DOCUMENT RESUME ED 195 655 CE 026 510 AUTHOR Shaeffer, Ruth G. TITLE Nondiscrimination in Employment,1973-1975. A Broadening and Deepening NationalEffort. INSTITUTION Conference Board, Inc., New York,N.Y. PUB DATE 75 NOTE 130p.: For related documentssee CE 026 514, ED 055 216, ED 080 744, ED 036 306,and ED 133 571. AVAILABLE FROM The Conference Board, Inc., 845Third Ave., New York, NY 10022 ($10.00, Associate andEducational; $30.00, non-associate. For special priceson group orders for classroom use, contact theInformation Service Division).

EDRS PRICE MF01/PC06 Plus Postage. DESCRIPTORS Adults: Affirmative Action;Age Discrimination: Career Education; Civil Rights; CivilBights Legislation; *Compliance (Legal);*Court Litigation: Disabilities: *Equal Opportunities(Jobs); Equal Protection; *Federal Courts;*Federal legislation; Federal Regulation: Laws: RacialDiscrimination: Sex Discrimination: Sex Fairness IDENTIFIERS Age Discrimination in EmploymentAct 1967; Civil Rights Act 1964 Title VII; EqualPay Act 1963; Executive Order 11246; RehabilitationAct 1973: Title IX Education Amendments 1972:Vietnam Era Veterans Readjustment Assistance Act ABSTRACT This supplement to ED C86 806discusses developments in the field of equal employmentopportunity (EEO).A section on recent Aevelopments under TitleVII of the Civil Rights Act cf 1964, as amended, covers the American Telephoneand Telegraph Consent Decree, other conciliation and consentagreements, labor relations aspects, individual suits, testingand other employee selection procedures, seniority,sex discrimination and employee benefits, validity of performance appraisals,and processing of complaints by the EEO Commission. Thenext section briefly discussesrecent developments under executive order11246, as amended (compliance by specified types of governmentcontractors). Other routes to federal court action are then covered.A section on recent developmentsunder the Age Discrimination in EmploymentAct of 1967 addresses work-force reduction problems and relationshipof the job to theessence of the business. Recent developmentsunder the Equal Pay Act of 1963are then presented. A final sectionfocuses on new laws and regulations: Rehabilitation Act of 1973,as amended: Vietnam Era Veterans Readjustment Assistance Act of 1974:and Title IX (Educational Amendments 1972) regulations. Appendixes,amounting to approximately twc-thirds of the document, includeadditional excerpts from federal court decisions about nondiscriminationand additional texts of various constitutional provisions andfederal laws and regulations, as most recently amended. (YLE) Nondiscrimination in Employment,1973-1975

A Broadening and Deepening National Effort

By Ruth G. Shaeffer

A Research Report from The Conference Board's Division of Management Research Harold Stieglitz, Vice President

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Coriference Board Report No. 677 Printed in U.S.A. Library of Congress Catalog No.: 75-37476 ISBN No.: 0-8237-0111-5

3 Contents Page FOREWORD

INTRODUCTION 1

RECENT DEVELOPMENTS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED 4 The AT&T Consent Decree 4 Other Conciliation and Consent Agreements 7 Labor Relations Aspects of EEO Matters 13 Individual Suits under Title VII 17 Testing and Other Employee Selection Procedures 17 SeniorityOld Issues and Two New Dilemmas 20 Sex Discrimination and Employee Benefits 23 The Validity of Performance Appraisals 26 The Processing of Complaints by the EEOC 28

RECENT DEVELOPMENTS UNDER EXECUTIVE ORDER 11246, AS AMENDED 30

OTHER ROUTES TO FEDERAL COURT ACTION 32

RECENT DEVELOPMENTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 35 Work-Force Reduction Problems 35 The Relationship of the Job to the Essence of the Business 35

RECENT DEVELOPMENTS UNDER THE EQUAL PAY ACT OF 196338

NEW LAWS AND REGULATIONS 39 The Rehabilitation Act of 1973, as Amended 39 Vietnam-Era Veterans' Readjustment Assistance Act of 1974 39 Title IX Regulations 39

APPENDIX A: Other Excerpts from Federal Court Decisions About Nondiscrimination in Employment 43

APPENDIX B: Texts of Regulations, as Amended 70

COURT CASES CITED 124

iii d Foreword

NondiscriminationinEmployment: Changing during training programs designed to help them Perspectives, 1963-1972 (Report No. 589) cov- understand and comply with these important fed- ered a ten-year period. At the request of many eral laws and regulations. Both groups can now Associates and with the welcome assistance of a be brought up to date by means of this supple- considerable number of subject-matter specialists mental volume. some of whom we like to refer to as "the court- The Conference Board plans to continue to decision-watchers"--Ruth Shaeffer has now up- investigate and report on this country's efforts: dated her fine research study. Reflecting recent (1) to move toward the goal of equal employ- rapid developments in the field of equal employ- ment opportunity regardless of race, color, reli- ment opportunity, this report, although almost as gion, sex, national origin, or age; and (2) to find long as the original, covers only the two-and-one- affirmative ways to help special groups, such as half-year period from January, 1973 through the handicapped and Vietnam-era veterans, ob- June, 1975. tain suitable jobs. Many Associates tell us that they have been providing the initial Nondiscrimination report to their EEO specialists and personnel managers at ALEXANDER B. TROWBRIDGE all locations as a ready reference manual. Some President have also been providing it to key line managers July 1,1975

FCREWORD Introduction

THE M1D-1960'smarked a watershed in Ameri- can efforts to deal with the problem of discrimi- nation in employment. Prior to that there had, Ongoing Monitoring of course, been many state and local FEP laws, "Court-decision-watchers" warn that most of which were poorly enforced. There had the federal laws dealing with nondis- also been some federal Executive Orders, includ- crimination in employment are complex ing one establishing a voluntary national program and that the interpretation of many of known as Plans for Progress. But the civil unrest their provisions by the courts is still in of the mid-1960's made it plain that these limited the developmental phase. They also note efforts had failed. We moved on to compulsion that many state and local nondiscrimina- based on major federal laws and regulations. tion laws need to be taken into account. Accordingly, they are not surprised that Conference Board Report No. 589, Nondis- many larger organizations are making crimination in Employment: Changing Perspec- sure that specialized legal counsel is tives, 1963-1972, traced a decade of experience available to their personnel executives. with: Ongoing monitoring of this important emerging field of the law is obviously The Equal Pay Act of 1963 needed. Title VII of the Civil Rights Act of 1964, as amended Executive Order 11246, as amended can be justified only by proving them necessary The Age Discrimination in Employment to the safe and efficient operation of the business. Act of 1967 (See Exhibit 1.) Federal courts have also held that affirmative action is required: (1) to seek That initial report highlighted the evolution in out and employ qualified members of all pro- the federal courts of a sweeping new legal defini- tected groups represented in the labor force being tion of what constitutes discrimination in em- drawn upon; and (2) to correct and avoid carry- ployment because of race, color, religion, sex, ing forward the effects of past discrimination, national origin, and age. especially among present employees. In 1971, in Griggs v. Duke Power Co.,' the But even though these fundamental principles Supreme Court unanimously ruled that it is the have now been firmly established, equal employ- consequences of an employer's actions, and not ment opportunity is by no means an area of set- his intent, that determine whether he is discrimi- tledlaw and corporatepractice. Much has nating. The Court held that if the policies, stand- happened in the two years since the original Con- ards or practicec of an employer or a union have ference Board study was published, including the an adverse effect on the employment opportuni- passage of new laws calling for affirmative action ties of any of the groups protected by law, they by government contractors to facilitate the hiring and advancement of the handicapped and of 401 U.S. 424 ( 1971). Vietnam-era veterans.

INTRODUCTION 1 Exhibit 1

The Supreme Court Interprets Title VII "The objective of Congress in the enactment of tests have continued to perform satisfactorily and Title VII is plain from the language of the statute. make progress in departments for which the high It was to achieve equality of employmentoppor- school and test criteria are now used. The promo- tunities and remove barriers that have operated in tion record of present employees who would not the past to favor an identifiable group of white be able to meet the new criteria thus suggests the employees over other employees. Under the Act, possibility that the requirements may not be practices, procedures, or tests neutralon their needed even for the limited purpose of preserving face, and even neutral in terms of intent,cannot the avowed policy of advancement within the be maintained if they operate to 'freeze' thestatus Company.... quo of prior discriminatory employment prac- "... We do not suggest that either the District tices." Court or the Court of Appeals erred in examining * * * 6. the employer's intent; but good intent or absence Congress did not intend by Title VII, of discriminatory intent does not redeem employ- however, to guarantee a job to every personre- ment procedures or testing mechanisms that oper- gardless of qualifications. In short, the Act does ate as 'built-in headwinds' for minority groups not command that any person be hired simply and are unrelated to measuring job capability. because he was formerly the subject of discrimi- "The Company's lack of discriminatory intent nation, or because he is a member ofa minority is suggested by special efforts to help the under- group. Discriminatory preference for any group, educated employees through Company financing minority or majority, is precisely and only what of two-thirds the cost of tuition for high school Congress has proscribed. What is required by training. But Congress directed the thrust of the Congress is the removal of artificial, arbitrary, and Act to the consequences of employment practices, unnecessary barriers to employment when the not simply the motivation. More that that, Con- barriers operate invidiously to discriminateon gress has placed on the employer the burden of the basis of racial or other impermissible classi- showing that any given requirement must havea fication. manifest relationship to the employment inques- "... The Act proscribes not only overt dis- tion." crimination but also practices that are fair in * * * form, but discriminatory in operation. The touch- "The Company contends that its general intelli- stone is business necessity. If an employment gence tests are specifically permitted by § 703(h) practice which operates to exclude Negroescan- of the Act. That section authorizes theuse of not be shown to be related to job performance, 'any professionally developed ability test' that is the practice is prohibited. not 'designed, intended, or used to discriminate "On the record before us, neither the high because of race.'... school completion requirement nor the general "The Equal Employment Opportunity Commis- intelligence test is shown to beara demonstrable sion, having enforcement responsibility, has is- relationship to successful performance of the jobs sued guidelines interpreting § 703(h) to permit for which it was used. Both were adopted,as the only the use of job-related tests. The administra- Court of Appeals noted, without meaningful study tive interpretation of the Act by the enforcing of their relationship to job-performance ability. agency is entitled to great deference.... Since Rather, a vice president of the Company testified, the Act and its legislative history support the Com- the requirements were instituted on the Compa- mission's construction, this affords goodreason to ny's judgment that they generally would improve treat the Guidelines as expressing the will of the overall quality of the work force. Congress." "The evidence, however, shows that employees * * * who have not completed high school or taken the "Nothing in the Act precludes the use of testing

2 THE CONFERENCE BOARD or measuring procedures; obviously they are use- factor, so that race, religion, nationality, and sex ful. What Congress has forbidden is giving these become irrelevant. What Congress has commanded devices and mechanisms controlling force unless is that any tests used must measure the person for they are demonstrably a reasonable measure of the job and not the person in the abstract." job performance. Congress has not commanded that the less qualified be preferred over the better --Excerpts from the decision of the Supreme qualified simply because of minority origins. Far Court of the United States,Griggs v. Duke Power from disparaging job qualifications as such, Con- Co.,401 U.S. 424 (1971). This case is discussed gress has made such qualifications the controlling on pages 18-20 of Report No. 589.

The following textincluding additional ex- unfolding chronology of events related to equal cerpts from federal court decisions about non- employment opportunity up through June 30. discrimination ( Appendix A) and additional texts 1975. And it highlights a broadening and deep- of various Constitutional provisions, and federal ening national effort to eliminate discrimination laws and regulations. as most recently amended in employment in all sectors of the economy for ( Appendix B)serves as a supplement to, not all the groups protected by the various federal a replacement of, Report No. 589. It brings the laws.

INTRODUCTION 3 Recent Developments under TitleVII of the Civil Rights Act of 1964,asAmended*

The AT&T Consent Decree were placed directly on first-levelmanagerial positions without even being consideredfor CHANGEHAS continued at a rapid pace in the AT&T's fast-track management development pro- field of Title VII law and employer and union gram (IMDP).' Immediate salary increases of practice. In January, 1973, just when the initial $100 per month were provided for those assessed Conference Board report on nondiscrimination as having satisfactory middle-management po- was going to press, the American Telephone and tential, and they were immediately placedon the Telegraph Company, and all associated Bell Sys- rosters of promotable employees. tem operating companies, entered into a sweep- Adjustment of the compensation of many ing consent agreement with the Equal Employ- nonmanagerial women to ensure equal pay for ment Opportunity Commission (EEOC) and the, equal work. U.S. Department of Labor. Among the provi- The right of Bell System companies touse sions of this agreement were: validated tests along with other job-relatedcon- siderations in assessing individual qualifications A model Affirmative Action Plan to be im- was expressly mentioned, but AT&T agreed not plemented inallBell System companies. The to use such testing as a justification for failing to plan not only included goals and timetables for meet the goals and timetables for any job classi- increasing the representation of minorities and fications. (A similar provision was included with women in job classifications where they were respect to the use of assessment center results. ) currently underutilized, but also provided for For their part, the federal administrative goals and timetables to correct the underrepre- agencies acknowledged that the model programs sentation of males in telephone operator and cler- included in the appendix to the consentagree- ical classifications. ment were consistent with Revised Order No. 4, Special transfer and promotion rights allow- and constituted a "bona fide seniority or merit ing basically qualified (not necessarily best qual- system" under Title VII. It was also acknowledged ified) minorities and women to move into either that the agreement was consistent with the Equal inside or outside craft jobs. Lump-sum payments Pay Act.' of up to $400 were provided for each individual AT&T did not admit that it had previously successfully making such a move. (Observersre- been violating any law, but the entire agreement garded these payments as being in lieu of possible was filed as a Consent Decree in a Federal Dis- hackpay.) trict Court, thus bringing its interpretation and Special evaluations at assessment centers to determine the potential for promotion to middle- I For a description of AT&T's assessment centers and management positions of a large number of fe- its IMDP program, sec pages 98-118 in Conference Board male college graduates who, when they had been Report No.558, Staffing Systems: Managerial and Profes- sional Jobs, by Ruth G. Shaeffer. hired during the period from 1965 through 1971, 2 To protect AT&T in the event of subsequent court chal- lengesor changesinadministrativeviews,appropriate "opinion letters" were issued.It was also agreed that the For the full text. see Appendix B. Many aspects of this charges of discriminationthat were pending before the law are discussed in Report No.589. Federal Communications Commission would be dropped.

4 THE CONFERENCE BOARD 5 compliance with its provisions under judicialsu- AT&T had by no means ceded its decision-making pervision. power with respect to selecting, transferring and promoting, and compensating its work force. In- The first-year cost of the settlement was esti- deed, a few even commented that, thanks to the mated at $38 million, with additional wage- provisions of its consent agreement, the giant increase costs of from $25 to $35 million being utility was probably in much better shapeon built in for the next five years. AT&T subsequent- EEO matters than most other companies. At ly reported that its actual costs were somewhat least AT&T knew with considerable assurance higher because so many of its femalemanagers what it couid and could not do under the exemp- were assessed as having satisfactory promotion tion for a "bona fide seniority or merit system" potential. included in Section 703 (h) of Title VII. But Reactions inthe business community were many did note that the agreement failed to pro- mixed. Some felt that AT&T had "givenaway vide AT&T with protection against suits brought the store." They were horrified not only by the by individuals and that these might lead to addi- size of the dollar amounts involved but also by tional, even conflicting, remedies including sub- the intrusion of federal agencies into matters they stantial backpay awards. had always thought of as being withinmanage- In May, 1975, AT&T and the federal admin- ment's sole discretion. But AT&T's executives in- istrative agencies signed a proposed Supplemental sisted they had only done what the law required; Order which, assuming it withstands a union chal- and many of those who had been watching the lenge and is approved by the Federal court, will gradual evolution of nondiscrimination law in the cost the company an estimated additional $2.5 federal courts agreed. million. The follow-up agreement is basedon the Furthermore,the"court-decision-watchers" failure of some of the Bell System operatingcom- pointed out that, while this consent agreement panies to achieve all the goals specified in the certainly put all employers on notice that discrim- 1973 consent agreement--despite "a substantial ination in employment could be very costly, the accomplishment" (see Exhibit 2). The follow-up actual dollar amounts involved needed to be kept agreement calls for "priority placement" of mi- in proper perspective. The Bell System companies norities and women incertain job categories had about 750,000 employees, over half of whom where the company had failed to achieve the were women, and AT&T's 1972 profits were $2.5 agreed-upon goals. It also adjusts some of the billion. Also, when compared with the $4 bil- 1973 goals for moving women andmen into non- lion that some feminists asserted AT&T owed in traditional jobs (based on unforeseen difficulties backpay to its female employees, the estimated in doing so); and it clarifies many provisions of costs of consent agreement seemed modest. the original agreement, including the relation of Some personnelspecialistsalso notedthat the "affirmativeactionoverride"toseniority Exhibit 2

"Substantial Progress" and "A SubstantialAccomplishment" "On January 18, 1973, a Consent Decreewas Government Coordinating Committee (GCC) agreed to by AT&T, on behalf of itself and the composed of representatives of The Equal Em- Bell System operating companies, and various ployment Opportunity Commission (Offices of government agencies establishing procedures to Compliance and the General Counsel), the De- assure equal employment opportunities for wom- partment of Labor (Office of the Solicitor, Divi- en and minorities at such Companies. In order to sions of Civil Rights and Fair Labor Standards, implement that Decree, the Plaintiffs establisheda and the Office of Federal Contract Compliance),

FEDERAL NONDISCRIMINATION REGULATIONS 5 the Department of Justice, and the General Serv- such groups were underutilized and intermediate icesAdministration.Similarly theDefendant targets were not being achieved; and (5)proce- AT&T added staff to its Human Resources De- dures were not adopted to deal with certain situa- velopment Department (HRD), to work with the tions where test disqualifications of applicants GCC and to implement the Decree. The GCC and from underutilized minoritygroups contributed HRD spent thousands of hours in order to assure to the failure to meet intermediate targetsfor compliance with the Decree. such groups. "It appears from an analysis of reports filed "Based on these reviews, the GCC enteredinto with the GCC that Beg System Companies made discussion with AT&T to resolve the problemsen- substantial progress. as shown in the following countered in achieving 1973 intermediatetargets. chart, during 1973: During these discussions, the GCC reviewedre- ports of 1974 target perfol mance. Thesereports Profile Net Gain % In- showed that system-wide, Bell operatingcompa- 1 /1/73in 1973crease nies achieved more than 90% of their 1974inter- Women, Second level mediate targets. management and "The combined 1973 and 1974 performance, above 5,168 1,280 25% as shown in the following chart, representsa sub- Women, Craft jobs 6.407 4,996 78% stantial accomplishment: Blacks, Second level management and Net Gain above 506 171 34% Profile in % In- B'acks, Craft 12,295 1.591 13% 12/31/741973 & 74crease Spanish-surnamed, Women, Second level Second level management and management and above 7.570 2,402 46% above 196 53 27% Women, Craft job 14,032 7.625 119% Spanish-surnamed. Blacks, Second level Craft jobs 5,267 1,138 22% management and Other minorities above 921 415 82% (all jobs) 5,825 1.489 26% Blacks. Craft jobs 14,073 1,778 14% Males, Clerical and Spanish-surnamed, Operator jobs 10,310 8.369 81%" Second level management and * * * above 379 183 93% "Nevertheless, the 1973 reviews indicated that Spanish-surnamed, 1973 intermediate targets were not met formany Craft jobs 7,082 1,815 34% job classifications in many companies. The GCC Other minorities concluded that these failures were attributable (all jobs) 8.397 2,572 44% to the following causes: (1) in some companies Males, Clerical and initially there was ineffective management control Operator jobs 25,456 15,146147%" of the program; (2) as noted above, the initial monitoring controls were not effective; (3) in Excerpts from the Interim Report submitted in some companies the 'affirmative action override' May, 1975, to the United States District Court, was used with insufficient frequency to meet in- Eastern District, Pennsylvania, concerningprog- termediate targets;... (4) in some cases, greater ress under the original AT&T Consent Decree. efforts could have been made affirmatively tore- This report accompanied the proposed Supple- cruit particular race, se': or ethnicgroups where mental Order.

