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Title VII: Relationship and Effect on Executive Order 11246 Robert D Boston College Law Review Volume 7 | Issue 3 Article 10 4-1-1966 Title VII: Relationship and Effect on Executive Order 11246 Robert D. Manning Stephen R. Domesick Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Civil Rights and Discrimination Commons, and the Labor and Employment Law Commons Recommended Citation Robert D. Manning & Stephen R. Domesick, Title VII: Relationship and Effect on Executive Order 11246, 7 B.C.L. Rev. 561 (1966), http://lawdigitalcommons.bc.edu/bclr/vol7/iss3/10 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. TITLE VII: RELATIONSHIP AND EFFECT ON EXECUTIVE ORDER NO. 11246 ROBERT D. MANNING* STEPHEN R. DOMESICK** With much less controversy than accompanied the passage of Title VII of the Civil Rights Act of 1964, Presidents of the United States since 1941 have issued Executive orders proscribing discrimina- tion by employers holding government contracts.' Currently, the pro- gram of nondiscrimination in employment by government contractors and by contractors holding construction contracts financed with federal assistance is regulated by Executive Order No. 11246 of Sep- tember 24, 1965.2 The issuance of this Executive order subsequent to the effective date of Title VII clearly demonstrates the Government's commitment to a broad-based program of equal employment opportunity.' There is a considerable functional overlap between Executive Order No. 11246 and Title VII, but significant differences exist between the two pro- grams in effectuating the common goal of nondiscrimination in em- ployment practices. This paper will examine the operational functions of Executive Order No. 11246. I. GENERAL BACKGROUND Executive Order No. 10925 of March 6, 1961,4 established the President's Committee on Equal Employment Opportunity (PCEEO), an inter-agency committee composed of the heads of the principal executive departments and agencies and public members. The Com- mittee was charged with the responsibility of carrying out the execu- tive branch's program of nondiscrimination in government employ- * A.B., University of Massachusetts, 1948; LL.B., Boston University, 1951; Member, Massachusetts Bar Association; Partner, Angoff, Goldman, Manning & Pyle. 4', B.A., Brown University, 1960; LL.B., University of Pennsylvania, 1963; Member, Massachusetts Bar Association; Associate, Angoff, Goldman, Manning & Pyle. 1 This form of control is derived from the Government's power to do business with its contractors and suppliers on its own terms. Perkins v. Lukens Steel Co., 310 U.S. 113 (1940). Exec. Order No. 8802, 6 Fed. Reg. 3109 (1941), stated that employers and unions have a duty "to provide for the full and equitable participation of all workers in defense industries without discrimination because of race, creed, color or national origin." As to the constitutionality of the promulgation of a nondiscrimination clause by Executive order, see Pasley, The Non-Discrimination Clause in Government Contracts, 43 Va. L. Rev. 837 (1957). 2 30 Fed. Reg. 12319 (1965). The order became effective on October 24, 1965. 3 At present, contracts subject to this order cover approximately 38,000 employers and over 18,000,000 employees. Powers, Federal Procurement and Equal Employment Opportunity, 29 Law & Contemp. Prob. 468 (1964). 4 26 Fed. Reg. 1977 (1961). 561 BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW ment° and in employment by government contractors and suppliers. The authority of the Committee was later extended to the employment practices of contractors and subcontractors on federally assisted con- struction contracts.° In order to give the President's Committee a statutory basis and, more important, to enable the Committee to obtain appropriations for its work,? the Administration's proposed Civil Rights Act of 1963 authorized the establishment of a committee to prevent discrimination in employment by government contractors and contractors on federally assisted programs. However, that provision of the original bill was deleted in the House Committee on the Judiciary. The legal status of the Committee was somewhat strengthened by the Civil Rights Act of 1964.8 The Committee was directed by Title VII to confer with the Equal Employment Opportunity Com- mission (EEOC) and with state agencies, employers, employment agencies and unions subject to the title, at the direction of the President.° The act also provided specific statutory support for the executive action already taken: employers filing compliance reports pursuant to the Executive order were not required to duplicate their efforts by also filing reports under Title VII.'