatiOnal'unit:ofthe;institutionie.gathletit.AepartOent, health'serviSs,.:hospitalatentral:adMinistration, deans.'offites,'bUildingand..grounds,,etc.

thisHanaiYaiamay.nO0erevealinvwhere._theiinitslnvol. J are small or..-

where the,:nUMbers.::of-Minarities-orwpmen'An..thejob-titl

wherea.universityAiscOveis-that ithas*a-:minority:.orsex..groupdltisteredin":anyone.,nnit4...evqp.'thongh-there:::are*memhersof the opposite sex or of

otherMinoritiee'iwthe'eaMeAohtitle...clustereVelsewhere, corrective. action

must-be.taken.; IfauniversitydiScOverathareasonjor:thia.concentration,.it cait.prevent'it'froTrecurringor -continuing.. by.altering:itS,policies..

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This type of analysis may also be useful in determining at what point inthe organizational structure women or minorities cease to move upward,and what obstacles to upward mobility may exist within the contractor'sorganizational structure.

2. Promotion Analysis

A university may also compile data to determine.the success orfailure of women and minorities in attaining promotion or tenure.One possible' method is to compare the time spent prior to gaining promotionor tenure by males and by females of similar experience or by minoritiesand by others of similar experience. Another comparison could show thepercentage in each group eligible for and those granted promotion ortenure. Wide variance among sex-ethnic-racial groups would necessitatefurther analysis.

E. Testing and Test Validation'

41 CFR 60 -3 ("Employee Testing and Other Selection Procedures')requires all. contractors to validate tests used as a basis for employ--ment decisions, in order to make certain they are not discriminatory,and provides that contractors may. be required to validate other employeeselection techniques.

The term "test is defined as any paper-and-pencil or performancemeasure used as a basis for any employment decision and all other formal,scored, quantified or standardized techniques of assessing job suitability.

The latter techniques, include personal history and background requirementswhich are specifically used' as .a basis for qualifying or disqualifyingapplicants or employees, specific educational. or work history require-ments, scored interviews, biographical information blanks, interviewer'srating scales andscored application forms.

If a:test or selection technique is determined to have a disproportionateimpact on minority persons or wamen,:sUch,test,or selection technique mustbe validated pursuant to the regulations cited above.

A testing report should contain the following data; name of test, publisher,and publication date:of:the test,the groups on whom it was, validated andwhen andwherej the groups to whom it is Administered:by the contractor andin what employment it is used, the average score, the Standarddeviation fOr each race-sex grO6p:taking the test and the nUmber of people ineach:race7sex-:group taking: the test Data,shoUld be:kentindicating thescores, standard devittion':and number of people in each raCetseXgroup whotook the,'test and subsequently'receive favorable; erSonnpi action (hired,promOtect, OlaCed in new job) lnpart 'because of their test scores. Based onthe analysis of this:data,: the contractor must determine wheretests must"beeliminated or modified.