6 THE CONFERENCE BOARD rights, and what constitutes "good faith effort" ciliation or consent agreements with respect to in general, and especially when it comes to mov- employment discrimination that were publicized ing women into nontraditional jobs. (See Ap- during the next year were those signed by the pendix A, pages 45 to 49, for excerpts from the Bank of California, Pacific Gas and Electric Com- agreement.) pany, and El Paso Natural Gas Company. The Bank of California consent agreement is Other Conciliation and unusual in several respects, and it has since pro- Consent Agreements vided the basic pattern for similar agreements with other major California banks, such as the The lessons of the initial AT&T consent decree Bank of America and Security Pacific National and of numerous Circuit Court decisions (see Bank. It was worked out by the bank with repre- Exhibits 3 and 4) were taken to heart by some sentativesoftheNationalOrganiiationfor other major employers. Among the broad con- Women (NOW), the National Asso_:ation for Exhibit 3

The Circuit Courts Call for Backpay Awards "The role that backpay plays in employment * discrimination cases is twofold. First,.. it pro- "The finding of discrimination by the district vides compensation for the tangible economic loss court, in addition to the nature of the relief (com- suffered by those who are discriminated against. pensatory as opposed to punitive), and the clear Secondly, and even more importantly, because intent of Congress that the grant of authority un- backpay awards act as a deterrent to employers der Title VII should be broadly read and applied and unions, such awards play a crucial role in the mandate an award of back pay unless exceptional remedial process... .They provide the spur or circumstances are present." catalyst which causes employers and unions to self-examine and to self-evaluate their employ- Excerpt from the decision of the U.S. Court of ment practices and to endeavor to eliminate, so Appeals, Sixth Circuit (Cincinnati) Head v. Tim- far as possible, the last vestiges of an unfortunate ken Roller Rearing Company, 486 F. 2d 870, and ignominious page in this country's history. (1973). If backpay is consistently awarded, companies and unions will certainly find it in their best interest to "Title VII... in authorizing courts to grant remedy their employment procedures without equitable relief to those who might be injured by court intervention, whether that intervention is its breach, expressly and impliedly includes the initiated by the Government or by individual em- discretion to award back pay. Given this court's ployees. We think that the courts have at this holding that lain inextricable part of the restora- point sufficiently delineated what constitutesac- tion to prior [or lawful] status is the payment of ceptable and nonacceptable employment practices back wages properly owing to the plaintiffs'... in the areas of seniority and hiring so that neither it becomes apparent that this form of relief may employer nor union can in good faith claim that not properly be viewed as a mere adjunct of some they are unaware of what standards are expected more basic equity. It is properly viewed as an of them under Title VII of the Act." integral part of the whole of relief which seeks not to punish the respondent but to compensate Excerpt from the decision of the U.S. Court of the victim of discrimination." Appeals, Eighth Circuit (St. Louis), U.S. v. N.L. Industries, Inc. 479 F. 2d 354 (1973), denied re- Exceept from the decision of the U.S. Court of hearing and rehearing en banc., 479 F. 2d 382 Appehls, Fifth Circuit, (New Orleans) U.S. v. (1973). Georgia Power Company, 474 F. 2d 906 (1973).

FEDERAL NONDISCRIMINATION REGULATIONS 7 As We Go to Press

On June 25, 1975 the Supreme Court "It follows that, given a finding of unlaw- of the United States issued its decision ful discrimination, backpay should be de- in Albemarle Paper Co.v. Moody. (Nos. nied only for reasons which,if applied 74-389 and 74-428. 10 FEP Cases 1181). generally, would not frustrate the central The following excerpts deal withback- statutory purposes of eradicating dis- pay awards in Title VII cases: crimination throughout the economy and making persons whole for injuries suffered "... As the Court observed in Griggsv. through past discrimination. The courts of Duke Power Co.,...the primary objective appeals must maintain a consistent and [of Title VII] was a prophylacticone: principled application of the backpaypro- vision, consonant with the twin statutory "It was to achieve equality ofemploy- objectives, while at the same timerecog- ment opportunities andremove barriers nizing that the trial court will often have the that have operated in the past to favoran keener appreciation of these facts and cir- identifiable group of white employeesover cumstances peculiar to particular cases. other employees." "The District Court's stated grounds for denying backpay in this case must be Backpay has an obvious connectionwith tested against these standards. The first this purpose. If employees faced onlythe ground was that Albemarle's breach of prospect of an injunctive order, they would Title VII had not been in 'bad faith'. This is have little incentive to shun practicesof not a sufficient reason for denying back- dubious legality.. .. pay. . If backpay were awardable only "It is also the purpose of TitleVII to upon a showing of bad faith, the remedy make persons whole for injuries suffered would become a punishment for moral on account of unlawful employment dis- turpitude, rather than a compensation for crimination. This is shown by thevery fact workers'injuries. This would read the that Congress took care to arm the courts 'make whole' purpose right out of Title VII, with full equitable powers." for a worker's injury is no less real simply because his employer did not inflict it in the Advancement of Colored People ( NAACP), a special employee training and development pro- and others, without the direct involvement of fed- ram for minorities and women. A concerted ef- eral enforcement agencies, but it was nonetheless forttolocatequalifiedminority and female tiled in a federal district court. candidates for vacancies on the bank's hoard of 'File bank agreed to try to achieve parity be- directors was also pledged. tween the representation of minorities in its work Since then many other broad conciliation and force and whatever the minority population of consent agreements have been signed. But not the state turns out to he at the end ofI 980. The all companies agree that, given their particular goals established for increasing the representa- circumstances, this represents a desirable strategy. tion of minorities and women in management One top-level industrial relations executivecom- are rigorous. For example. by the end of 1982 mented: women are expected to hold =In percent of the entry- and second-level management jobs. 35 per- "There's no reason for companies to rollover cent of the middle-management jobs, and 16 per- and play dead on these matters. Wc ought to be cent of the senior-management jobs. A sirable lighting every inch of the way. In particularwe fund has been established which will he spenton should resist the idea that we must always admit

8 THE CONFERENCF. BOARD tad faith'. Title VII is not concerned with rendered is entitled, even if the party the employer's 'good intent or absence of has not demanded such relief in his discriminatory intent' for 'Congress di- pleadings.' rected the thrust of the Act to the conse- quences of employment practices, not But a party may not be 'entitled' to relief if simply the motivation'. ...To condition its conduct of the cause has improperly the awarding of backpay on a showing of and substantially prejudiced the other tad faith' would be to open an enormous party. The respondents here were not chasm between injunctive and backpay re- merely tardy, but also inconsistent, in de- lief under Title VII. There is nothing on the manding backpay. To deny backpay be- face of the statute or in its legislative his- cause a particular cause has been prose- tory that justifies the creation of drastic cuted in an eccentric fashion, prejudicial to and categorical distinctions between the other party, does not offend the broad those two remedies. purposes of Title VII." "The District Court also grounded its denial of backpay on the fact that the re- In a footnote elsewhere in the deci- spondents initially disclaimed any interest sion the Court also stated: in backpay, first asserting their claim five years after the complaint was filed. The "The petitioners also contend that no court concluded that the petitioners had backpay can be awarded to those un- been 'prejudiced' by this conduct.. ." named parties in the plaintiff class who "It is true that Title VII contains no legal have not themselves filed charges with the bar to raising backpay claims after the EEOC. We reject this contention. The complaint for injunctive relief has been courts of appeals that have confronted the filed, or indeed after a trial on that com- issue are unanimous in recognizing that plaint has been had. Furthermore, Fed. backpay may be awarded on a class basis Rule Civ. Proc. 54 (c) directs that under Title VII without exhaustion of ad- 'every final judgment shall grant the re- ministrative procedures by the unnamed lief to which the party in whose favor it is class members." we are guilty of any class-type discrimination arose primarily from an acknowledged need. in just because of the numbers. Our company has light of court decisions dealing with seniority, to looked into our past personnel actions carefully. shift over to plantwide seniority systems in place and our records show there are many different of discriminatory departmental seniority systems. valid reasons why various individuals have not and to provide transfer and promotion rights that been hired. promoted and so on. Sometimes they protect existing compensation and job rights of haven't even wanted those jobs. Let the EEOC minorities and women while bringing them up take us to court if they want to. We're not going to their "rightful place- in the more desirable toin a class-type consent agreement. We're job-progression lines." ,going to fight.- Rut both agreements go far beyond these is- sues. For example. the steel industry agreement In1974. two exceptionally broad consent which has been signed by all but one of the ma- agreements were signed that attempted to settle significant EFO problems on an industrywide See. foi tnample. Unitcd .tatc%r. iiircd .Stares.Steel basis. One was in the steel industry and the other Corpora/owI U.S. Di,trict ('ourt. Northern 1)1.trict of ..\1a- halm. 371F. Stipp.1045I 1973 ).;,Vt ell,tsthe %arum. in part of the trucking industry. I3oth agreements ,enioi -related referred to in Report No. Stitt.

FFHFRAL %0HMSCRIMINATIONI RE:. l_JLATIOrJS As We Go to Press On June 12, 1975 the U.S. Court of driver complement, the facts rebut the in- Appeals, Fourth Circuit (Richmond) is- ference in Barnett's case and plainly show sued its decision in Barnettv.W. T. that he simply came up short when offered Grant Co. (10 FEP Cases 1057). The fol- a special opportunity." lowing excerpts deal with whethera black employee, whose own individual claim of discrimination in transfer and ".. .Viewed broadly, Barnett's suit is an promotion was denied can representa 'across the board' attack onalldis- broader class including black applicants. criminatory actions by defendants on the ground of race, and when so viewed it fits "Barnett began work with Grant in the comfortably within the requirements of summer of 1970 as a warehouseman and Rule 23 (b) (2). ... We believe such a occasional clerk in the Consolidation Op- characterization is more consonant with eration. In 'the fall he became a switcher, the broad remedial purposes of Title VII moving and parking trailers at the grant itself, and that the district court's less facilities and driving trailers to other truck- charitable view, under which Barnett could ing terminals nn the Charlotte area. But as a t;lass representative challenge only his real desire was to be an over-the-road those specific actions taken by the de- driver in charge of tractor-trailer rigs mak- fendants toward him, would undercut ing long hauls on the open highway. Grant those purposes." employed at the time 27 such drivers, all "The Fifth Circuit has recently reiterated of them white. Barnett's individual charge its4milar approach to class actions in of discrimination is that he was denied the empoyment discrimination cases. In Long company's normal 60-day probationary v. Sapp, 502 F. 2d 34 (5th Cir. 1974), the period for fledgling over-the-road drivers individualplaintiff challenged her dis- because he was black. The record, how- charge from employment as racially moti- ever, amply supports the district court's vated. In her class action, however, she finding that instead of suffering invidious sought to represent not only all blackper- discrimination Barnett may actually have sons discharged by defendant, but also received preferential treatment." 'all black persons who have applied for employment with the defendant or who would have applied for employment had the defendants not practiced racial dis- "On this state of facts the district judge crimination in employment and recruiting." found 'that the refusal of the defendant to The district court dismissed the second transfer Barnett and promote him to the portion of the class action on the ground job of probationary road driver was not that the plaintiff as a discharged employee based upon racial grounds, but was based was not a member of the named class. upon a reasonable business decision and The Fifth Circuit reversed, stating: judgment as to his lack of maturity, lack of experience, tender age, and not yet stable '[Plaintiff] directs her claims at racially emotional outlook'. Even though we be- discriminatory policies that she alleges lieve, unlike the district court, that an in- pervade all aspects of the employment ference of racial discrimination should be practices of [defendant]. Having shown drawn from Grant's all-white over-the-road herself to be black and a former em-

10 THE CONFERENCE BOARD ployee,...she occupies the position of the Union have negotiated a new agree- one she says is suffering from the al- ment providing for carry-over seniority be- leged discrimination. She has demon- tween the Consolidation and Fleet Opera- strated the necessary nexus with the tions. Based on these changes the district proposed class for membership therein. court stated that Barnett's suit may, there- As a person aggrieved, she can repre- fore, have achieved its essential purpose sent other victims of the same policies, which in such matters is usually to bring whether or not all have experienced dis- about change rather than exact retribution crimination in the same way.'. for past transgressions.' "We agree with the district court's sen- "Like the plaintiff in Long, Barnett di- timent, but in equal employment opportu- rected his attack at discriminatory policies nity cases a court cannot abdicate to of defendants manifested in various ac- defendants' good faith its duty of insuring tions, and as one who had allegedly been removal of all vestiges of discrimination. aggrieved by some of those actions he This cause will therefore be remanded to had demonstrated a sufficient nexus to the district court with instructions to con- enable him to represent others who have duct an immediate inquiry into defendants' suffered from different actions motivated current practices with respect to Fleet Op- by the same policies." eration hiring,seniority, carry-over on inter-operations transfers, and recruitment and evaluation of supervisory personnel. "[The company and union's] specific Should the court find that any of the dis- practices and policies go far toward ex- approved practices survive in any degree, plaining the absence of blacks among it shall forthwith enjoin their continuation. If both Grant's over-the-road drivers and its the court finds that defendants have com- supervisory personnel, and when com- pletely abandoned the offending practices bined with Barnett's statistical evidence and replaced them with policies tending to they establish a strong case of discrimina- remove their discriminatory effects, we tion forbidden by Title VII. We hold that leave it to the district court's considered Barnett proved discrimination with respect discretion whether to issue an injunction to to potential black driver applicants and insure the continuation of the new policies with respect to black applicants for super- or instead to retain this case on its docket visory positions." for a reasonable time and then dismiss it if defendants appear to be pursuing their

policies in total good faith.... "The district court found evidence that "Regardless what the district court's in- since Barnett instituted this suit defend- quiry shows, Barnett should recover his ants had 'begun to take more aggressive costs and reasonable counsel fees. ... steps to recruit black employees in the var- These may be taxed against defendant W. ious departments of the enterprise.' We T. Grant Company and/or against Interna- presume this includes the over-the-road tional Brotherhood of Teamsters and driver contingent, and we note in this re- Teamsters Local 71, and may be allocated gard that Grant has employed two black among the defendants in such proportions drivers during the pendancy of this suit. In as to the district court may seem just and addition, we are informed that Grant and proper. .."

FEDERAL NONDISCRIMINATION REGULATIONS 11 Exhibit 4

Court-ordered Goals and Hiring Ratios to Remedy Past Discrimination "Once a violation of Title VII is established, members enjoying such rights would be higher. the district court possesses broad power as a No longer are we dealing with an 'imbalance' at- court of equity to remedy the vestiges of past dis- tributable to non-discriminatory causes. The ef- criminatory practices.... ects of such past violation of the minority's rights "Eight circuits, including our own, have con- cannot be eliminated merely by prohibiting future strued this delegation of broad equitable power discrimination, since this would be illusory and in- as authorizing the district court to establish goals adequate as a remedy. Affirmative action is essen- for the purpose of remedying the effects of past tial. Since the nature and extent of such action discriminatory conduct.... Despite the existence depends on the facts of each case, it must of of some tension between the constitutional man- necessity be left to the sound discretion of the date of non-discrimination, on the one hand, and trial judge...." the use of goals as a kind of 'reverse discrimina- tion,' on the other, the Supreme Court has recog- nized that 'mathematical ratios,' although for- "Nor are remedial goals limited to any specific bidden if specified as a permanent or inflexible or prescribed form. The precise method of reme- requirement, may serve as a 'useful starting point dying past misconduct is left largely to the broad in shaping a remedy to correct past constitutional discretion of the district judge. Goals have been violations.' " expressed in terms of specific numbers or ratios ... or percentages. ... Goals have also been mandated with respect to apprenticeship pro- "At first blush a court-ordered racial goal might grams." appear to violate the language of § 703(j) of the * Civil Rights Act which provides that the Act shall "There remains the question whether the 30% not be interpreted to require an employer `to grant goal fixed by the court exceeded the bounds of its preferential treatment to any individual or group discretion. In considering that issue we must be on account of an imbalance which may exist with guided by the principle that the objective of a respect to the total number or percentage of per- remedial quota is a limited one. It seeks to place sons of any race ... in comparison with the total eligible minority members in the position which number of percentage of persons of such race. .. the minority would have enjoyed if it had not in any community.%.. been the victim of discrimination. Of course any "Where a racial imbalance is unrelated to dis- attempt to reconstruct what would have happened crimination, § 703(j) recognizes that no justifica- in the absence of discrimination is fraught with tion exists for ordering that preference be given considerable difficulty. But the court is called to anyone on account of his race or for altering upon to do the best it can with the data available an existing hiring system or practice. But where to it." the imbalance is directly caused by past discrimi- natory practices it is readily apparent that if the Excerpts from the decision of the U.S. Court of rights of minority members had not been violated, Appeals, Second Circuit (New York), Riosv. many more of them would enjoy those rights than Enterprise Assn. Steamfitters Local 638 of U.A., presently do so and that the ratio of minority 501 F. 2d 622 (1974). jor steel companies, as well as by the United with employee selection criteria,etc. Further- Steelworkers of Americaalso specifies goals and more, it provides for a special Implementation timetables for increasing minority and female Committee at each major plant and for anon- representationincertain job categories, deals going industrywide Audit and Review Commit-

12 THE CONFERENCE BOARD tee (which includes a federal government repre- preme Court has held that an adverse arbitration sentative and must act unanimously to avoid the decision does not preclude an employee from possibility of a court challenge of its actions) to seeking Title VII relief afresh in the federal allocate $31 million in backpay and to oversee courts, the Court's stated reason for holding so is implementation of the agreement, under con- to encourage the possibility of voluntary com- tinuing court supervision.* The Federal Govern- ment, on its part, has agreed to advise other courts in which individuals bring suits on matters Exhibit 5 (except backpay) covered by the consent agree- ment, of the existence of this very broad agree- ment, and to suggest to those courts that the Union Liability for Backpay individual'sactioniseitherinappropriate or "Plaintiff Carey does not have to prove that either or both of the unions discriminated against should be raised in the original court. black employees. All that need be shown is that the employer discriminated against black employ- Labor Relations Aspects ees prior to the passage of the Act and that the of EEO Matters present system perpetuates that discrimination. Labor relations specialists point out that the When the employer or union has discriminated in the past, and its present policies renew or ex- steel and trucking industry consent agreements aggerate that discrimination, those policies must arise out of the collective-bargaining arrange- yield unless there is an overriding legitimate, non- ments in those industries. They do not expect the racial purpose,. . The Civil Rights Act of 1964 industrywide approach to spread to largely non- imposes on employerswith the assistance and unionized industries, or to industries where col- cooperation of labor representativesan affirma- lective bargaining occurs on a plant, geographi- tive duty to devise and implement pertinent ob- cal area, or company basis. Nonetheless, they find jective criteria for determining which applicants these agreements notable for their attempt to for promotion or transfer are qualified to fill par- bringvirtuallyallequal employment matters ticular vacancies.... Asparties to this action, the within the framework of the existing collective- Unions must accommodate themselves to revi- sions in their contracts rules and regulations, bargaining relationship, including the grievance necessary to assure compliance with the Act." machinery-arbitration procedurebut with the Federal Government still very much involved. * They point out that unions, as well as em- "Because the decision to deny back pay was ployers, are covered by Title VII and have, in- based on the good faith of Greyhound and the deed, already been held either partially or wholly unions, the preceding cases appear to mandate a liable for backpay awards in some cases (see reversal on this point. We remand for judicial de- Exhibit 5). Moreover, under the National Labor termination of the amount of back pay due Carey and that liability, once ascertained, shorld be Relations Act (NLRA), as amended, a union jointly assessed against Greyhound and the two has a duty to represent all individuals within the unions, as were the attorney's fees and expenses. bargaining unit fairly (see Exhibit 6), and in- A union's role as a party to a collective bargain- creasing numbers of union contractsinclude ing agreement can be legally sufficient to impose nondiscrimination clauses. Also, while the Su- back pay liability on the union if the agreement violates Title VII. ." 4 To receive the allocated backpay. individuals arere- quired to sign a release covering any other claims or lia- bility for past discrimination on the part of the company Excerpts from the decision of the U.S. Court of or the union. The release provisions in both the steel indus- Appeals, Fifth Circuit (New Orleans), Carey v. try agreement and the trucking industry agreement are being Greyhound Bus Co., Inc., 500 F. 2d 1372, challenged in the courts. Also. the major unions inthe (1974). trucking industry have not consented to the trucking agree- ment.