° After the enactment of Title VII, the problem of coordinating the Government's numerous equality programs became the respon- sibility of Vice-President Humphrey,'' who subsequently recommended to the President that operational functions be reassigned to depart- ments and agencies with clearly defined responsibilities, as distin- guished from inter-agency committees such as the PCEE0. 12 5 The President's Committee on Government 'Employment Policy, established by Exec. Order No. 10590, 20 Fed. Reg. 409 (1955), as amended, Exec. Order No. 10722, 22 Fed. Reg. 628 (1957), was abolished and its duties transferred. Exec. Order No. 11246 subsequently transferred responsibilities for insuring nondiscrimination in federal employ- ment to the Civil Service Commission. a Exec. Order No. 11114, 28 Fed. Reg. 6485 (1963), extended coverage to construction contracts financed with federal funds. 7 The President's Committee, which received no appropriation, was financed by contributions from the interested federal agencies. The authority of the Committee, while nominally great, had been weakened by its lack of a specific statutory basis. As a conse- quence, the President's Committee tended to emphasize voluntary compliance. 8 78 Stat. 241 (1964), 42 U.S.C. § 2000e (1964) [hereinafter cited by section only]. 9 716(c). 10 § 709(d). 11 N.Y. Times, Dec. 11, 1964, p. 1, col. 6 (city ed.). 12 The reassignment was intended to eliminate confusion and duplication and estab- lish a well-defined responsibility for the basic program of discrimination in employment in the contracting agencies. Memorandum to the President from the Vice President, CCH Employment Practices Guide It 16,012.50 (Sept. 24, 1965). Each .agency is required to appoint a Contracts Compliance Officer who is to be subject to the immediate supervision of the head of that agency for carrying out the organization's nondiscrimina- tion responsibilities. 41 C.F.R. § 60-1.5(b). 562 TITLE VII: EXECUTIVE ORDER 11246 In a move designed to streamline enforcement procedures, Presi- dent Johnson issued Executive Order No. 11246 which transferred to the Secretary of Labor the supervision of programs guaranteeing fair employment practices on the part of government contractors and contractors working on federally financed projects." The reassign- ment of these functions eliminated the need for the PCEEO and it was abolished on October, 24, 1965. Its records and property were transferred to the Office of Federal Contract Compliance, Equal Em- ployment Opportunity" which was established by the Secretary of Labor to absorb the Committee's functions." In the interest of con- tinuity of the program, the Secretary of Labor has provided that all rules, regulations, orders, instructions and other directives issued by the President's Committee are to remain in effect unless inconsistent with Executive Order No. 11246." II. COVERAGE OF EXECUTIVE ORDER No. 11246 Generally, the Executive order is applicable to the employment practices of all government contractors, their subcontractors and vendors, and contractors and subcontractors on federally assisted construction contracts." Every person or company awarded a contract with the Govern- ment for supplies or services, including construction, or for the use of government property, is termed a "prime contractor" and is subject to the order." Coverage of prime contractors is assured by requiring all contracting agencies" of the Government to include in every gov- ernment contract20—unless otherwise exempted—a so-called equal opportunity clause21 which prohibits employment discrimination be- 13 The Secretary of Labor had served as Vice-Chairman of PCEEO. § 102(b), Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961). In that position he had the primary responsi- bility for reviewing complaints and, through the contracting agencies, insuring com- pliance by government contractors with nondiscrimination requirements. la § 403(a), Exec. Order No. 11246, 30 Fed. Reg. 12325 (1965). 15 30 Fed. Reg. 13441 (1965). 18 And all references to the "Committee," "Chairman," "Vice-Chairman," and "Executive Vice-Chairman" in such rules, regulations, etc,, are to mean the Director of the Office of Federal Contract Compliance of the United States Department of Labor. Ibid. 11 §§ 203, 301, 30 Fed, Reg. 12319 (1965). 18 41 C.F.R. §§ 60-1.2(g), (h), (j), (I), as amended, 30 Fed. Reg. 13441 (1965). 19 A contracting agency is any department, agency and establishment in the executive branch, including wholly-owned government corporations. 41 C.F.R. § 60-1.2(o) (1965). 29 "Government contract" is defined in 41 C.F.R. 60-1.2 (1965). A "contract," as used in the
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