FEDERAL NONDISCRIMINATION REGULATIONS 13

IL.j Exhibit 6

Employment Discrimination Laws and the NLRA "As thewar,against diseriminatory employment of. 1866] it is hardly likely that the NLRA didso. practices has intensified, commentators have faith- Moreover, if concurrent jurisdiction over employ- fully 'cittalogued the extianding number of weap- ment discrimination exists between the NLRA ons available to complaining Combatants. Accord- and Title VII, we pe:cr,ive no reason why resort ing to one observer 'a single factual situationmay to the former should be a prerequisite to suitun- result in a 'charge of employnient discrimination der § 1981. The three statutory remedies exist based on race which may be pursued underat separately and independently and employment least eight possible theories for relief in six dif- discrimination may be prosecuted simultaneously ferent forums.' Inevitably, the methods forcom- in the courts and before the NLRB. batting employment discriminationfit together "We understand that, as is sometimes thecase, less as a seamless web than as a patchwork quilt the simple answer, though sufficient,may be less of concurrent jurisdiction, overlapping remedies, than totally satisfying. We certainly needno ex- and even uncomfortable and confusinggaps. The traordinary powers of divination to foresee that result has been a tangled briarpatch through which increased use of §1981 by litigants anda more even the most intrepid guide may have difficulty enthusiastic wielding of the unfair labor practice advancing. remedy .against employment discrimination by the "We do not, of course, lack for a chorus out- NLRB will raise the deferral issue or some vari- lining and evaluating the comparative advantages ation of it again, especially where, unlike here, and disadvantages of the various remedies for the Title VII is also available as a remedy.. . . struggling protagonists. Nor do we lack hardy and ". .. In the war against employment discrimi- redoubtable engineers willing to suggest schemes nation our agony over tactical problems lying for bringing some order out of the seeming chaos. ahead of us must not force us to retreat from all Notwithstanding the wealth of assistance supplied battlefields. Rather, we must continue to evolve by others, however, it is the courts who in the a strategy for deploying multiple skirmishes to- first instance must resolve the difficult andper- ward a common objective. Congress did not in- plexing problems created by the existence ofso tend to channel all offensives througha single many alternate routs (sic) toward the same final salient, and in this battle we approvemaneuvers goal. And because of the constitutional restraints on two fronts. on our authority, as well as our healthy respect "On remand the district court shouldcontour for the dangers inherent in chartingcourses to the relief awarded in this suit to that decreedin provide safe passage in the futureamong shoals the NLRA suit to ensure that plaintiff-appellee only dimly perceived, if at all, in the present,our tastes the fruit of his victory under each but does problem solving must proceed in a less grandiose not enjoy any windfall or unjust enrichment from fashion." the overlapping remedies."

Excerpts from the decision of the U.S. Court of ".. . If Title VII of the Civil Rights Act of Appeals, Fifth Circuit (New Orleans),Guerra v. 1964 appended no jurisdictional prerequisitesor Manchester Terminal Corporation,498 F. 2d procedural limitations to... [The Civil Rights Act 641 (1974). pliance or settlement of Title VII claims (see quickly as possiblebefore theycan fester or Exhibit 7). spread to infect a whole protected group's rela- Many knowledgeable equal employmentop- tionship with the employer. Some companies have portunity coordinators concur that it is desirable even established special telephone "hot lines" for to discover and root out EEO complaints justas disgruntled applicants and employees touse; they

14 THE CONFERENCE BOARD Exhibit 7

Arbitration Does Not Preclude a Title VII Suit "Title VII does not speak expressly to the rela- * tionship between federal courts and the grievance- arbitrationmachinery ofcollective-bargaining ". .. But other facts may still render arbitral agreements. It does, however, vest federal courts processes comparatively inferior to judicial proc- with plenary powers to enforce the statutory re- esses in the protection of Title VII rights. Among quirements; and it specifies with precision the these is the fact that the specialized competence jurisdictional prerequisites that an individual must of arbitrators pertains primarily to the law of the satisfy before he is entitled to institute a lawsuit. shop, not the law of the land.. .. Parties usually ... There is no suggestion in the statutory scheme choose anarbitrator because they trusthis that a prior arbitral decision either forecloses an knowledge and judgement concerning the de- individual's right to sue or divests federal courts mands and norms of industrial relations. On the of jurisdiction. other hand, the resolution of statutory or consti- "In addition, legislative enactments in this area tutionalissuesisa primary responsibility of have long evinced a general intent to accord courts, and judicial construction has proven espe- parallel or overlapping remedies against discrimi- cially necessary with respect to Title VII, whose nation. In the Civil Rights Act of 1964... Con- broad language frequently can be given meaning gress indicated that it considered the policy against only by reference to public law concepts." discrimination to be of the 'highest priority'.... Consistent with this view, Title VII provides * * for consideration of employment-discrimination "A deferral rule also might adversely affect the claims in several forums.... And, in general, sub- arbitration system as well as the enforcement mission of a claim to one forum does not preclude scheme of Title VII. Fearing that the arbitral a later submission to another. ... Moreover, the forum cannot adequately protect their rights under legislative history of Title VII manifests a congres- Title VII, some employees may elect to bypass sional intent to allow an individual to pursue hide- arbitration and institute a lawsuit. The possibility pendently his rights under both Title VII and other of voluntary compliance or settlement of Title VII applicable state and federal statutes. The clear claims would thus be reduced, and the result inference is that Title VII was designed to supple- could well be more litigation, not less. ment, rather than supplant, existing laws and in- "We think, therefore, that the federal policy stitutions relating to employment discrimination. favoring arbitration of labor disputes and the fed- In sum, Title VII's purpose and procedures eral policy against discriminatory employment strongly suggest that an individual does not forfeit practices can best be accommodated by permitting his private cause of action if he first pursues his an employee to pursue fully both his remedy un- grievance to final arbitration under the nondis- der the grievance-arbitration clause of a collec- crimination clause of a collective-bargaining agree- tive-bargaining agreement and his cause of action ment." under Title VII. The federal court should con- sider the employee's claim de novo. The arbitral * * * decision may be admitted as evidence and ac- "Moreover, the grievance-arbitration machin- corded such weight as the court deems appro- ery of the collective-bargaining agreement re- priate." mains a relatively inexpensive and expeditious means for resolving a wide range of disputes, in- Excerpts from the decision of the Supreme cluding claims of discriminatory employment Court of the United States, Alexander v. Gardner- practices." Denver Co., 415 U.S. 36 (1974).

FEDERAL NONDISCRIMINATION REGULATIONS 15 Exhibit 8

Title VII Discrimination Againstan Individual "The critical issue before us concerns the order traffic hour. Nothing in Title VII compelsan em- and allocation of proof in a private, single-plaintiff ployer to absolve and rehire one who has engaged action challenging employment discrimination. in such deliberate, unlawful activity against it... . The language of Title VII makes plain the pur- "Petitioner's reason for rejection thus suffices pose of Congress to assure equality of employ- to meet the prima fade case, but the inquiry must ment opportunities and to eliminate those dis- not end here. While Title VII does not, without criminatory practices and devices which have more, compel rehiring of respondent, neither does fostered racially stratified job environments to it permit petitioner to use respondent's conduct the disadvantage of minority citizens.... as a pretext for the sort of discrimination prohib- "There are societal as well as personal interests ited by § 703(a) (1). On remand, respondent on both sides of this equation. The broad, over- must, as the Court of Appeals recognized, be riding interest shared by employer, employee, and afforded a fair opportunity to show that petition- consumer, is efficient and trustworthy workman- er's stated reason for respondent's rejectionwas ship assured through fair and racially neutralem- in fact pretextual. Especially relevant to sucha ployment and personnel decisions. In the imple- showing would be evidence that white employees mentation of such decisions, it is abundantly clear involved in acts against petitioner of comparable that Title VII tolerates no racial discrimination, seriousness to the `stall-in' were neverthelessre- subtle or otherwise." tained or rehired. Petitionermay justifiably refuse a * * to rehire one who was engaged in unlawful, dis- ruptive acts against it, but only if this criterion is "The complainant in a Title VII trial must applied alike to members of allraces. carry the initial burden under the statute of estab- "Other evidence that may be relevant to any lishing a prima facie case of racial discrimination. showing of pretextuality includes factsas the peti- This may be done by showing (i) that he belongs tioner's treatment of respondent during his prior to a racial minority; (ii) that he applied and was term of employment, petitioner's reaction, ifany, qualified for a job for which the employerwas to respondent's legitimate civil rights activities, seeking applicants; (iii) that, despite his qualifi- and petitioner's general policy and practice with cations, he was rejected; and (iv) that, after his respect to minority employment. On the latter rejection, the position remained open and theem- point,statisticsas to petitioner's employment ployer continued to seek applicants frompersons policy and practice may be helpful toa determi- of complainant's qualifications.... nation of whether petitioner's refusalto rehire "The burden then must shift to the employer respondent in this case conformed toa general to articulate some legitimate. nondiscriminatory pattern of discrimination against blacks.... In reason for respondent's rejection.... Here pe- short, ... respondent must be given a full and titioner has assigned respondent's participation in fair opportunity to demonstrate by competent evi- unlawful conduct against it as the cause for his dence that the presumptively validreasons for his rejection. We think that this suffices to discharge rejection were in fact a coverup fora raciall- dis- petitioner's burden of proof at this stage and to criminatory decision." meet respondent's prima facie case of discrimina- tion. ". .. Respondent admittedly had taken part in Excerpts from the decision of the Supreme a carefully planned 'stall-in,' designed to tie up Court of the United States, McDonnell Douglas access and egress to petitioner's plant at a peak Corp. v. Green. 411 U.S. 792 (1973).

16 THE CONFERENCE BOARD actively encourage anyone who feels discriminated results-oriented thrust of the Griggs decision in against in any way to bring the matter to their that the individual needed to be "qualified" be- attention very promptly, whether through the fore being able to establish a prima facie case grievance procedure or not. Similarly, some are of discrimination. But others pointed out that if instructing all supe:visors that they must bring the employer then asserts the individual is not any comment or gripe they hear about discrimina- really qualified, the company still is in the posi- tion or "unfairness" to the attention of the EEO tion of having to establish the business necessity coordinator immediately. These companies say for any unmet qualifications that have a disparate they want to investigate and, if at all possible, to impact on the protected group to which the indi- settle such matters very quickly without resort to vidual belongs. Given the strong and broad lan- any outside agency or the courts. guage at both the beginning and the end of the In justifying such an approach, one industrial opinion, most doubted that the Supreme Court relations director said: had undergone any change of mind. We had one discrimination case we took to court. We lost. The backpay involved was only $31,000, but our attorneys' fees ran over a quar- Testing and Other Employee ter of a million dollars!" Selection Procedures Another commented: Following the Griggs decision by the Supreme "We have a class action suit in court now. It's Court, the federal courts have been giving "great costing us a fortune both in time and money. Yet deference" to the EEOC's Guidelines on Em- I'm quite sure initially it could have been settled ployee Selection Procedures. (See Appendix B for an apology and one-day's backpay." in Report No. 589.)Court-decision-watchers point out that once the fact that a particular test And another said: or selection practice has a discriminatory effect "I never would have believed it was going to has been established, then various circuit court turn out this way, but the whole EEO field is decisions (see Appendix A, pages 49 to 51) have really a lot like labor relations. You've got to given approval to such specific Guideline pro- negotiate agreements you can live with. And even visions as: in handling complaints, you don't take big risks over unimportant details. You settle." (I) The need for job analysis as a basis for supervisory ratings in validation studies to estab- lish the job-relatedness of tests. Individual Suits under Title VII (2) The need to consider reasonable alterna- Because the Supreme Court's landmark deci- tives that would have less discriminatory effect sion in Griggs v. Duke Power Co. makes it plain before claiming an established hiring or promo- that Title VII prohibits discrimination against tion practice is a matter of business necessity. whole classes or categories of peoplethe peo- (3) The needto conduct criterion-related ple of some particular race, color, religion, sex validity studies, if they are feasible, rather than or national origin (see Exhibit 1)there was simply comparing the content of the test to the confusion about how the law should be applied job content. in cases where an individual brought a suit al- (4) The need to conduct test validation studies leging employment discrimination. Lower federal that take into account the way the tests are ac- courts requested guidance on the matter, and the tually being used by the company. Supreme Court provided it in McDonnell Doug- las Corp. v. Green (see Exhibit 8). (The first two matters are involved in Albemarle Some court-decision-watchersthoughtthey Paper Co. v. Moody, a case the Supreme Court detected a slight backing away from the wholly will decide later this year. )

FEDERAL NONDISCRIMINATION REGULATIONS 17 As We Go to Press On June 25, 1975, the Supreme Court enforcing agency,' and consequently they of the United States issued its decision are 'entitled to great deference.' in Albemarle Paper Co.v. Moody (Nos. "The message of these Guidelines is 74-389 and 74-428, 10 FEP Cases 1181). the same as that of the Griggscase The following excerpts deal withem- that discriminatory tests are impermissible ployment testing: unless shown, by professionally accepta- "In Griggs v. Duke Power Co. . . .this ble methods, to be 'predictive ofor sig- Court unanimously held that Title VII for- nificantly correlated with important ele- bids the use of employment tests that are ments of work behavior which compriseor discriminatory in effect unless theem- are relevant to the job or jobs for which ployer meets 'the burden of showing that candidates are being evaluated.' any given requirement [has]... amani- "Measured against the Guidelines, fest relation to the employment inques- Albemarle's validation study is materially tion.' .This burden arises, of course, defective in several respects: only after the complaining partyor class has made out a prima facie case of dis- "(1) Even if it had been otherwise ade- crimination has shown that the tests in quate, the study would not have 'validated' question select applicants for hireor the Beta and Wonderlic test battery for all promotion in a racial pattern significantly of the skilled lines of progression for which different from that of the pool of appli- the two tests are, apparently, nowre- cants. ...If an employer does then meet quired....The study in this case involved the burden of proving that its testsare 'job no analysis of the attributes of, or the par- related,' it remains open to the complain- ticular skills needed in, the studied job ing party to show that other testsor selec- groups. There is accordingly no basis for tion devices, without a similarly undesir- concluding that 'no significant differences' able racial effect, would also serve the exist among the lines of progression,or employer's legitimate interest in 'efficient among aistinct job groupings within the and trustworthy workmanship.'... Such a studied lines of progression. Indeed, the showing would be evidence that theem- study's checkered results appear tocom- ployer was using its tests merely as a 'pre- pel the opposite conclusion. text' for discrimination.... In the present "(2) The study compared testscores case, however, we are concerned only with subjective supervisorial rankings. with the question whether Albemarle has While they allow the use of supervisorial shown its tests to be job-related." rankings in test validation, the Guidelines quite plainly contemplate that the rankings will be elicited with far more care thanwas "The EEOC has issued 'Guidelines' for demonstrated here. Albemarle'ssuper- employers seeking to determine, through visors were asked to rank employees bya professional validation studies, whether 'standard' that was extremelyvague and their employment tests are job related.... fatally open to divergent interpretations. The EEOC Guidelines are not administra- Each 'job grouping' contained a number of tive 'regulations' promulgated pursuant to different jobs, and the supervisorswere formal procedures established by the asked, in each grouping, to Congress. But, as this Court has hereto- fore noted, they do constitute '[t]he ad- 'determine which ones [employees] ministrative interpretation of the Act by the they felt irrespective of the job that they

8 THE CONFERENCE BOARD were actually doing, but in their respec- nonwhite. The Standards of the American tive jobs, did a better job than theperson Psychological Association state that it is they were rating against.. .'" 'essential' that

There is no way of knowing precisely what '[t]he validity of a test should be deter- criteria of job performance the supervisors mined on subjects who are at the age or were considering, whether each of the in the same educational or vocational supervisors was considering thesame situation as the persons for whom the criteria or whether, indeed, any of the test is recommended in practice.' supervisors actually applied a focused and stable body of criteria of any kind. The EEOC Guidelines likewise provide There is, in short, simply no way to deter- that Idlata must be generated and results mine whether thecriteria actually separately reported for minority or non- considered were sufficiently related to the minority groups wherever technically feas- Company's legitimate interest in job- ible.'...In the present case, such 'differ- specific ability to justify a testing system ential validation' as to racial groupswas with a racially discriminatory impact. very likely not 'feasible,' because years of "(3) The company's study focused, in discrimination at the plant have insured most cases, on job groups near the top of that nearly all of the upper levelem- the various lines of progression.. . The ployees are white. But there has beenno Guidelines take a sensible approach to clear showing that differential validation this issue, and we now endorse it.. . The was not feasible for lower level jobs. More fact that the best of those employees importantly, the Guidelines provide ... working near the top of a line ofprogres- [for subsequent validation studies includ- sion score well on a test does notneces- ing minority candidates and also of minor- sarily mean that that test, or some particu- ity groups separately]. lar cutoff score on the test, is a permissible measure of the minimal qualifications of "For all these reasons, we agree with new workers, entering lower level jobs. In the Court of Appeals that the District Court drawing any such conclusion, detailed erred in concluding that Albemarle had consideration must be given to the normal proved the job relatedness of its testing speed of promotion, to the efficacy ofon- program and that the respondents were the-job training in the scheme ofpromo- consequently not entitled to equitable re- tion, and to the possible use of testing as a lief....Because of the particular circum- promotion device, rather than as a screen stances of this case, however, it appears for entry into low-level jobs.. ..The issues that the. . prudent course is to leave to take on special importance in acase, such the District Court the precise fashioning of as this one. where incumbent employees the necessary relief in the first instance. are permitted to work at even high-level During the appellate stages of this litiga- jobs without passing the company's test tion, the plant has apparently been battery.... amending its departmental organization "(4) Albemarle's validation study dealt and the use made of its tests. The appro- only with job-experienced, white workers; priate standard of proof for job relatedness but the tests themselves are given to new has not been clarified until today. Simi- job applicants, who are younger, largely larly, the respondents have not until today inexperienced, and in many instances been specifically apprised of their oppor-

FEDERAL NONDISCRIMINATION REGULATIONS 19 tunity to present evidence that even vali- stances now obtain is a matter best de- dated tests might be a 'pretext' for dis- cided, in the first instance, by the District crimination in light of alternative selection Court. That court will be free to take such procedures available to the company. We new evidence, and to exercise such con- also note that the Guidelines authorize trol of the company's use and validation of provisional use of tests, pending new vali- employee selection procedures, as are dation efforts, in certain very limited cir- warranted by the circumstances and by cumstances. ... Whether such circum- the controlling law."

The Equal Employment Opportunity Act of Seniority Old Issues and 1972 brought federal, state and local govern- Two New Dilemmas ments under the provisions of Title VII. This intensified the questions with respect to "merit" By the end of 1972 it was already well estab- hiringsomething governmental units believed lished that the federal courts did not regard de- they were already accomplishing by written civil partmental or job-progression line seniority sys- service examinations and other hiring require- tems that perpetuated past discriminatory patterns ments. Following the Griggs. decision. several Cir- as "bona tide" seniority systems under Title VII. cuit Court decisions struck down specific civil Court-decision-watchers noted that the remedies service examinations, height and weight require- provided by various courts to minorities who had ments, etc.. for policemen, firemen. teachers or previously been "locked in" to undesirable jobs other government employees because these re- by such systems included: (11 the right to trans- quirements were shown to have a disparate effect fer to jobs they are qualified to perform in other on the employment opportunities of minorities departments or job-progression lines and to move and or women and were not demonstrably re- up those new lines as rapidly as openings occur lated to job performance (see pages 51 to 55. for which they are qualified; (2) the use of their Appendix A, for excerpts from some of these plantwide seniority in determining their "rightful decisions). place" for transfer and promotion purposes; (3) For several years the Equal Employment Op- if the initial transfer must be to a lower-paying portunity Coordinating Committee (EEOCC ) job in the more desirable progression line, the which consists of the Secretary of Labor, the maintenance of their pay at their old job's wage Chairman of the EEOC, the Attorney General. rate ("red-circling") until they work up to jobs the Chairman of the U.S. Civil Service Commis- that pay at least as much in the new job-progres- sion. and the Chairman of the U.S. Civil Rights sion lines: and ( 4) the right to "two bites at the Commissionhas been trying to develop a set of apple." i.e., to return to their old jobs if they do uniform guidelines on employee selection pro- not like their first new assignmentsand then to cedures. Draft documents have been circulated transfer out once more within a reasonable period for comment, but uniform guidelines have not as of time. By the end of 1973 backpay was also yet been agreed upon. Some knowledgeable peo- being added as a necessary part of the remedy ple believe that the Supreme Court's decision in ( see Exhibit 2). Albemarle Paper may break the deadlock. Mean- But special seniority and transfer provisions while, they point out that the EEOC's Guidelines for minorities are admittedly cumbersome to ad- continue to be given "great deference" by the minister, especially in very large plants. Following courts. regardless of the employment setting or the lead of the steel and trucking industries (see even of whether Title VII itselfis directly in- page 9 ),other companies and unions whose olved. contracts did not already include such provisions

20 THE CONFERENCE BOARil% have begun to switch to plantwide seniority pro- ing in the plant again. The District Court held visions; to open up their job-progression lines by this to be illegal and tried to fashiona remedy to allowing greater transfer and promotion rights to correct the situation at the employer's expense all employees; and to post all job openingsto without injuring any individual white employee's make sure everyone in the plant is aware of them. seniority rights. The case is, however, on appeal. By acting affirmatively on their own, both the Meanwhile, court-decision-watchers note that two companies and the unions hope to reduce, if not circuit courts have held that a plantwide seniority totally eliminate, the possibility of class-action system is "a bona fide seniority system" and that suits and backpay awards for Title VII discrimi- layoffs made in accordance with sucha system nation. (Some nonunion companies report tak- are lawful under Title VII.' ing similar actions to provide hourly employees As the recession deepened precipitously, civil with promotion and transfer opportunities 1na rights, minority and women's advocacygroups broader, more objective, and more openly admin- became seriously concerned that whatever gains istered internal labor market. A substantialnum- had been made since the late 1960's toward equal ber of companies now say they have instituted employment opportunity would be wiped out by similar procedures for their exempt employees, "last in-first out" layoffs. They urged the EEOCto too.) issue guidelines on the subject, generally along The matter of seniority in relation to Title VII the lines of a memorandum issued by Eleanor almost seemed resolved. But then came thereces- Holmes Norton, Chairperson of the New York sion, and companies began to lay off employees. City Commission on Human Rights. Suddenly a whole new problem area wasrecog- Essentially, employers and unions would be nized. Some companies had hired very few mi- called uponin lieu of making seniority layoffs norities or women for certain job categories until that would have a disparate impacton minorities they undertook affirmative action recruiting and and/or womento adopt other cost-cuttingor hiring programs in the late 1960's. Now these production-reducing alternatives that would have companies needed to reduce their work forces in less of an adverse effect on the protectedgroups. those job categories. If they followed the rule of For example, the problem might be solved by inverse plantwide seniority, as their collective- attrition, elimination of overtime,postponement bargaining agreements generally required, the lay- of wage and benefit increases reschedulingvaca- offs would have a disproportionate effecton the tions, sharing the work through shorter work days newly hired, protected groups. Was this permis- or shorter work weeks, rotating layoffs, tempo- sible under Title VII which, in section 703 ( h), rarily shutting down the entire plant, etc. The includes an exception for actions taken "pursuant EEOC did draft some guidelines, but decidednot to a bona fide seniority or merit system"? to issue them untilit had consulted with the The initial court case on the issue involveda LEOCC, the federal coordinating bodyon non- layoff that cut very deeply into the work force, discrimination matters. While the other EEOCC going all the way back to individuals hired in members agreed that guidelines were needed, 1951. The District Court noted that the collec- they disagreed on their content. These guidelines, tive-bargaining agreement gave the all-white work therefore, are currently in limbo. Nonetheless, force that had been hired throughout the 1950's the discussion has served to focus attentionon and the early 1960's recall rights to their jobs. If the problem, and a number of local unions and this agreement were followed, it might well be employers have worked out specialarrangements a decade before there were any minorities work-

Waters v. Wisconsin Steel Works of Int. Harvester Co.. U.S. Court o. Appeals. Seventh Circuit (Chicago; 502 F. Watkins v. United Steelworkers of America Loc. 2369. 2d 1309 11974). and Jersey Cent. Pow. R Lt. Co.v. Local D.C. E.D. La.. 369 F. Stipp,1221(1974). The Circuit lin. 327, etc. of I.B.E.W.. U.S. Court of Appeals. Third Court has now reversed the decision. Circuit (Philadelphia) 508 F. 2d 687 (1975)-

FEDERAL NONDISCRIMINATION REGULATIONS 21 Exhibit 9

Constructive Seniority v. Bona FideSeniority? "In seeking application-date seniority for mem- creation of fictional seniority for newly hired Ne- bers of class 3 (black applicants who applied for groes, and quite another thing for it to require OTR [over-the-road driver] jobs before January that time actually worked in Negro jobs be given 1, 1972)appellants ask us to take a giant step be- equal status with time worked in white jobs.... yond permitting job competition on the basis of [C]reating fictional employment time for newly- company seniority. They ask us to create con- hired Negroes would constitute preferential rather structive seniority for applicants who have never than remedial treatment. worked for the company. Granting that the black OTR applicants who were rejected on racial * * * grounds suffered a wrong, we do not believe that `No stigma of preference attaches to recogni- Title VII permits the extension of constructive tion of time actually worked in Negro jobs as the seniority to them as a remedy. Section703(h) equal of white time.... We conclude ...that ...provides: Congress exempted from the anti-discrimination `Notwithstanding any other provision of this requirement only those seniority rights which title it shall not be an unlawful employment prac- gave white workers preference over junior Ne- tice for an employer to apply different standards groes.' of compensation, or different terms, conditions, We are guided by his reasoning here. The or privileges of employment pursuant to a bona district court did not abuse its discretion in refus- fide seniority or merit system...provided that ing to create constructive seniority for black OTR such differences are not the result of an intention applicants who were rejected as a result of Bow- to discriminate because of race, color, religion, man's discriminatory policy." sex, or national origin.' "The discrimination which has taken place in Excerpts from the decision of the U.S. Court of a refusal to hire does not affect the bona fides of Appeals, Fifth Circuit (New Orleans), Franks v. the seniority system.... Facing this problem in Bowman Transportation Company,495F. 2d Local 189,Judge Wisdom wrote: 398 (1974).The Supreme Court has agreed to `It is one thing for legislation to require the review this decision. to reduce or eliminate the need for seniority tation Company, a case in which both the Dis- layoffs.? trict Court and the Circuit Court have refused While recognizing the appropriateness of local to create "constructive seniority," i.e., seniority negotiations to deal with any troublesome matter, dating back to the exact dates individual appli- national labor leaders stress thatitisreally cants were denied employment on racial grounds employers' past hiring practices, which by law (see Exhibit 9). Court-decision-watchers believe are beyond union control, and not seniority rules this case is a crucial one in the development of that are giving rise to the present problem, so the whole line of reasoning with respect to what employers should be held responsible. does and does not constitute a "bona fide" senior- Meanwhile another case involving seniority ity system under Title VII. They note that, unlike has been making its way up through the federal some of the cases with respect to layoff and re- courts. The Supreme Court has now agreed to call, in this case itis the very individuals who review the case of Franks v. Bowman Transpor- were discriminated againstnot other members of the same classwho are seeking constructive See David Hershfield. "Reducing Personnel Costs Dur- ing Recession." The Conference Board RECORD, June, seniority back to the dates they personally were 1975, pp. 20-22. refused employment.

22 THE CONFERENCE BOARD

9 !...4 Fla° Exhibit 10

Extended Mandatory Maternity Leave= Sex Discrimination "This Court has long recognized that freedom ".. Mhe provisions amount to a conclusive of personal, choice in matters of marriage and presumption that every pregnant teacher who family life is one of the liberties protected by the reaches the fifth or sixth month of pregnancy is Due Process Clause of the Fourteenth Amend- physically incapable of continuing. There is no ment.... individualized determination by the teacher's doc- "By acting to penalize the pregnant teacher for toror the school board'sas to any particular deciding to bear a child, overly restrictive ma- teacher's ability to continue at her job. The rules ternity leave regulations can constitute a heavy contain an irrebuttable presumption of physical burden on the exercise of these protected free- incompetency, and, that presumption applies even doms. .. . [Tihe Due Process Clause of the Four- when the medical evidence as to an individual teenth Amendment requires that, such rules must woman's physical status might be wholly to the not needlessly, arbitrarily, or capriciously im- contrary." pinge upon this vital area of a teacher's constitu- * tional liberty. ..." ..While the regulations no doubt represent a good-faith attempt to achieve a laudable goal, "... The r:bitrary cut-off dates embodied in they cannot pass muster under the Due Process the mandatory leave rules before us have no ra- Clause of the Fourteenth Amendment, becauie tional relationship to the valid state interest of they employ irrebuttable presumptions that un- preserving continuity of instruction. As long as duly penalize a female teacher for deciding to the teacher is required to give substantial advance bear a child." notice of her condition, the choice of firm dates later in pregnancy would serve the boards' objec- .. For similar reasons, we hold the [prohibi- tives just as well, while imposing a far lesser bur- tion against returning until the infant is] three den on the women's exercise of constitutionally months' provision of the Cleveland return rule protected freedom. unconstitutional." "The question remains as to whether the fifth and sixth month cut-off dates can be justified on Excerpts from the decision of the Supreme the other ground advanced by the schciol boards Court of the United States, Cleveland Board of the necessity of keeping physically unfit teach- Education v. Lafleur and Cohen v. Chesterfield ers out of the classroom. : .. County School Board, et al., 414 U.S. 632 (1974).

Sex Discrimination and versy has centered around maternity leaves and Employee Benefits benefits, but there has also been a controversy brewing with respect to pension benefits and life In1972, the EEOC hadissued amended insurance benefits. Guidelines on Discrimination Because of Sex.* The Supreme Court, in 1974, held that ex- But some employers felt the Commission had tended mandatory maternity leave provisions for gone too far, so they declined to follow certain teachers violated the Due Process CIause of the provisions until they had been tested in the courts. Fourteenth Amendment (see Exhibit 10). Most The most controversial parts of the Guidelines court-decision-watchersfelt deal with employee benefits. The major contro- that anything that was held to be sex discrimination under the Con- * See Appendix 13 in Report No. 589. stitution was also likely to be regarded as sex

FEDERAL NONDISCRIMINATION REGULATIONS 23 Exhibit 11

Is Pregnancy a Temporary Disability under Title VII? "Liberty Mutual provides its employees with tory of the Act does not show any intent other an income protection plan. The plan is a fringe than to strike at the broad spec 'sum of discrimi- benefit and provides employees with the payment nation. of income during periods of disability.. . . "We are not persuaded by appellant's argument Liberty Mutual, however, does not pay any bene- that because the guidelines in question were is- fits under the income protection plan for dis- sued in 1972, they should not be given our de- ability due to pregnancy or for any disability re- ference. The EEOC as the agency charged with lated to pregnancy.... the responsibility of administering the Act, has is- "Liberty Mutual maintains that Title VII does sued the guidelines to keep pace with changes in not require it to include pregnancy benefits in society's attitudes. This evolutionary process is the income protection plan.... Appellant feels a necessary function of our legal systema sys- that [Geduldig v.] Aiello is diapositive of the tem that must remain flexible and adaptable to case before us. We ... disagree with the appel- ever-changing concepts of our society.. .. lant. "We feel that the legislative purpose of the "Geduldig v. Aiello involved the question of Act is furthered by the EEOC guidelines and that whether there was sex discrimination in violation the guidelines are consistent with the plain mean- of the Equal Protection Clause of the Fourteenth ing to the statute. Mindful that the guidelines are Amendment. Here we are involved with the ques- interpretive rules, we will give them our deference tion of whether there was discrimination in viola- as required by Griggs v. Duke Power CO. .. . tion of Title VII of the Civil Rights Act of 1964. "Under the pertinent guidelines, it is discrimi- In this posture our case is one of statutory inter- natory to treat pregnancy differently from other pretation rather than one of constitutional anal- temporary disabilities.... Liberty Mutual ex- ysis. On this distinction alone we believe appel- pressly excludes all pregnancy disabilities from lant's reliance on Aiello is misplaced." coverage under its plan while at the same time covers all other disabilities except those volun- tarily inflicted. "'To effectuate the goals of Title VII Congress "Appellant, in justification of this policy, argues created the EEOC.... As an agency, the EEOC that because pregnancy is voluntary and illnesses was given the power by Congress to issue regula- are not, pregnancy can be excluded from its in- tions or guidelines that would indicate what are ' come protection plan. We disagree. Voluntariness or are not proscribed discriminatory practices. is no basis to justify disparate treatment of preg- These guidelines are the agency's interpretation of nancy. There are a great many activities that the statute. When faced with statutory construc- people participate in that involve a recognized tion, problems, courts have generally held that the risk. Most people undertake these activities with guidelines are entitled to great deference.. . . full knowledge of the potential harm.. . . tt. "The guidelines we deal with here prohibit an ..Even if we were to accept appellant's employer from discriminating between men and argument of voluntariness, we find that some vol- women with regard to employment policies and untary disabilities are covered while one volun- fringe benefits." tary disability that is peculiar to women is not so * * covered. Either way we find no support for ap- pellant's argument. Moreover, pregnancyitself ... Appellant has not shown any evidence in may not be voluntary. Religious convictions and light of the legislative history that would indicate methods of contraception may play a part in that the guidelines are inconsistent with any con- determining the voluntary nature of a pregnan- gressional intent. A study of the legislative his-

24 THE CONFERENCE BOARD "Appellant next contends that the plan covers vinced that integrity of the plan would be jeop- only those disabilities arising from sickness, and ardized. since pregnancy is not a sickness it is properly "Giving our deference to the EEOC guidelines, excluded from coverage. Again we disagree. We we agree that cost is no defense under Title VII believe that pregnancy should be treated as any to this particular issue. ... other temporary disability. Employers offer dis- "Appellant advanced several other arguments ability insurance plans to their employees to al- to support its contentions, but we find them wholly leviate the economic burdens caused by the loss withoutmerit.The company's policy is neutral on of income and the incurrence of medical expenses its face but treats a protected class of persons in that arise from the inability to work. A woman, a disparate manner. This is precisely what Title disabled by pregnancy, has much in common with VII intends to strike down.... a person disabled by a. temporary illness. They "We conclude that Liberty Mutual's income both suffer a loss of income because of absence protection plan violates Title VII of the 1964 from work: they both incur medical expenses; and Civil Rights Act by excluding pregnancy benefits the pregnant woman will probably have hospitali- from coverage while including other kinds of zation expenses while the other person may have temporary disabilities." none, choosing to convalesce at home."

"...Appellant's maternity leave policy, re- "Under Liberty Mutual's plan nearly all dis- quiring all women to return to work within three abilities are covered. We believe that an income months [of delivery] or be fired, penalizes women protection plan that covers so many temporary because of a physiological condition found only disabilities but excludes pregnancy because it is in their sex. There is no leeway under this leave not a sickness discriminates against women and policy to ascertain individual capabilities or char- cannot stand. acteristics. "Appellant also contends that the plan does ". .. We believe that a leave policy that in es- not violate Title VII because of the company's sence operates as two distinct policies, one affect- legitimate interest in maintaining the financial in- ing only women, cannot stand under Title VII." tegrity of the plan. "Appellant has offered no statistical informa- Excerpts from the decision of the U.S. Court of tion from which we could conclude that the in- Appeals, Third Circuit (Philadelphia), Wetzel v. creased cost for pregnancy benefits would be 'dev- Liberty Mutual Insurance Company, 511 F. 2d astating.' We do realize that there would be an 199 (1975). The Supreme Court has agreed to increased premium. However, we are not con- review this decision.

discriminationunderTitleVII.becausethe The EEOC Guidelines say: statute so much more explicitly forbids this type of discrimination. Accordingly, they checked to "Disabilities caused or contributed to by preg- be sure their own company's maternity-leave pro- nancy, miscarriage, abortion, childbirth, and re- visions were not arbitrary, but were tailored to covery therefrom are, for all job-related purposes, their true business planning needs. as well as to temporary disabilities and should be treated as the needs and physical condition of the individual. such under any health or temporary disability in- Rut the question of whether maternity leaves surance or sick leave plan available in connection needed to be paid leaves is still not finally settled. with employment."

FEDERAL NONDISCRIMINATION REGULATIONS 25

C However, some companies feel pregnancy is a date on which the EEOC's amended Guidelines matter of choice, and that they should not be on Discrimination because of Sex were issued. obligated to provide any paid maternity leaves. The matter of pension benefits and life insur- Others concede that anyillnessrelated to preg- ance benefits isstill up in the air. The EEOC nancy should be covered by their employee- guidelines call for equal benefits for the two sexes, benefit plans, but believe thatnormalpregnancy regardless of cost differences; but the Sex Dis- and delivery is "neither a sickness nor an acci- crimination Guidelines issued by the Office of dent" and, therefore, should not be covered under Federal Contract Compliance (see page 30) per- their paid sickness and accident leave provisions. mit either equal benefits or equal costs. A prob- The first case related to the matter that reached lem arises because women, as a group, live longer the Supreme Court did not involve Title VII.' It than men, as a group. Therefore, based on the dealt with whether, under the Equal Protection actuarial tables currently used, it is more expen- Clause of the Fourteenth Amendment to the Con- sive to provide all female employees with the same stitution, a state's disability insuranceprogram is monthly pension benefit provided to menand required to provide benefits to those whose dis- less expensive to provide the women with life ability is attributable tonormalpregnancy and insurance coverage. This is another area in which delivery. The Court held that California is free the EEOCC says it is trying to arrive at uniform to decide what risks it will and will not cover. guidelines. The court cases dealing with these and how adequately itwill do so, initssell matters are stillat the district court level, so supporting insurance program; the exclusionc court-decision-watchers expect it will be at least normal pregnancy and delivery does not violate two years before the matter is finally settled. the Constitution. At first a few court-decision-watchers thought The Validity of this Supreme Court decision might leadto simi- Performance Appraisals lar rulings under Title VII, but most doubted it. Generally speaking, supervisory ratings have Once again they pointed out that Title VII is been assumed to be accurate, objective assess- much more explicit than the Constitution;sex ments of individual job performance. As a result, discrimination with respect to "compensation, most companies have used such ratings as one of terms, conditions, or privileges of employment" the major criteria on which to base various per- is expressly prohibited by the statute. Since the sonnel decisions, especially for nonunion em- Aiellodecision, two Circuit Courts have specifi- ployeesdeciding who should get pay increases, cally ruled that it is not controlling in Title VII promotions, transfers, demotions, layoffs, termi- actions. One Circuit Court has explicitlyap- nations, etc. Similarly, such ratings have been proved the provisions of the EEOC Guidelines among the major criteria usedinvalidating (see Exhibit 11 ). The Supreme Court hasnow employee-selection procedures. agreed to review that decision. But knowledgeablepersonnelpsy hologists Some major companies now do provide paid have long been aware that the appraisal of indi- maternity leaves. However, because of thecon- vidual job performance by supervisors isa tricky siderable expense this would involve in theirpar- business at best. They say that many safeguards ticular situations, many others have indicated and precautions need to be built into the perform- that they are waiting. They say they will comply ance-appraisal system to ensure valid and reliable with whatever the Supreme Court ultimatelyrules ratings which are free from discriminatory bias. on the matter. Some are even placing funds in The EEOC Guidelines on Employee Selection escrow to cover their potential liability for paid Procedures (see Appendix B in Report No. 589), maternity leaves back to March 31, 1972, the which were issued in 1970, specifically call for validation of employee selection procedures in M Gedu;dig v. Aiello, 417 U.S. 484 (1974). terms of "important elements of work behavior

26 THE CONFERENCE BOARD which comprise or are relevant to the job or jobs not been related to observable, objective stand- for which candidates are being evaluated." While ards of work performanceor if they have not permitting the use of supervisory ratings,the been made in accordance with uniform, carefully Guidelines include a special warning about them specified proceduresthen the discriminatory ap- "in view of the possibility of bias inherent in sub- praisal results have generally been overturned and jective evaluations." Thus companies have been a revision of the performance-appraisal system aware for several years that the supervisory rat- required (see Exhibit 12). ings they use in formal validation studies are ex- Thus, companies are now discovering that, far pected by the EEOC to be directly related to the from being a firm, always-acceptable yardstick performance requirements of specific jobsnot against which they can measure the fairness and to be assessments of individuals in the abstract validity of all their personnel actions, supervisory and are also to be very carefully arrived at. ratings of performance may themsel-es some- Court-decision-watchers note that the federal times be questioned. If there is an "adverse effect" courts have also been following the same line of on a protected group, then the appraisals may reasoning in examining performance appraisals well be considered by the courts as "tests" need- used for purposes other thantestvalidation. ing validation. One personnel specialist sighed: Whenever the application of performance ap- "They're right. of course. But it really makes life praisal data has an adverse effect on some group complex. Now nothing stays put. You have to protected by Title VII, the court looks to how look out for unnecessary disparate impacts every- the ratings have been made. If the ratings have whereeven in your measuring tools."

Exhibit 12

Performance Evaluation as a "Test" Requiring Validation "Zia is a contractor with the U. S. Atomic En- * * * ergy Commission at Los Alamos, New Mexico. "The Zia Company failed to validate the test Zia employs between 900 and 1,100 workers of according to the EEOC guidelines becauseit which about 500 are Spanish surnamed and In- failed to introduce evidence of the validity of its dian employees. When the work force had to be employee performance evaluation test consisting reduced, Zia used an employee performance eval- of empirical data demonstrating that the test was uation test given by supervisors and foremen on significantly correlated with important elements volume of work, quality of work, job knowledge, of work behavior relevant to the jobs for which dependability and cooperation. The evaluation the appellants were being evaluated. Zia's own was made while the employee was working'. The Performance Evaluation Manual for its raters appellants were laid off because of their low stated that Volume of Work is: scores on the evaluations in May and August, `...the volume or output of acceptable work 1970. consiaering the job performance standard. The ". .. Before the reduction in work force there employee's volume is rated according to the aver- were eight Anglos and six Spanish surnamed em- age daily amount of acceptable work he has pro- ployees and one Indian in the machine shop. duced during the review period. Don't compare After the reduction, there were seven Anglos and him with employees in higher, lower or different two Spanish surnamed employees....[Also] classifications. We all have our good and bad before the reduction in force there were eighteen days, so it is important that the rating be based on Spanish surnamed and fourteen Anglo employees the average or typical daily output.' in the ironworkers shop; after the reduction, ten "Zia admits that only one of the evaluators in Spanish surnamed and twelve Anglos remained." the machine shop kept records; there were no

FEDERAL NONDISCRIMINATION REGULATIONS 27

3ti other backup records to the performance evalua- uators but were not based on any definite identifi- tions which acre maintained. As a result of the able criteria based on quality or quantity of work evaluations, reductions in force were accomplished or specific performances that were supported by late that summer and early fall. some kind of record. "The machine shop employees were evaluated "The test was not validated according to Zia's in May, 1970 by Thomas, Pickett and Barrows. own guidelinesinthat the evaluators did not The ironworkers unit was evaluated in August. grade the employees according to their average 1970 by its superintendent. The night foreman of daily amount of acceptable work produced dur- the machine shop, Pickett, kept private records ing the review period. Therefore. the test was but he only observed the day workers for about based almost entirely on their subjective observa- half an hour per day. Pickett testified that he tions." made the best evaluations he could but that the * ft, 4:

men lie graded did not work for him and it was a ".. . Zia contends that,. .the Order... was 'slim judgment.' complied with the test was self-validating in that -Mr. Thomas, the machine shop supervisor. they measured job related criteria by evaluating rated the machine shop employees. He was ab- the employee's actual performance on the job.

sent from the plant for about half of the time for "This contention has no merit. . , . The test about four months before the evaluation took was based primarily on the subjective observa- place in May. 1970. When he was at the plant tions of the evaluators, two out of three of whom lie observed the employees and he based his did not observe the workers on a daily basis." evaluation on their work and from talking to the inspector and engineer assigned to the machine Excerpts from the decision of the U.S. Court of shop. It is clear that the evaluations were based Appeals, Tenth Circuit (Denver),Brito v. Zia

on the best judgments and opinions of these eval- Company,478 F. 2d 1200 ( I 973 ).

The Processing of Complaints increasingly aware of this strong federal law pro- by the EEOC hibiting discriminationin employment because of race, color, religion. sex. or national origin. The scope of Title VII was broadened in 1972 As a result. the number of complaints filed with to cover virtually alle m ployers.,both public and the EEOC has grown in each successive year. private. in all sectors of the economy. Since then Unfortunately. despite significant increases in there have been EEOC complaints and also fed- the funds allocated to the EEOC in successive eral court cases charging violations of Title VII years.theadministrative machinery andstaff by many different kinds of employersby local available at this agency have not proved adequate and state government agencies, by public and pri- to handle the increasing caseload. A serious back- vate colleges and universities, by school systems. log of complaints has built up. by hospitals. and by various other nonprofit or- The EEOC has adopted several different ap- ganitationsas well as by business enterprises. proaches to try to deal with the problem. For unions and employment agencies.' And over the example: years individuals seeking work or already work- ing in all sectors of the economy have become ( ) The issuance of "right to sue" letters to individuals. even though the EEOC has not been " Federal government employeesarealso coveredby Ink VII. amended. but their complaints of discrimina- able to attempt conciliation of their complaints. tion are handled by the Civil Service Commission. rather ( 2) A "tracksystem" wherebysignificant than the V.E0C. The (ommission's actions and rulings are then sithicct to federal court review, but until recently the Commission resources are focused on investigat- ta hole cane v,;is not being heard afresh by the court. ing and conciliating broad charges of discrimina-

28 THE CONFERENCE BOARS

eS tion against a limited number of major employers certain major regional employers and unions. and unions. The Commission indicated this would And Tracks III and IV were for the handling of consolidate theinvestigation of many similar multiple and single cha..7,es against all other em- complaints; it also hoped that the broad settle- ployers and unions, with Track IV investigations ments arrived at would be an important impetus being limited to the issues raised in the single to changes in discriminatory patterns and prac- charge. Allocations of Commission resources tices by m,y other employers and unions, thus have been roughly based on this classificationsys- reducing the need for complaints. tem. In the fall of 1973 General Motors, Ford, Gen- (3) An agreement, if federal standards are eral Electric, Sears Roebuck and the Interna- applied, to give greater weight to the findings of tional Brotherhood of Electrical Workers were some of the state and local nondiscrimination all notified that they were on Track I, charged agencies to which the EEOC defers the initial with job discrimination "on a national scale."'" handling of complaints. Track II was reserved for broad charges against Despitesome even say because ofsuch ef- forts, the backlog of unprocessed EEOC com- "Other unions are also involved because they have con- tracts with the named employers. The investigations in sup- plaints stands at over 90,000 as of June 30, 1975. port of the charges have, like those preceding the AT&T (The EEOC has received over 60,000 complaints consent agreement, been both very broad in scope and very detailed. As of June, 1975, all five of these Track I cases in this fiscal year and has processed almostan are still pending. equal number. )

FEC ERN_ NONDISCRIMINATION REGULATIONS 29 Recent Developments under Executive Order 11246,asAmended*

UNDERTHIS Executive Order, each contracting analyses. The representation of protected groups agency in the Federal Government has been given in the work force is now analyzed by job titles primary responsibility for obtaining compliance within departments at each establishment. Lines by specified types of government contractors with of progression, usual promotion sequences, and the rules, regulations and orders relating to em- job families or disciplines must also be indicated; ployment discrimination issued through the Office and the wage rate or salary range for each job of Federal Contract Compliance (OFCC) in the title must now be given. Then any underutiliza- Department of Labor. Reviseci Order No. 4. tion of minorities or women by job group ("de- which calls for written affirmative action plans. fined as one or a group of jobs having similar including goals and timetables,is the primary content, wage rates, and opportunities") and by order to be enforced. But the scattering of com- organizational units is noted so that goals, time- pliance responsibility has reportedly led to great tables and affirmative action commitmentscan unevenness in enforcement efforts. Some federal be specified. agencies have apparently been much stricter in Parallel checks on these analyses are provided their requirements on contractors than others. for in the 1974 version of Revised Order No. 14, Also, companies that are in several different busi- together with a detailed outline of possible affir- nesses are subject to review by more than one mative actions the compliance review officer is agency. Sometimes they have faced very annoy- expected to consider in determining whether the ing and time-consuming problems because of con- contractor is making a good-faith effort to correct flicting instructions. "affected class" situations and achieve reasonable To try to remedy the situation, and also to goals and timetables.' takeinto account what the government had In commenting on the specificity of thenew learned in compliance efforts to date, the OFCC OFCC regulations, one affirmative action officer has issued some new regulations. A further re- said, "They've got us. There's just no hiding place vision of Revised Order No. 4 was issued effective left." Another said, "These new regulations will July 12, 1974. On the same date, Revised Order generate more paper than either we or the gov- No. 14, establishing a standardized compliance- ernment can possibly digest.It's bound to be review procedure, and including a standardized counterproductive to managing our EEO effort." compliance review report, was also issued in com- But a commentator with a longer-range perspec- pleted form (see Appendix B, pages 88 to 96 for tive said: the text of Revised Order No. 4 and pages 96 to 109 for Revised Order No. 14 ). "Actually the government is requiring us to The primary change in the 1974 version of do precisely the kinds of detailed critical analyses Revised Order No. 4 is the degree of specificity that is required in the work-force and utilization 1 In March, 1975 the OFCC also issued for comment proposed regulations formalizing itsrules for dealing with "affected class" situations, including the provision of back- pay. As of Junc 30, these proposed additions to Revised * For the full text, see Appendix B of Report No. 589. Order No. 14 had not yet been formally approved.

30 THE CONFERENCE BOARD of our human resource needs and work-force 32). In January, 1973, the agency issued regula- availabilities that we ought to be doing as a mat- tions governing the examination and copying of ter of self-interest. The minimal amount of extra OFCC documents under the Freedom of Infor- work that is needed to meet their special pro- mation Act (see Appendix B, pages 109-110, for cedural requirements is a small price indeed to the text of these regulations. To protect the confi- pay for the education we are all receiving. Volun- dentiality of their data, some companies say they tarily or not, we are now learning how to man- have, as permitted by Revised Order No. 14, age human resource systems." been using alphabetic or numeric codings or in- dex numbers to indicate pay data on the reports As noted below, there has been considerable they must submit to the OFCC. They have been controversy about the release of affirmative ac- supplying more detailed pay information only tion plan information by the OFCC (see page during the on-site reviews.

FEDERAL NONDISCRIMINATION REGULATIONS 31 Other Routes toFederal Court Action

THOSEINTERESTEDin achieving nondiscrimina- ment torelease information from employers' tion in employment promptly havefeltvery written affirmative action plans whichare on file frustrated by the administration of bothTitle with the OFCC. (Excerpts from such decisions VII and Executive Order 11246. Theyregard are on pages 66 to 69 in Appendix A.) Title VII as extremely slow and cumbersome.As Under the Administrative Procedure Act for the Executive Order, even the General Ac- they have obtained a court order requiringrule counting Office has been highly critical ofthe making by the Securities and Exchange Commis- OFCC's enforcement. Accordingly, many have sion on the necessary disclosure of EEOinforma- sought ways to bypass the existing administrative tion to stockholders of public corporations) machinery in order to bring matters directly into They have obtained court orders requiring the federal courts. federal administrative agencies to enforcea law For both individual and class-actioncom- or the Executive Order dealing with discrimina- plaints of employment discrimination, attorneys tion in employment. In this connection, ithas have looked for other federal laws and Consti- already been noted that the following additional tutional provisions under which to bring suit. laws and orders call upon federal administrative Among the provisions that they have found can agencies to insist upon nondiscrimination infed- sometimes be used are: eral employment itself and in variouskinds of The FifthandFourteenth Amend- federally funded activities: ments to the Constitution (see Ap- pendix B, page 70 for texts). Title VI of the Civil Rights Act of 1964 The Civil Rights Acts of 1866, 1870, and 1871 (see Appendix B,page 70 Title IX of the Educational Amend- fortexts).. ments of 1972

Indeed, informed observers note that theSu- The State and Local Fiscal Assistance preme Court seems to be encouraging just such Act of 1972 a course of action ( see Exhibit 13). And thesame provisions are also being usedto lengthen the The 1973 Amendments to the Omni- list of categories or groups protectedfrom em- bus Crime Control and Safe Streets ployment discrimination,e.g., aliens (see Exhibit Act 14). Advocacy and public interestgroups have also I Natural Res. Def. Coun. Inc.v.Securities & Exch. sought to involve the federal courts in EEOmat- Coin's.,D.C.. D.C. 389 F. Supp. 689 (1974 ). ters on a more systematic basis: See, for example,Adams v. Richardson,U.S. Court of Appeals, District of Columbia Circuit, 480 F. 2d 1159 (1973) with further proceedings in the District Courtun- Under the Freedom of Information Actthey der the name ofAdams v. Weinberger.andLegal Aid So- have obtained court orders requiring the ciety of Alameda County v. Brennan,D.C., N.D. California, govern- 381 F. Supp. 125 (1974 ),

32 THE CONFERENCE BOARD

a The Comprehensive Employment and As one court-decision-watcher putit:"The Training Act of 1973 federal courts obviously regard nondiscrimina- tion in employment as a public policy matter of the highest priority. They mean business about Executive Order 11478, Equal Em- it, and they expect everyone else to mean busi- ployment Opportunity in the Federal ness too. All of usadministrative agencies, pub- Government lic and private employers, and unions, toohad better get with it. Failure to act vigorously and (Texts of the relevant provisions ap- promptly is likely to prove very embarrassing and pear in Appendix B. ) extremely costly."

Exhibit 13

Relationship of the Civil Rights Act of 1866 to Title VII "Despite Title VII's range and its design as a And a backpay award under § 1981 is not re- comprehensive solution for the problem of in- stricted to the two years specified for backpay vidious discrimination in employment, the ag- recovery under Title VII. grieved individual clearly is not deprived of other "Section 1981 is not coextensive in its cover- remedies he possesses and is not limited to Title age with Title VII. The latter is mode inapplicable VII in his search for relief. `Mhe legislative his- to certain employers. ... Also, Title VII offers tory of Title VII manifests a congressional intent assistance in investigation, conciliation, counsel, to allow an individual to pursue independently his waiver of court costs, and attorney's fees, items rights under both Title VII and other applicable that are unavailable at least under the specific state and federal statutes.' ...In particular, Con- terms of §1981." gress noted 'that the remedies available to the individual under Title VII are coextensive with the indivdual's [sic] right to sue under the pro- "We are satisfied, also, that Congress did not visions of the Civil Rights Act of 1866, 42 U.S. C. expect that a §1981 court action usually would be § 1981, and that the two procedures augment resorted to only upon completion of Title VII each other and are not mutually exclusive.'... procedures and the Commission's efforts to obtain Later, in considering the Equal Employment Op- voluntary compliance. Conciliation and persua- portunity Act of 1972, the Senate rejected an sion through the administrative process, to be amendment that would have deprived a claimant sure, often constitute a desirable approach to of any right to sue under § 1981.. settlement of disputes based on sensitive and emo- "Title 42 U. S. C. § 1981, being the present tional charges of invidious employment discrim- codification of § 1 of the century-old Civil Rights ination. We recognize, too, that the filing of a law- Act of 1866, .. onits face relates primarily to suit might tend to deter efforts at conciliation, racial discrimination in the making and enforce- that lack of success in the legal action could ment of contracts. Although this Court has not weaken the Commission's efforts to induce vol- specifically so held, it is well settled among the untary compliance, and that a suit is privately federal courts of appealsand we now join them oriented and narrow, rather than broad, in appli- that § 1981 affords a federal remedy against dis- cation, as successful conciliation tends to be. But crimination in private employment on the basis these are the natural effects of the choice Congress of race. An individual who establishes a cause of has made available to the claimant by its con- action under §1981 is entitled to both equitable ferring upon him independent administrative and and legal relief, including compensatory and, un- judicial remedies. The choice is a valuable one. der certain circumstances, punitive damages.... Under some circumstances, the administrative

FEDERAL NONDISCRIMINATION REGULATIONS 33

C route may be highly preferredover the litigatory; the statute on a § 1981 claim during the pendency under others, the reverse may be true. We are dis- of an administrative complaint in the EEOCwould inclined, in the face of congressional emphasis force a plaintiff into premature and expensiveliti- upon the existence and independence of the two gationtht..t would destroy all chances forad- remedies, to infer any positive preferencefor one ministrative conciliation and voluntary compli- over the other, without a more definiteexpres- ance. sion in the legislation Congress has enacted, as. "We have noted this possibility above for example, a proscription of and. in- a § 1981 action deed, it is conceivable, and perhapsalmost to be while an EEOC claim is pending. expected, that failure to toll will havethe effect of "We generally conclude, therefore,that the pressing a civil rights complainant who remedies available under Title VII values his and under § 1981 claim into court beforethe EEOC has § 1981, although related, and although directed to completed its administrative proceeding.[In a most of the same ends, are separate. distinct, and footnote the court said, "Weare not unmindful of independent." the significant delays that have attended adminis- trative proceedings in the EEOC.... "]One answer to this, although perhaps not a highly satisfactory "Since there is no specifically statedor other- wise relevant federal one, is that the plaintiff in his § 1981 suitmay statute of limitations for a ask the court to stay proceedings until cause of action under §1981, the controlling the admin- istrative efforts at conciliation and period would ordinarily be themost appropriate voluntary com- pliance have been completed. But one provided by state law." the fundamental answer to petitioner's argument lies in the fact presumably a happy one for the civil rightsclaim- antthat Congress clearly has retained "Petitioner argues that §1981 a failure to toll the limi- as a remedy against private employment discrimi- tation period in this case will conflict seriously with nation separate from and independent the broad remedial and humane of the purpose of Title more elaborate and time consuming procedures V" Specifically, heurges that Title VII em- of Title VII." t.,es a strong federal policy in support ofcon- ciliation and voluntary complianceas a means of Excerpts from the decision ofthe Supreme achieving the statutory mandate of equal employ- Court of the United States, Johnsonv. Railway ment opportunity. Fle suggests that failureto toll Express Agency, Inc. 95 S Ct. 1716 (1975).

Exhibit 14

Protection for Aliens underthe Civil Rights Act of 1866 "Appellants also challenge the district court's we adopt that portion of the district court's opin- decision on Guerra's §1981 claim as a matter of ion as our own. More important,as the district statutory interpretation. . . . They argue that court also noted, the Supreme Court has explicit- § 1981 is not applicable to aliens... ." ly indicated that this statute appliesto aliens." * Excerpts from the decision of the U.S.Court of "It is unnecessary torepeat the district court's Appeals, Fifth Circuit (New Orleans),Guerra v. legislative summary here. We have been unable Manchester Terminal Corporation 498F. 2d 641 to detect any significant flaws in the analysis,and (1974 ).

')FERPNC,r ROARn Recent Developmentsunder the Age Discrimination in EmploymentAct of 1967*

Work-Force Reduction Problems reportedly also to grant them about $2 million in backpayestablishing the business necessity THEEARLY CASES under the Age Dis -imination of such an action is not easy to do. Personnel law dealt with hiring practices. Butme change specialists note that all those "good" to "excel- in the economic climate has now focused special lent" appraisals of job performance that have attention on age discrimination problemsasso- been used to justify repeated annual salary in- ciated with reductions in the work force,espe- creases to virtually all white-collar workers may cially the white-collar work force.' very well come back to haunt a company when Knowledgeable personnel experts note that lay- it attempts to prove that very many of its older offs, early retirements, and terminations of older white-collar employees are really "deadwood." white-collar workers can seem especially tempt- Another facet of the Age Discrimination Act ing to cost-conscious employers. Such employees was highlighted during the 1975 budgetary woes have usually received virtually automatic salary of New York City. One of the suggestions for increases over the years, so they are generally reducing the municipal payroll ias to lower the paid considerably more than theyounger em- mandatoryretirement age. Following consulta- ployees on the same jobs. Yet these olderem- tion with the Department of Labor, which ad- ployees are not necessarily more productive minister- the federal law, the idea was reportedly indeed, their skills and knowledgemay seem dropped as being clearly illegal. The emphasis narrow and obsolescent, especially when they was shiAed to advising employees that the city are compared to very recent college graduates. would welcome vo/untnry early retirements,espe- Thus, when work-force reductions are needed, cially since quite a number of employees could the 40- to 65-year-old group can bespecially retire at their current fiz1;f)a.y. vulnerable. Nonetheless, carrying over the general line of The RelatirAship of the Job to the reasoning about employment discriminationes- Essence of the Business tablished inGriggsto the area of ..,ge aiC.imina- tion, employers are not free to cor, ate their A number of age discriminationcases have layoffs and terminations ittie 40 to 65 age group questioned the legality of flat age limitations in unless they can justify doi,,,o as a matter of busi- hiringfor jobs such as bus drivers.Court- ness necessity. Andas St,m. ;rd Oil Company decision-watchers say that one of the recentcases of California learned !± signed a consent sheds further light on the meaning of "business agreement to rehrr^ many former employees, and necessity," i.e., what is necessary to the safe and efficient operation of the business. They pointout that, in addition to concerns for safety perse and * For the full text, see Appendix B of Report ',Jo, 589. for efficiency per se, the courts alsoappear to The jobs of many older blue-collar work are pro- tuned by seniority rights under collective-bargaining agree- be taking into account the closeness of the rela- ments: however, most white-collar workersincluding pro- tionship of the particular job to the essential fessionals and managers do not have such protection. nature of the part'cular business. Thus, while the

FEDER51_ ;RIMINATION REGULATIONS 35 Exhibit 15

A Potential Impact on the Essence of theBusiness "Similar to the airline industry, the essence of aging process which begins in the late thirties in Greyhound's business is the safe transportation of the life of a person; and the statistical evidence its passengers. Thus we deem itnecessary that reflecting, among other things, that Greyhound's Greyhound establish that the essence of itsop- safest driver is one who has sixteen to twenty erations would be endangered by hiring drivers years of driving experience with Greyhound and over forty years of age. is between fifty and fifty-five years ofage, an optimum blend of age and experience with Grey- hound which could never be attained in hiringan "[A] public transportationcarrier, such as applicant forty years of age or over. This com- Greyhound, entrusted with the lives and well- pelling evidence in combination with the general being of passengers, must continually striveto testimony of the transportation industry officials employ the most highly qualified persons available adequately demonstrates Greyhound has a ra- for the position (74 ..1-ity bus driver for the tional basis in fact to believe that elimination of paramount goal of us carrier is safety. Due to its maximum hiring age will increase the likeli- such compelling cc..; .1s for safety,itis not hood of risk of harm to the well-being of its necessary that Greyhound show that all or sub- passengers and others." stantially all bus driver applicantsover forty could not perform safely. Rather... Greyhound must * * * demonstrate that it has a rational basis in factto "Greyhound need not establish its belief to the believe that elimination of its maximum hiringage certainty demanded by the Government and the will increase the likelihood of risk of harmto its district court for to do so would effectively require passengers. Greyhound need only demonstrate Greyhound to go so far as to experiment with however a minimal increase in risk of harm for it the lives of passengers in order to produce sta- is enough to show that elimination of the hiring tistical evidence pertaining to the capabilities of policy might jeopardize the life ofone more per- newly hired applicants forty to sixty-five years of son than might otherwise occur under the present age. Greyhound has amply demonstrated that its hiring practice. maximum hiring age policy is foundedupon a "In an effort to satisfy its burden of proof, good faith judgment concerning the safety needs Greyhound produced... testimony by transpor- of its passengers and others. It has established tation industry officials, former high-ranking offi- that its hiring policy is not the result ofan arbi- cials of the Interstate Commerce Commis,.ion, and trary belief lacking in objective reason or ra- Greyhound officers. The testimony of these offi- tionale." cials, although persuasive in view of theiraccum ulated experience in the transportation industry, is not of itself sufficient to establisha bona fide Excerpts from the decision of the U.S. Court of occupational cualification. In our viewwe find Appeals, Seventh Circuit (Chicago), Hodgsonv. more compelling Greyhound's evidence relating Greyhound Lines, Inc., 499 F. 2d 859 (1974). to: the rigors of the extra-board work assign- Certiorari denied, U.S. Supreme Court, under the ments; the degenerative physical andsensory name of Brennan v. Greyhound Lines, Inc. 9 changes in a human tieing broughton by the FEP Cases 58 (1975).

burden of proof is still on the employer to justify These same experts emphasize that the federal the discriminatory standard. that burdenmay be courts do tend to view all employment discrimina- much lighter in some cases than in others(see tion cases within the framework of thesame prin- Exhibit 15). ciples. and that this same distinction had been

36 THE CONFERENCE BOARD 4i emerging in Title VII cases, too.- But personnel and responsibilitiesthe organizationno part specialists have tended to think of all jobsas being of which is truly able to function independently. part of an interrelated network of assigned duties They have also tended to think of the importance of jobs in terms of their hierarchical level within the organization (or their compensation level) 2 See, for example, the excerpts on page 33 of Report and not in terms of the relationship the jobs bear No. 589 from the decision in Diaz v. Pan Am. World Air- to the essence of the business. They say this legal ways, Inc. U.S. Court of Appeals, Fifth Circuit (New Or- leans), 442 F. 2d 385 (1971). Certiorari denied, U.S. Su- concept is a difficult one to become accustomed preme Court, 404 U.S. 950 (1971). to.

FEDERAL NONDISCRIMINATION REGULATIONS 37 Recent Developments underthe Equal Pay Act of 1963*

THEEQUAL PAYAct of1963calls for equal pay managerial positions up to the initial pay ofmen for men and women for "equal work on jobs the who were so promoted. Initial pay had previously performance of which requires equal skill, effort, been related to past earnings, which were lower and responsibility, and which are performedun- for the women. The cost to thecompany was der similar working conditions" within thesame estimated at$30million. In light of this, com- establishment. By1972,the federal courts had pensation specialists warned that, since companies already interpreted the law as calling for equal often negotiated initial hiring rates for profes- pay for substantially equal work. sional and managerial jobs, they would be well The Supreme Court decided, in1974,that, advised to make sure the salaries negotiated with under this law, the term "working conditions" women were not below those for men doing sub- has the limited and precise meaning that it has stantially equal work. in the field of job evaluation, i.e., that it encom- Then, in1975,a Circuit Court affirmed the passes "surroundings" and "hazards" but does not requirement of equal pay even though itwas include "time of day worked."' Court-decision- under circumstances "in which the men regularly watchers noted thal the general shift differential spent a substantial portion of their time perform- the company paid was approved under the excep- ing a type of janitorial work which was not identi- tion in the law for "a differential based on any cal to the type of janitorial work which occupied other factor other than sex," but that the Court a substantial portion of the women's time.2 This had held that the company could not continue, as was another case in which the District Court had a "red circled" exception, an additional special noted that it was following the Supreme Court's base-rate differential it had once paid to men for advice in Griggs by giving "great deference"to doing inspection work on the night shift. Women the Secretary of Labor's regulations interpreting doing the same job on the day shift were entitled the law. to the same base pay. This seemed like a minor Severalcourt-decision-watcherscommented point, bt:t compensation experts noted thatit that it was certainly time for everyone to take all highlighted the fact that, in correcting any in- the official interpretations and regulations dealing equity under the Equal Pay Act, the company with nondiscrimination in employment that have must ordinarily raise the lower rate. The decision been issued by federal administrative agencies was reported to have cost Corning Glass Works very seriously. Apparently the courts will presume over $1 million in backpay. they are valid and appropriate unless theycan Following the extension of the coverage of be shown to be erroneously in conflict with what- the Equal Pay Act to exempt employees, AT&T ever law or executive order they are issued under. found it necessary to sign a consent agreement (fringing the initial pay of women promoted to 2 The U.S. Court of Appeals, Fifth Circuit (New Or- leans), per curium decision was made on March 26, 1975, according to the U.S. Department of Labor, but has notas *See Appendix B of Report No. 589. yet been published. It reportedly affirms Brennan v. Houston I Corning Glass Works v. Brennan. U.S. Supreme Court, Endowment. inc. 21 WH Cases 561. The Supreme Court 417 U.S. 188 (1974). has been asked to review this decision.

38 THE CONFERENCE BOARD 43 New Laws and Regulations

The Rehabilitation Act of 1973, written affirmative action plans covering such as Amended* matters as outreach recruiting and accommoda- tion to the physical and mental limitations of N 1973, CONGRESS included two sections deal- applicants and employees. The regulations are not ingwith employment discriminationinthis expected to call for goals and timetables. There broader act dealing with federal help for handi- is, of course, still very little experience with such capped individuals: written plans. But personnel specialists mention the tailoring of physical examinations to specific (1) Virtually all government contractors are job requirements, and the gradual provision of now required to agree to take affirmative action ramps and doors wide enough to accommodate to employ, and advance in employment, qualified wheel chairs, as two types of accommodations physically or mentally handicapped individuals. they are including in their written plans. Moreover, any handicapped individual who be- lieves a contractor has failed, or refuses, to com- Vietnam-Era Veterans' Readjust- ply with this requirement may, after using what- ment Assistance Act of 1974** ever internal review procedure is available, file a complaint with the Department of Labor. (The This law, which became effective at the end of Department may have his handicap certified.) 1974, includes a section that requires government (2) Discrimination is also prohibited against contractors to agree to take affirmative action to an otherwise qualified handicapped individual employ, and advance in employment, qualified under any program or activity receiving federal disabled veterans and veterans of the Vietnam financial assistance. era. The contractor must also list with the local employment service office all suitable employment The Employment Standards Administration of openings, and the employment service is required the Department of Labor administers the law to give these special categories of veterans priority with respect to government contractors, and has in referrals. Complaints by veterans against con- just announced it expects to publish revised af- tractors may be filed with the Veterans' Employ- firmative action regulations in the Federal Reg- ment Service of the Department of Labor. (No ister which will take into account the recently written affirmative action plan is required.) amended statutory definition of a "handicapped individual." In addition to agreeing not to dis- Title IX Regulations*** criminate against any qualified employee or ap- In late May, 1975, President Ford signed and plicant for employment because of a physical or sent to Congress for final approval the regulations mental handicap, major government contractors issued by the Department of Health, Education will be required to maintain, but not submit, * See Appendix B. page 86 for the text of these pro- visions. *See Appendix B. page 84. for the text of the relevant ** See Appendix B. pages 110 to 123. for the text of provisions. these provisions.

FEDERAL NONDISCRIMINATION REGULATIONS 39

I '; and Welfare under Title IX of the Educational implementation of these regulations is likelyto Amendments of 1972. This law calls for nondis- have a profound effect upon the available supply crimination on the basis ofsex under federally of women qualified to perform jobs ofmany dif- assisted educational programs and activities.In ferent kinds in all sectors of the economy. addition to prohibiting sex discrimination inem- At the same time the Office for Civil Rights ployment in all such programs, the regulations, in HEW indicated it planned to stop investigat- with certain limited exceptions, also prohibitsex ing discrimination complaints from individuals discrimination in student admission and recruit- and to concentrate its efforts on searchingout ment and in student participation inprograms broad patterns of bias in institutions. Thepro- and activities. Personnel specialistsnote that the posed change is still pending at the present time.

40 THE CONFERENCE BOARD 4,5 Appendixes

A. Other Excerpts from Federal Court Decisions About Nondiscrimination in Employment B. Texts of Regulations, as Amended Provisions from The Constitution of the United States Civil Rights Acts of 1866, 1870, and 1871 Civil Rights Act of 1964, as Amended Title VI Nondiscrimination in Federally Assisted Programs Title VII Equal Employment Opportunity Title IX of the Educational Amendments of 1972, P.L. 92-318 (excerpts) The State and Local Fiscal Assistance Act of 1972, P.L. 92-512 (excerpt) Crime Control Act of 1973, P.L. 93-83 (excerpt) The Rehabilitation Act of 1973, as Amended, P.L. 93-112 as Amended by P.L. 93-516 (excerpts) The Comprehensive Employment and Traii,.-:g Act of 1973, Pl. 93-203 (excerpts) Vietnam-Era Veterans' Readjustment Assistance Act of 1974, P.L. 93-508 (excerpts) Executive Order 11478 Office of Federal Contract Compliance Revised Order No. 4, Affirmative Action Guidelines Revised Order No. 14, Standardized Compliance Reviews Examination and Copying of OFCC Documents Department of Health, Education and Welfare: Regulations under Title IX of the Educational Amendments of 1972

APPENDIXES 41 Appendix A

Other Excerpts from Federal CourtDecisions About Nondiscrimination in Employment

THEFEDERAL COURT decisions excerpted in this male graduates. Plaintiff, a female student at Sacramento Appendix are among those considered especiallyen- State, was scheduled to graduate in June, 1970. She and lightening by various court-decision-watchers. They the class she represents allegedly sought to use the Sacra- have helped them to understand how federal judges mento State Graduate Placement Center during the Spring particularly those on the circuit courtsare of 1970, but were supposedly 'deterred from makingap- ap- plication for employment and seeking an interview' with plying the nondiscrimination laws undera variety representatives of the defendants. Additionally, two de- of circumstances. For convenience, most of these fendants allegedly circulated printed recruitment brochures court decisions are arranged by the general category on campus which referred exclusively to employment op- of personnel action that was being challenged,e.g., portunities for men. Plaintiff claims that such employment initial hiring, compensation, discharge. Court-deci- practices are sexually discriminatory and are therefore sion-watchers say this type of categorization has violative of the Civil Rights Act of 1964." proved helpful in directly reminding them ofpos- sible problem areas within their own companies.

However, they say that, because a common line of ".. .Since the inception of this action, this court has reasoning is being applied in all kinds of nondiscrim- ordered the dismissal of 10 of the named defendants due to ination cases, it is useful to be aware of what the voluntary compliance and settlement: Prudential Insurance; courts are saying about other kinds of employment Boise Cascade; Western Electric; The Travelers; Connecti- discrimination, too. cut General; Reliance Insurance; Chubb & Son; Jewel Home Shopping; John Hancock; and General Adjustment." They also point out that, while many of thecourt cases to date have dealt with blacks and women, the Hollander v. Sears, Roebuck & Co. same interpretations could apply to all other groups Excerpts from the decision of the U.S. District Court, protected by Title VII and by the Age Discrimina- Connecticut, 392 F. Supp. 90 (1975). tion in Employment Act. (See also Appendix A in (These excerpts deal only with whether a white male Report No. 589.) who was not interviewed for a company's Summer Intern- ship Program for Minority Students may bring suit charg- Nondiscrimination in Initial Hiring ing racial discrimination under the Civil Rights Act of 1866. The court decided that such a suit was proper and so the case was not dismissed; no decision has yet been McDonald v. General Mills, Inc., et al. made on the merits of the case. But see also McDonald v. Excerpts from the decision of the U.S. District Court, Santa Fe Trail Trans p. Co.. excerpted on p. 65.) Eastern District of California, 387 F. Supp. 24 (1974).

(These excerpts deal with the reaction of a number of ". . .[Tlhe plaintiff, a white student at Wesleyan Uni- companies to a law suit about sex discrimination in their versity in Middletown, Connecticut,. . .alleges that he campus recruiting practices.) was subjected to racial discrimination by the defendant, Sears, Roebuck & Co., as a result of its refusal to consider "... The Sacramento State College [now State Univer- him for a position in the Sears Summer Internship Pro- sity) Graduate Placement Center sent employer recruitment gram for Minority Students. The defendant has moved to forms to firms which had shown an interest in employment dismiss the action...." interviews on the campus. These forms contained boxes which could he checked if a firm preferred to interview men or women graduates. Each of the defendants purport- . . The defendant's principal claim is that §1981 edly checked the box which indicated a preference for does not provide a cause of action for whites who are the

FEDERAL COURT DECISIONS 43 alleged victims of racial discrimination.... The company's policy of seeking skilled personnel only "It is true that the statute provides thatall persons. . at white educational institutions is similarly an invidious shall have the same right. . . to make and enforce con- hrake on hlack employment opportunities for which no tracts...... i s enjoyed by white citizens. . . (emphasis business necessity justification was shown. While the com- added), butI do not understand this to mean, as the pany ohviously ought not he enjoined to recruit on all defendant maintains, that only non-whites may sue under college campuses unless it chooses to do so, it also ought

§ 1981. A review of the relevant legislative history of § 1 not he allowed to continue to restrict its recruitment pro- of the Civil Rights Act of 1866, 14 Stat. 27 from which grams to allor preponderantly allwhite institutions fi1981 was ultimately derived provides strong support for while maintaining such a racially imbalanced work force." the position that the phrase'as is enjoyed by white citi- zens'was not intended to restrict the availability of this Wetzel v. Liberty Mutual Insurance Company cause of action to non - whites." Excerpts from the decision of the U.S. Court of Appeals, Third Circuit (Philadelphia), 508 F. 2d 239 (1975). United States v. Georgia Power Company (These excerpts deal with sex discrimination in recruit- Excerpts from the decision of the U.S. Court of Appeals, ing, initial hiring. and promotion.) Fifth Circuit (New Orleans), 474 F. 2d 906 (1973). (These excerpts deal with an employer's obligation to do "Appellant. Liberty Mutual Insurance Company (Liberty outreach recruiting to seek qualified minorities for higher Mutual),isa casualty insurance company with offices level jobs.) throughout the country. Both men and women are em- ployed in the claims department of these offices in what "Failure or refusal to hire any individual on account of the appellant terms a 'technical' capacity. Within its claims race is expressly prohibited by Section 703 of Title department are adjusters and representatives. each of whose The private plaintiffs claim that this prohibition extends hasic function is the application of the necessary technical to Georgia Power's practices of (1) word -of -mouth sec' uit- skills to investigate and bring about the proper disposi- ing and (2) recruiting for skilled personnel only,atall- tion of claims against the company. While each is an entry white institutions.... level position open to college graduates, the salary of a "Only 7.2% of the company's labor force wiishewn claims adjuster is considerably higher than that of a claims to he black, although this race constituted a much larger representative...." percentage of the available labor force.In non-laborer jobs, this disparity is even greater. Under word-of,-uth hiring practices, friends of current employees admit,zdly received thefirst word about job openings. Since taost "Wetzel and Ross were employed as claims representa- current employees are white, word-a-moutn hiring alo tives in the Pittsburgh office of the company. Both desired would tend to isolate blacks from ti:e 'web of in! the higher paying adjuster's position but were informed by the Company that it was not open to women." tion' which flows around opportlit; -satthc .. . No business necessity conincls com;yantv con- tinue to rely so heavily on this hiring 11,iaCt, it contends it has already taken action tocorr.t:y nc.rs of new openings to blacks by posting jol- notices on company "The Company historically had employed claims ad- bulletin boards which can he read hy ;01 per,onael. Since justers but the position of claims representatives was not created until sometime in 1965. Of the 3,129 claims ad- 92.8% of all personnel likely to sec these noticeson a justers hired between JulyI.1965, and March 17, 1972, regular basis is white. however, this stop is patent.,;nacli- quate...." only' two were women: they were hired after Wetzel and Ross filed their administrative charges. During thatsame Nriod. 2.329 persons were hired as claims representatives "The built-inheadwinds which thepresent Giorgio of which 2,302. or 98.845; were women. During each Power system harbors must he offset by aslirn-.ative steps year between 1965-1969. an average of 1,441adjusters reasonahly calculated to encourage black employment and worked for the Company: in none of thoseyears were to break through the currently circumscribed web of infor. more than two adjusters women. In 1970, the number of mation. For example. advertisements of opening,: innews- omen female adjusters increased to 5 or 0.31% of the papers and periodicals accessible to the black communi- 1.6-15 adjusters employed that year. In 1971, that percent- ties of Atlanta and other Georgia cities. and public notice age increased slightly to 2.85:. that the company is an equal opportunity employerare If does not appear that women were any less qualified commonrecruitingtechniques whichshould becon- hccome claims adjusters than men. When the Company sidered.... decided to recruit women claims adjusters in 1971. it found

44 THE CONFERENCE BOARD iS that of its then existing claims representative force of 600 AT&T Proposed Supplemental Order women, approximately 1/3 were considered qualified to become claims adjusters. Approximately 10% of the claims Excerpts from the Supplemental Order proposed by representatives were offered and accepted the claims ad- AT&T and the Federal Government in May, 1975 to the justers' position. AT&T Consent Decree of January 18, 1973. Although "This statistical evidence isbuttressed by additional both AT&T and the EEOC have signed this order, it has documentary evidence. The Company's recruitment bro- not as yet been approved by the Federal District Court. chure describes the position of claims representatives as (These excerpts deal with what will constitute "good 'Fit for a Queen.' In contrast, the brochures entitled 'A faith efforts" to meet agreed-upon goals. AT&T advises Management Career in Liberty Mutual's Claims Depart- that job classification 6 includes their skilled outside craft ment,' challenge the applicant with the inquiry, 'Are you jobs; job classification 9 includes their semi-skilled outside the right man?' craft jobs; and job classification 8 includes their general "Liberty Mutual's training manual, copyright 1970, is services skilled craft jobs, such as air-conditioning me- replete with references to pronouns of the female gender. chanic, building service mechanic, and boiler operator.) "The evidence with respect to the Company's promo- tion policy is just as impressive. Promotions available to "VI. COMPLIANCE DETERMINATIONS female claims representatives were only to positions of "A ... 2. Appendix B. .. is a list of affirmative actions supervising claims representative and claims representative in job classifications 6, 8 and 9 appropriate to Bell System supervisor. Claims adjusters, however, could be promoted practices and the procedures and systems established by to those positions and to numerous other positions which the January 18, 1973 Decree. A Company shall be in prima could not he achieved without first being an adjuster. facie compliance with respect to its carry forward obliga- "Between July 1, 1965, and January 18, 1973, the Com- tions under this order, or its intermediate targets estab- pany had not employed one woman as a branch office lished pursuant to the January 18, 1973, Decree, which- claims manager but had employed in the same position ever are applicable, for women in job classifications 6, 8 between 121 and 142 men annually. During the same and 9, if all actions required by Appendix B have been period, no more than 9 or 1.65% of all persons employed performed. on an annual basis as claims supervisors were women. Not "B. If a Company has satisfied the requirements of one woman was promoted to claims supervisor from the paragraph A, 2, above, and the Plaintiffs are not satisfied ranks of claims representative between July 1965 until the that the Company isin compliance with respect toits end of 1969. Of the 97 persons promoted to claims super- carry forward obligations or its intermediate targets estab- visor in 1970, only one was a woman. Again in 1971, only lishzd pursuant to the January 18. 1973, Decree, whichever one woman was promoted. This statistical evidence is also are applicable, for women in job classifications 6, 8 and 9, corroborated by the Company's recruiting brochures. The the burden shall be on plaintiffs to show in rebuttal that: b;ochurcs for claims representatives describe the only ad- 1. the Company's actions under Appendix B were not vancetneat opportunities as supervising claims representa- performed in a bona fide manner; or tive and clai,ns representative supervisor. The brochure for 2. the reasons for the failure to attract, place or retain claims aclusr!r!.. r,fers to the glowing advancement op- women in these job classifications: poromitie,. ay:3 the claims adjuster." a. were known or should reasonably have been known to the Company; and b. the Company would have overcome or significantly "The !:tthis case establish th. existence of a diminished the problem by the application of counter- of sex discrimination. The burden there- measures which were known or should have been known upor hift,.:dto Liberty Mutual to establishthat these to the Company and which were reasonable in light of statistics were misleading or to establish non-discriminatory sound business practices. reasons for its policies. Despite its assurances that 'good and sufficient reasons for the existence of these statistics, "C.1. In all job classifications other than 6, 8 and 9, together with a full explanation, will he offered in due and with respect to male targets in job classifications 6, course at the proper time, the district court found that 8 and 9, a Company will be in compliance with its carry- Liberty Mutual's response to plaintiffs' motion 'failed to forward targets, or with the intermediate targets estab- address this burden at all,let alone rebut the Plaintiffs lished pursuant to the January 18, 1973 Decree, whichever evidence.' The time for explanation has come andgone. are applicable, where the Company made 'good faith ef- We believe the evidence established asa matter of law forts' to achieve such obligations or targets. the existence of sexual discrimination in violation of Title 2. For purposes of this subsection 'good faith efforts' VII." are those efforts which areasonably prudent manager

FEDERAL COURT DECISIONS 45 would have foreseen and undertaken in furtherance ofa females who are employed in job classifications 6, 8 and 9; legal obligation. 3. develop, use and publicize visual aids specially de- 3. Indetermining whether a Company made 'good signed to attract females to apply for jobs in job classifi- faith efforts' to achieve carry-forward obligations or inter- tions 6, 8 and 9; mediate targets the extent of the numerical difference be- 4. conduct where geographically feasible and internally tween the obligation or target and the Company's achieve- publicize tours for female employees of plant training ment shall normally be considered significant only where schools applicable to job classification 6, 8 and 9; the Company failed to achieve 80% of the obligationor 5. develop recruiting literature (e.g., posters and hand- target." outs) specifically designed to encourage female employees to transfer to jobs in job classifications 6, 8 and 9; 6. explain the operation of the Transfer Bureau and/or "APPENDIX B job posting and bidding procedures. Appropriate transfer request forms and/or sample bid letters will be distributed "The following actions shall, if implemented bya Com- at the conclusion of each session under 2, 3, and 4, above; pany. constitute prima facie compliance, as provided in 7. place supplies of transfer request forms on ornear Section VI, with such Company's obligations to make bulletinboards or other appropriate locations so that good faitheffortstoachieve intermediatetargetsfor employees need not go to their supervisors for them; women in job classifications 6 and 9 and for jobs in job 8. inform employees of projected openings or actual classification 8 designated as non-traditional.' Modifica- opening in job posting and bidding companies by job title tion to Transfer Bureau, selection, Employment Office, and and locations; training procedures shall be implemented by the beginning 9. inform employees who have requested transfer toa of the carry-forward period. Recruiting procedures shall job in job classifications 6, 8 or 9 of the other jobs within be applicable beginning withthe carry-forward period that classification, provide copies of the job briefs and where employees or applicants are being sought for vacant offer to provide counseling; positions. Where any Bell Company has in effect, or may 10. inform female employees who file transferrequests in the future have in effect, a posting and biddingsystem, for job classification 10 of the availability of jobs in job or other system, the Company's obligations under the Ap- classifications 6, 8 and 9; pendix B will he carried out within the procedural frame- 11. Where a Company's tuition aid program includes work of such system. training for jobs in job classifications 6, 8 and 9, such Company will inform and encourage female employeesto "I. General seek training which qualifies for such aid. The Transfer Bureau and Employment Office serving an establishment shall review quarterly its pending transfer B. Administration requests=andemploymentapplicationstodetermine 1. assign to a specific person or persons in the Transfer whether the combined application requestsare sufficient Bureau the duty under 4.2 of the Model Upgrade and to meet projected needs; however, the Transfer Bureau and Transfer Plan of reviewing less than satisfactory perform- Employment Office shall review on an on-going basis pend- ance ratings to determine whether such ratings are reason- ing transfer requests2 and employment applications.If able and would adversely affect performanceon the re- the number of candidates are not sufficient tomeet quar- quested jobs; terly needs, the Transfer Bureau and Employment Office 2. provide the Transfer Bureau with complete and time- shall undertake internal and external recruitment efforts, ly (at least monthly) allocation of opportuntiesreports as listed in sections II and III. against which deficiency notations may be checked; 3. the Transfer Bureau shall receive all requisitions and note the proper deficiencies; "II. Transfer Bureau A. Recruiting 4. transfers will be concluded in as expeditiousmanner as possible, needs of the business permitting; if the trans- I. survey theinterestof female employees, identify fer cannot be concluded within 60 days, the supervisor methods to increase applications, and take steps designed will justify in writing the delay to the Transfer Bureau;3 to implement these methods, including the following steps; 5. 2. develop 'living witness' recruiting techniques using if a vacancy occurs and there isno transfer request on file from an appropriate deficient or underutilized group member for the job at the location; "' Joh Classification 8each Company shall furnish Plaintiffs a list of jobs in the job classification 8 designated as non- traditional." -3 In posting and bidding companies in accordancewith con- -2 In posting and bidding companies this will include a com- tractual provisions, successful candidates will be releasedto parable list called 'Available Qualified Candidates.' assume their new positions in a reasonable period of time."

46 THE CONFERENCE BOARD a. the Transfer Bureau shall canvass those persons who tion equipmentto expose applicants to jobs in jobclas.,i- filed requests for the same job within the normal area of fications 6, 8 and 9; consideration. 2. recruit fromhigh school and accredited trade school b. canvass those persons who are qualified and who graduating classes, participatein job fairs and conduct filed requests for other jobs in the same job classification seminars and conferences for teachers and guidance coun- within the normal area of consideration. selors informing them of the courses of study which will c. subsequent canvasses will exclude only those p::rsons bestfitstudents for telephone employment, emphasizing requesting exclusion. the need to educate students in non-traditional courses, Notations will be made on an individual's transfer request e.g., females in shop courses; acknowledging the results of the canvass or in the case 3. institute "living witness" programs in all phases of of posting and bidding companies on the 'Available Quali- recruitment; fied Candidates' file. 4. integrate recruiting for job classification 6, 8 and 9 C. Selection into the employee recruiting program; I. During the period of priority placement of deficient 5. engage in specialized recruiting for job classifications groups pursuant to paragraphs I,B. 2(a) and 3, of this 6, 8 and 9 through ordinary media channels; supplemental order, for those jobs for which the depart- 6. make substantial recruiting contacts with likely non- ment makes the selection, the list forwarded by the Trans- traditional sources, e.g. military bases and the groups listed fer Bureau to the department in filling a requisition shall in the Resource Directory ( Model Affirmative Action Plan, contain only qualified candidates from the deficient groups Exh. 7); in accordance with the priorities established in sections I, 7. conduct tours of the plant training facilities for em- B, 1-3 of the supplemental order if available. The depart- ployment interviewers where geographically practicable; ment shall select from the list so long as candidates meet- 8. confer with local state employment service officials ing the criteria ofI,B,1,a-d, or those persons who in to emphasize the Company's interest in securing applica- 1974 met the criteria of paragraph I, B. 1 a-d, are on the tions for job classifications 6, 8 and 9. listOtherwise, where paragraph B, 3, applies, the depart- B. Administration ment may select from other than the list, using the same I.Maintain information supplementing the job briefs criteria, a member of the same race, sex, ethnic group, on job duties in job classifications 6, 8 and 9 (such infor- subject to priority placement; mation will be available for review by any appropriate 2. When the period of priority placement of deficient collective bargaining representative); groups pursuant to paragraphs B, 2 and 3, of this sup- 2. provide the Employment Office with complete and plemental order is not in effect, for those jobs for which timely information on the establishment's performance on the department makes the selection, all selections of per- anallocation of opportunities basis; sons not on the list of candidates supplied by the Transfer 3. cross reference applications for employment where Bureau shall be justified in writing to the Transfer Bureau. a second or lower preference for employment in job classi- A copy of this justification shall he sent to the immediate fications 6, 8 and 9 is indicated; superior of the person making the justification, and the 4. seek an adequate race, sex, ethnic mix in employ- superior shall initial and retain that ropy. A specific per- ment office staff, particularly interviewers; son or persons in the Transfer Bureau shall be assigned 5. do not discourage further interest of members of the duty of verifying and evaluating the reasons set forth underutilized groups after placement shares are met. in the justification. If the evaluation results in a determina- tion that the selection was not justified the Transfer Bureau "IV. Plant Training [Job Classifications 6 and 9] shall refer to the EEO Coordinator for corrective action. A. Orientationestablish programs under which pros- A record shall be maintained of this corrective action; pective women job entrants will be offered the opportunity 3. Once a list of candidates has been supplied to the to visit a field location prior to employment or transfer to department, withdrawal or hold on a requisition shall be the extent practicable. A supervisor will be responsible for treated in the same manner as a selection from other than conducting the visit. the list. (Appendix B, II. C, 2.) B. Smaller climbers will he provided for women who need them. "III. Employment Office C. Every person engaged for an outside plant craft job A. Recruiting will he provided an information sheet which outlines the . 1. Use visual aids together with sample or demonstra- type of clothing necessary for performance of the job. "4'Normal area of consideration' as used herein shall mean When such items are not generally available, the Com- theappropriategeographicareatakingintoconsideration pany will identify suppliers and so inform the employee. geographic distribution of locations having the job title, tradi- D. A new, self-paced training program for learning pole tional transfer patterns and reasonable commuting distance." climbing willhe provided. Climbing training will be ex-

FEDERAL COURT DECISIONS 47 tended over a period of time in sessions of lessthan one her employees with regard to work assignments, training, full day to reduce the impact of physical fatigue.The transfers, advancements and other conditions and privi- training will provide remedial activities whena trainee leges of employment. That responsibility includes the obli- fails certain exercises via recycling through the exercises. gation of taking corrective action toassure that employees Trainees will be given adequate opportunitiesto meet respect the rights of fellow employees to seek and hold criterion and mastery tests of the lessons beforedismissal non-traditional jobs. from the training program. The exect number ofopportuni- ties will be determined by field Management employees have been informed that their tests. The field testing job performance is being evaluatedon the basis of their should be completed by summer, and the final course ma- equal employment opportunity efforts and resultsas well terials will then be provided, stocked and beready for as all other job related criteria. distribution. A new self-paced program for learningpole Supervisors at all levels of management regularly review climbing will be available to the telephone companies and the progress of their subordinates to besure that non- used as required starting, where geographicallypossible, discrimination is a fact. by December I,1975. In the interim period, operating If the Company determines that discrimination,on the companies will use either a self-paced trainingprogram, basis of race, color, sex, religion, national origin the fall-safe harness or other modifications in or age, training de- has occurred those responsible will be subject to appropri- signed to improve the successrates of women in pole ate disciplinary action, up to and including dismissal, climbing training. depending on the severity of the case. E. Advanced Trainingmonitor therace, sex, ethnic Nothing in this provision will be constrt;ed composition of the employees attending as modifying courses which the grievance :Ind arbitration procedures contained inap- develop them for promotional or other opportunitiesto plicable collective bargaining agreements, insure that qualified employees nor any standards on a race, sex basis have of discipline otherwise applicable thereunder. equal access to these courses. If the compositionindicates underrepresentation of underutilized groups, determine the "VII. Modifications of this Appendix causes of such underrepresentation and take stepsto cor- rect it. A. Where a Company determines thatany action re- F. Studiesconduct studies, quired herein has proved ineffective in achievingtargets suchasinterviews and or eliminating deficiencies, it may propose an alternative questionnaires to successful and unsuccessful trainees,to action to the government plaintiffs; determine problem areas and characteristics of successful B. Where the government plaintiffs determine that end unsuccessful trainees. an additional action is a necessary part of 'good faith efforts,' G. Data on assignment to andperformance in entry they may propose alternatives to the Companyor Com- level training courses will be collected andanalyzed by panies involved." race, sex, ethnic group. The results will he monitoredto identify problems in course completion byrace, sex, ethnic group. (These excerpts deal with a special fund thatis being "V. Placement established in addition to the lumpsum payments that will he made to certain employees.) When practicable, women will be assignedto work loca- tions where other women are presently assigned. "I. Each Company listed on Appendix A shall When a new employee reports toa work location, the con- tribute ... to a Bell System Affirmative Action Fund. . .." supervisor will spend the timenecessary to assure that the employee is knowledgeable of job requirements,Company policies, Company benefits, safety regulationsand equal opportunity policies. "2. The AT&T Company, through its Human. Resources The supervisor will also cover the highlightsof the initial Development Department, will administer the expenditure training process. Individual assistance, guidance,advice and instruction will be accorded the of this fund on affirmative action efforts in additionto employee early in the those required by the January 18, 1973, Decree work situation, in the first weekon the job if possible. to or pro- further enhance her abilities vided for in Appendix B to this Order and for the benefit on the job, including addi- of members of some or all of deficient tional driver'sinstruction, climbing instruction and joh groups listed in accompaniment by the supervisor. Appendix A. "3. Examples of programs to which this BellSystem Affirmative Action Fund may he appliedare as follows: "VI. Responsibility and Accountability a. Studies designed to examine equipment used in craft Itisthe personal responsibility of each management positions which has been an obstacle twomen's perform- employee to provide equal opportunity forall of his or ance in classifications 6 and 9 as fo;'ows:

48 THE CONFERENCE BOARD I. Ladder aids judgments ofinterviewers were foundtodiscriminate 2. Manhole covers against black applicants. Though Edison offered justifica- 3. Cable lashers tion for its hiring practices, the findings are supported by 4. Underground cable pulling operations substantial evidence. 5. Drop-wire operations With respect to placement and promotion, the evidence 6. Insulating gloves relating to Edison's testing program established the exist- h. Nlanagement Training Programs ence of practices and procedures which consigned black 1.Determine technical skills and knowledge required employees to low-opportunity jobs. In light of proven dif- for certain 2nd and 3rd level management jobs and develop ferences in the scores of black and white subjects, Edison courses to enable such persons to move from non-technical failedto demonstrate adifferential validityforitstest management jobs to technical management jobs. batteries. Further, the court was justified in finding that 2. Institution of a 1st level Supervisory Relationship none of thetestbatteries had been properly validated Trainii.e! Program designed to improve supervisory effec- considering job performance, the fact that no blacks were tiveness in working with employees in non-traditional jobs. involved in some testing, the use of relatively high cutoff 3. Conduct a feasibility study on the valueofAware- scores on many of the tests and the fact that many had ness Training Program Packages for supervision of minor- not been evaluated for an excessive period of time. Claims ities and female managers. of validation studies by Edison which were unsupported c. Mechanical and Clerical Skills TrainingThe devel- by written records could properly he discounted. The court opment of a Mechanical and Clerical Skills Internship relied on exhibits in the government presentation to find Program for deficient group members in certain jobs un- that substantial numbers of blacks were held back though der job classifications 8.11,12,13. This program will they had demonstrated qualification,. for the jobs they include the identification of requirements for these jobs. sought which were superior to those of successful white counseling of persons in the program as to the require- bidders. The evidence was in conflict, but none of these ments for these jobs and scholarship aid for training in findings may he held clearly erroneous." these jobs. d. Identification and the establishment of contacts with special interest groups with expertise inrecruiting and referring minorities and females. "Edison argues thatitno longer engages in discrimi- e. Establishment of recruitment centers in high impact natory practices and that the record of recent years shows minority neighborhoods for entry level clerical and craft a sharp increase in the hiring of blacks. We are urged to positions." follow the Eighth Circuit inParham v. Southwestern Bell Telephone Co... ..where it was held that, in spite of past EOC v. Detroit Edison Company discrimination, no injunctive relief was necessary or ap- Excerpts from the decision of the U.S. Court of Appeals. propriate in view of the great strides which had been made Sixth Circuit (Cincinnati 1. 515 F. 2d 301 (1975). since the institution of an affirmative action program in (These excerpts deal with discrimination in initial hir- 1967. Though the record in the present case reflects some ing, placement and promotion practices. Sec also the fol- corrective actions on the part of Edison in recent years, lowing excerpts on appropriate classes.) we are unable to conclude that the district court was clearly erroneous in finding that Edison's efforts had been The record in this case supports the finding of the largely unproductive. Counsel for Edison have also as- district court that there was a history of racial discrimina- sured the court that the company is now under new man- tion in the employment practices of Edison. These prac- agement which is committed to equal employment oppor- tices affected the hiring of blacks, as well as their initial tunities. InUnited States v. I.B.E.W.. Local 38, ...the placement and advancement after becoming employees.... appearance of new leadership in a union was held not to The statistical evidence aloneshowing a disproportionate- justify withholding affirmative relief. ly low number of black employeeswould he sufficient to "While concludingthataninjunction was properly support a finding of discrimination in hiring.... How- entered, the court must carefully examine other remedial ever,a great deal of evidence was produced of other provisions of the district court's order in light of the pro- practices of Edison which served to limit the number of visions of the Act and court opinions which have dealt black employees and torestricttheopportunitiesfor with questions similar to those raised in this appeal." advancement of those who were hired. The practice of Hying on referrals by a predominantly white work force r.ther thzfseeking new employees in the marketplace wa:: found to he discriminatory. The use of racial All black employees of Edison are eligible to he con- ccdir.g of applications and heavy reliance on subjective sidered for back-pay awards. There was no claim of un-

FEDERAL COURT DECISIONS 49 J00 lawful discharges inthis case, but theremay be former ate retroactive job seniority and fringebenefit eligibility employees who have left the service ofEdison and who for individuals subjectedto discrimination in hiring. See should participate in the hack-pay provisions of the decree also Franks v. Bowman Transportation.excerpted on page as finally formulated... . IR]ejected black applicants for 22, now being reviewed bythe Supreme Court.) employment must (also] he considered forback pay. . . . Not every black employee or rejected black applicant of "Whateverthedifficultiesof determining hack Edison will automatically qualify for pay a back-pay award. awards, the award of retroactive jobseniority offers still But each such person should he givenan opportunity to greater problems. Seniority is a system of job security... establish his entitlement." . It is justified among workers bythe concept that the older workers in point of service have earnedtheir retention of EEOC t. Detroit Edison Company jobs by the length of prior services forthe particular em- Excerpts from the decision of the U.S. Court ofAppeals, ployer. From the employer's pointof view, itis justified Sixth Circuit (Cincinnati), 515 F. 2d 301(1975). by the fact thatit means retention of the mostexperi- (These excerpts deal with the determination ofappro- enced and presumably most skilled ofthe work force. priate classes in a Title VII action. An"amorphous" class Obviously, the grant of fully retroactiveseniority would of those who would have applied toa company but for its collide with both of these principles. reputation of not hiring blackswas rejected.) "In addition, where the burden ofretroactive pay falls upon the party which violated the law, theburden of "The district court properly considered the claimin the retroactive seniorityfor determination of layoff would government case that black citizens had been rejectedfor fall directly upon other workerswho have themselves had employment and otherwise denied employmentopportuni- no hand in the wrongdoing found by the DistrictCourt. ties by Edison because ofrace. "There is, however, no prohibitionto he found in the .. .ITjhe court also included in the class represented statute we construeinthis case which prohibits retro- by the private plaintiffs thosepersons who would have active seniority and, of course, theremedy for the wrong applied for employment with Edisonexcept for its reputa- of discriminatory refusal to hire liesin the first instance tion of not hiring blacks. Although theprivate plaintiffs with the District Judge. For his guidanceon this issue pled that Edison had established a reputation in the black we observe, however, that a grant of retroactiveseniority community for discriminating against applicantsbecause would not depend solelyupon the existence of a record of race or color, there was no allegation thatthis reputa- sufficient to justify hackpay under the standards of the tion actually deterred anyone from applying for employ- Back Pay Section of this opinion. ThecourtIA 'ild,in ment. No witness testified that he would have appliedfor dealing with job seniority, need alsoto consider the in- employment at Edison but was deterred becauseof its bad terests of the workers who might he displacedas well as reputation. Several employees of Edison testifiedto a repu- the interests of the employer in retainingan experienced tation for discrimination against blacks, butthese were work force. We do notassume, as our brethern in the people who did not rely on the reputation andwere ac- Fifth Circuit appear to,... that such reconciliation is im- cepted for employment. The government didnot refer to possible, but as is obvious, we certainlydo foresee genuine this class in its complaint and requestedno relief for it .. . difficulties.... counsel for the government referredto this as an 'amor- "On remand the District Judgemay desire to hear the phous' class and stated that if sucha class existed it would policy questions involved in this problembefore remand- only have been between 1965 and 1968. Thegovernment ing the individual claims to the Master.For purposes of admitted that inclusion of such a class wouldcreate serious that hearing notice should he givento the employees likely problems because the identification of individualmembers to he affected and intervention should heallowed from would he virtually impossibleas would be a determination appropriate representatives. of the availability of openings for suchpersons. "What we have said concerning jobseniority does not, ". . . lTJhe evidence concerning hiring procedures,re- of course, apply to the fringe benefitsof employment. jections and even reputation wascompetent to prove the Where vacation schedulesor pensionrights(or other allegations of the government complaint.Its admission fringe benefits) are determined by dateof hire, we per- without specific objection . was not sufficient to enlarge ceive no reason why that date in thesecases should he the class represented by plaintiffsto include non-employees other than the date which the trialcourt fixes as the date of Edison." when the employee would have been hired,absent the illegal hiring practices which the DistrictCourt has identi- Meadot..s t. Ford Alotor Company fied and enjoined." Excerpt from the decision of the U.S. Court ofAppeals. Sixth Circuit (Cincinnati). 510 F. 2d 939(1975). United States t. Georgia Power Company (This excerpt deals with the determination of appropri- Excerpts from the decision of the U.S. Courtof Appeals.

50 THE CONFERENCE BOARD

54 Fifth Circuit (New Orleans ), 474 F. 2d 906 (1973). between the parties on this appeal concern interpretation (These excerpts deal with the need foran employer's of the standard by which the Commission's employment validation studies to take into account theway the tests practices are to he measured. Numerous ca,es in the fed- are actually being used by the company.) eral courts have involved challenges to standardized apti- ". Not only was the Hite Study, as conducted, sub- tude tests on both constitutional and statutory grounds. No court has distinguished the standard mandated by the stantially at variance with the minimums of theEEOC Fifth and Fourteenth Amendments fromtt.atspecified validationguidelines.,commended by Griggs,but,as significantly, its premises also departed from the practices by Title VII of the Civil Rights Act of 1964. In 1971 the Supreme Court defined the Title VII standard for private followed by the company in the testingprogram as admin- istered. For these reasons the study's final inductiona employers in Griggs v. Duke Power Company, and since that decision Congress has extended the reach of Title VII positive correlation of testresults vis-a-vis job perform- ance at Georgia Powerwas invalid. We conclude that to public employers, including the Federal Government. the district court erred as a matter of law in relying Congress clearly intended to give public employees the on same substantive rights and remedies that had previously the Hite Study to find that Georgia Power hadmet the burden of manifesting its tests were job related. been provided for employees in the privatesector; beyond "However, testing is an expressly approved employment that, the applicability of the Griggs standard has also been recognized in numerous cases involving public practice under Title VII.Itis an effective tool for em- em- ployees not grounded on Title VII. So, notwithstanding ployee selection 'provided...itis not used to discrimi- the several equal protection guarantees implicated inthis nate because of race....' Moreover, standards for testing validity comprise a new and complicated litigation. the Griggs standard is themeasure of the rights area of the law. and liabilities of the parties.... While the Hite Study did not demonstrate compliance with "The Commission does not maintain pass-fail data the Act, we hesitate to penalize this litigant, the firstto on confront such a demanding burden of proof. for the FSEE by race. As a result, any evaluation of the racial failing to impact of the FSEE must he based on data approximating introduce a more rigorous study. Hadour standards been ,:irect evidence of black performanceon the FSEE. Ap- articulated at the time of trial, it may he that thecompany could have proven its compliance. Therefore, pellants have produced two statistical analyses, of informa- rather than tion furnished by the Comniission, clearly establishing now proscribing the testing program which Georgia Power that whites perform much better than blacks." has used. we remand this phase of thecase to the trial court with directions to permit the companya reasonably prompt opportunity to validate the testing programap- plied to the plaintiffs, in accordance withthe principles "T!se factual demonstration made by appellantsis cor- enunciated in this opinion." roborated by the 'substantial body of evidence that black persons ..1.1 other disadvantaged groups perform on the DottglasV.Hampton average far below the norm for whites on generalized intelligence or aptitude Excerpts from the decision of the U.S. Court of Appeals. tests.'Judicial decisionsinthe 'ever-extending series of challenges to civil service exami- District of Columbia Circuit, 10 FEP Cases 91(1975). nations'unec,iiivocallyestablishthat (These excerpts deal with establishing the validityof blacksaretest- a major civil service examination that has a discriminatory rejected more frequently than whites, and that thisphe- impact. The case is being appealed to the Supreme Court.) nomenon is the result of awig history of educational and cultural deprivation miner thanan innate lack of qualifications. "The FSEE 'Federal Se, vice Entrance Examination)is the 'primary avenue of entry' into managerial and Ihese data have great importance inany determina- profes- tion of the legality of the FSEE. In considering the sional positions in the federal civil service. Th2examina- 1972 tion was developed by the Commission for this amendments to Title VII, Congress recognized that stand- purpose ardized tests in hiring for the federal service and was first used in 1955. Itis administered to approxi- may operate to the detriment of disadvantaged minorities: mately 150.000 applicants annually, and the resultsare used to fill about 10,000 positions in over 200 job cate- 'Civil Service selection and promotion requirementsare gories throughout the Federal Government. Thejobs are replete with artificial selection and promotion requirements widelyvaried,includingthoseof cc voter specialist, that place a premium on "paper" credentials whichfre- customs inspector, economist, psychologist, social service quently prove of questionable valueas a means of pre- representative and many more. dicting actual job performance. The problem isfurther "It goes without saying that the Commission ispro- aggravated by the(Civil Service Commission's] use of hibited from discriminating on the basis ofrace in the general ability tests which are not aimedat any direct hiring or rating of federal employees. The major differences relationship to specific jobs. The inevitableconsequence

FEDERAL COURT DECISIONS 51 of this, as demonstrated by similar practices in the private apply a 'strict scrutiny' standard. Nor do we think the sector, and. found unlawful by the Supreme Court, is that meaning of the term in the context of test validity is clear cla:.ses of persons who are culturally or educationally dis- and unequivocal. The Commission's regulations are suf- advantaged are subjected to a heavier burden in seeking ficiently flexible to permit an interpretation that will com- employment.' port with present statutory and constitutional standards of equal employment opportunity. Certainly the unceainty "The responsihility of the courts to give tee data their of the standard to he applied will not justify reversing a just due is thus clear." discretionary decision to seek the aid of agency expertise and i emand the case to the Commission." "When a showing of racially disproportionate impact has been made, the courts have required employers to Bridgeport Guard. Inc.r. Alembers of Bridgeport C.S. prove the validity of the challenged employment prac- Coned. tice. . . . The courts that have expressed a view on the Excerpts from the decision of the U.S. Ciit of Appeals, relative merits of these techniques have uniformly mani- Second Circuit (New York), 482 F. 2d 1333 (1973). fested a preference for proof of empirical validity." (These excerpts deal with discriminatory testing require- "Appellees do not contend that the FSEE has empirical ments for policemen under the Constitution and the Civil validity. Indeed, two investigations of the empirical validity Rights Acts of 1866 and 1871. The Court notes that the of the FSEE have been made. and neither would support Supreme Court has also cited such cases io connection a claim for empirical validity.... with Title VII.) "Appellees maintain that they have shown the FSEE to he joh related through construct validity. The Commis- "An applicant forfileBridgeport Police Department sion, they say, conducted extensive job analyses and con- must meet age and physical requirements, possess emo- cluded that verbal and quantitative abilities were signifi- tional stability. have good moral character and an aptitude cantly related to ahility to perform the jobs for which the for increasing his knowledge of crime detection and law FSEE is used, and the FSEE was then designed to meas- enforcement techniques. He must take a written exam ure these abilities. Appellants argue that empirical validity with a passing grade of 75 on a scale of 0 to 100. The isrequiredinall cases and that appellees' assertion of grade is established in the rules of the Civil Service Com- construct validity willnotfulfilltheir heavy burden of mission and applies to all Civil Service tests given in the proving joh relatedness. City. The applicant's prior training and experience is rated "The guidelines promulgated by the Equal Employment according to a chart assigning arithmetical values for ex- Opportunity Commission, which incorporate the profes- perience and higher education. A background investigation sional standards statedby the American Psychological is conducted for all who pass the written exam and the Association, recognize the value of construct validity only physical requirements. The director of Civil Service re- when proof of empirical validityisnotfeasible. These views the background investigation and in his discretion guidelines have been cited with approval by the Supreme determines whether the applicant is suitable. A numerical Court. followed by all courts dealing with these issues, and rating is then assigned by weighting the exam grade at recognized as controlling in at least one circuit. We think 70% and training and experience at 30%. The eligibility it unwise to depart from these accepted principles at this list ranks the successful applicants in accordance with this stage in the development of the law concerning equal em- weighted average and the listis valid for two years. ployment opportunity. We holdthatconstructvalidity "The claim of the plaintiffsis that their constitutional may he considered only after a showing that it is infeasible rights to Equal Protection under the Fourteenth Amend- to undertake proof of empirical validity." ment have been violated primarily because the written examination denies them equal employment opportunity. The court below found that theplaintiffs had made a prima facie showing of discrimination and the evidence "Appellants are also concerned that the standard for amply supports the finding. Between 196and 197' some establishing test validity set out in the Commission's guide- 644 persons tookthe policeman's written examination. lines are weaker than those imposed by the EEOC guide- 58% of the 568 White candidates passed vhile only 17% lines and the legal precedents. Primarily because the Com- of the 76 Black and Puerto Rican applicants were siccess- mission apparently has never interpreted its guidelines in ful. . . . This is a greater disparity than that existing in an adjudicative proceeding. we are uncertain as to what comrarahle cases where courts have found that a case of standards are incorporated therein. The guidelines require prium facie discrimination was established. Moreover while a 'rational relationship' between the tests and job perform- Bridgeport has a combined Black and Spanish speaking ance. but we do not understand this term to carry the population of 25 , members of theseminorities only same meaning as in equal protection cases that decline to represent 3.6% of the Departmuu. 1'is further significant

52 THE CONFERENCE BOARD 5 G that the cities oi Hartford and New Haven Coanecticut, closely duplicates the actual duties to be performed.... which have roughly the same population andthe same Whileitis concededly difficultto prepare examinations size police departments, show..decidedly better record which can accurately calibrate and uf minority police employment." measure the ability of aperson to perform the duties of a policeman which combines not only professional skills but decisionsinvolv- ing judgment and tact and qualities of personalcourage, Fh public employment test cases reui genrris in compassion, dedication and moral probity,we are per- that the classification is not made oy the municipal body suaded thatthe challenged examination was primarily but resulu, from a te:,:ing device which 'n fact results in based upon verbal skills and was notsignificantly job an invidious discrimination since it disad.antages minority related. groups. Hence, while the right to nchlic employment is "The examination used was not prepared bythe de- not fundamental in an Equal Protection context... there fendants but was purchased from the Public Personnel isa suspect(rac:a1)classification which ensues. There Association (PPA ), a private nonprofit corporation.It was have been so many of these cases in litigation that a viable prepared in 1953 and is utilized by several hundredgov- test has emerged which in fact was adopted by the court ernmental agencies. Itis basically an intelligence test not below and has wide judicial support. Wnere the plaintiffs geared in any significant fashion to establish whetheror have established that the disparity between the hiring of not the applicant will he a good policeman. Thusmany of Whites and minorities is of sufficient magnitude, then there the vocabulary. and arithmetic question:,are only super- is a heavy burden on the defendant to establish that the ficially or peripherally related to police activity.For ex- examination creating the discrimination bears a demon- ample: strable relationship to successful performance of the jobs for which they were used. This essentially was the test '69. Cartridges cost retail $3.00 for boxes of 20. The whole- sale cost is $2.25 a box plus $.25 a hundred shippirg charge. employed by this court in Chance Iv. Board of Examiners, How much is saved if 300 are purchased wholesale?' 458 F. 2d 1167 (2d Cir 1972 )1 and by the First Circuit in Castro v. Beecher, 459 F. 2d 725... (1972). This 'jot) While policemen do use cartridges, the questionhas in fact relatedness' test was recently employed by the Supreme nothing specifically to do with the work of thepolice. If the word'Bible' Court in McDonnell Douglas Corp. v. Green.... While were substitutedfor'cartridge,'the McDonnell was a Title VII case and did not technically answer would be the same but it would hardly be proba- involve Equal Protection issues,itis significant that the tive of an applicant's fitness for the ministryor even as a court relied lot only on Griggs v. Duke Power Co.,... Bible salesman. The question selected isnot atypical. Aside but also cited both Castro and Chance which were Sec- from irrelevancy the examination's stresson vocabulary tion 1983 cases as is the case before us.... and verhal skills produces a cultural bias accordingto the "We therefore turn to the question of whether the de testimony of Richard Barrett, a recognizedexpert in test- fendants have established thatthe written examination ing.Moreover, that part of the test which doesseem under attack was 'job related.' . . . Judge Newman me- relevant, the ability to observe and remember facesand ticulously reviewed the evidence and concluded that the data, consists of displaying eight sets of front andprofile defendants had failedto sustain their hurden. We can- mug shots, but all of the faces are of Whites. Barrett testi- not characterize thisto he aclearly erroneous finding. fied that it was probably easier for Whitesto dist:aguish "The best method of establishing job relatedness is to among White faces than for Blacks. There issome support establish that the test had 'predictive validity.'Criteria for this view. The entrance examination is furthervulner- must he identified which indicate successful job perform- able in that the City ordinance mandatesa uniform cut- ance. Test scores are then matched with job performance off score of 75. This is an arbitrary determinationindica- ratings for the selected criteria. This establishes realistically tive of an archaic testing ,;stem particularlywhere there whether the applicant who reczived high scoreswas ac- is no evidence of weighing of questions basedupon, actual tually performing as predicted. No validation studies have job requirements." been conducted here eithfsr before theexams were given or later. Two oilier recognized methods of insuring that Vulcan Soc. o N.Y.CityFireDept..Inc. v. Civil Service examinations are job related are based upon so called Commission 'construct validity' and 'content validity.' Construct vali- Excerpts from the decision of the U.S. Court of Appeals, dity would he achieved if there had been an identification Appeals, Second Circuit (New York ), 490 F. 2d387 of the chara teristics 1...lieved important to successful job (197?.). performance followed by the structuring of an examina- (These excerpts deal with the lack of job relatedness of tion directed to a determination of the degree to which a written examination to select fireman, which hadan the applicant possessed the required characteristics. Con adverse imp::ct on the employment opportunities of Negro tent validity would he e.;tal hshed if the content of the test and Hispanic applicants. The suitwas brought under the

FEDERN_ COURT DECISIONS 53 t: J I Civil Rights Act of 1871 and the Fourteenth Amendment The only witness who testified concerning the construc- to the Constitution.) tion of Exam 0159 was Edward Scheinkman, not a Fire Department official, but Assistant Chief of the Division of "On June 12, in a comprehensive opinion, the district The Department of Personnel charged with responsibility judge ruled that the written examination had a discrimi- for its preparation. Mr. Scheinkman began preparing the natory impact and that it was not sufficiently job-related to examination by gathering together the file on the previous justify its use.... examination, the former notice of examination, the class specifications (a very cursory description of the job con- tained in the notice of examination) and a magazine pub- "Although the judge placed particular emphasis on the lished by the Department. He contacted Chief Hartnett, unrelatedness of the civic affairs questions, this was not who was then in charge of the Training Division of the the limit of his -riticism of the written examination. He Department, to inquire as to the Department's view of the sustained plaintiffs' contention that defendants failed to areas of knowledge which should he included in the exam- perform an adequate job analysis in preparing the exami- ination. Hartnett suggested that the subjects covered in the nation and said that 'The record compels the conclusion last test should be covered again, with the addition of a that the procedures employed by defendants to construct section on City government and current events. Somewhat Exam 0159 did not measure up to professionally accepted significantly, Fire Commissioner Lowery, with his years standards concerning content validity.' of experience as a fire fighter and as an administrator, was not consulted as to the content of the written exami- nation. Scheinkman testified that he never performed any job analyses. did not know of any which were used in the "Cases like this one have led the courts deep into the preparation of Exam 0159 and that none were made while jargon of psychological testing.Plaintiffs insistthat the he was in the division which prepared examinations for only satisfactory examinations are those which have been the job of firemen.' subjected to 'predictive validation,' or 'concurrent valida- "Appellants do not seriously assert that these findings are tion,' preferably the former. ... The judge wisely declined clearly erroneous, and our examination of the record con- to insist on either. . . . Experience teaches that the pre- vinces us they are far from being so. ferred method of today may he the rejected one of tomor- "The judge was also warranted in rejecting the testimony row. What is required is simply that an examination must of defendants' expert. Forbes McCann, that, except for he 'shown to bear a demonstrable relationship to success- the twenty civics questions, Scheinkman had achieved the ful performance of the jobs for which it was used.' miracle of stumbling into an examination that bore 'a dem- "Instead of burying himself ina question-by-question onstrable relationship to successful performance of the analysis of Exam 0159. . the judge noted thatit was jobs' without having formulated an adequate analysis of critical to each of the valididation schemes that the exami- just what the jobs were or what traits they demanded. nation he carefully prepared with a keen awareness of "Itisarguable that McCann's testimony proved the the need to design questions to test for particular traits or opposite of what he contended. Like Scheinkman, he in- abilities that had been determined to be relevant to the sisted that the purpose of the test was to examine for the job. As we read his opinion, the judge developed a sort of ability to learnto become a fireman in the probationary sliding scale for evaluating the examination, wherein the training school, not for the ability to perform the tasks poorer the quality of the test preparation, the greater must required of a fireman. Performance on a written multiple- be the showing that the examination was properly job- choice examination may well correlate quite highly with related, andvice versa.This was the point he made in the ability to learn certain skills but not with the ability saying that a showing of poor preparation of an examina- to perform them on the job." On the other hand, the tion entails the need ofthe most convincing testimony defendants could respond that since the probationary train- as to job-relatedness.' The judge's approach makes excel- ing schoolisa necessary element in becoming a good lent sense to us.If an examination has been badly pre- t,lred. the chance that it will turn out to he job-related is "12 The danger of distortion inthis regardisparticularly small.Per contra,careful preparation gives ground for an acute, since performance in the probationary schoolisalso inference. rebuttable to he sure, that success has been evaluated by means of a written examination. Thus. there is a achieved. A principle of this sort is useful in lessening the distinct possibility that a claim that the qualifying examination burden of judicial examin.,Lion-reading and the risk that tests for ability to learn in the probationary school isin fact a court will fall into error in umpiring a battle of experts no more than a claim that performance on the written qualify- ing examination predicts with reasonable accuracy perform- who speak a language it does not fully understand.. .. ance on the written probationary examination. Without evidence The court's findings with respect to the construction that the second examination is job related, such a demonstra- of th" examination were as follows: tion-is barren indeed."

54 THE CONFERENCE BOARD 56 fireman, the Department is justified in weeding out appli- The defendants and the intervenors ask us to set aside cants who cannot benefit sufficiently from the training to Judge Weinfeld's finding that Exam 0159 was insufficiently be there afforded. job-related because of the absence of a competitive, as We prefer not to enter this morass, since there were distinguished from a merely qualifying, physical examina- ample grounds for rejecting McCann's testimony even if tion. We decline to do so. his premise were to be accepted. We cite a few: His as- We can speedilyrejectthefirstground of attack, sertion that ability to comprehend written materials was namely, the absence of evidence that the minority group the most important single factor in a fireman's job is at candidates would do better than whites on a competitive war with common sense. His defense of the mathematics physical examination. This misinterprets Judge Weinfeld's questions, despite his concession that very few firemen opinion. He did not hold that the use of a merely qualify- occupy jobs that require calculating skills, on the ground ing physical in itself necessarily or even probably worked that there were only six or seven such questions on the against the minorities; what he held was that the absence test,ignored two important factors: One was that the of a competitive physical in the selection process for a scores on the examination were so closely hunched that a largely physical vocation was additional evidence of the difference of only a few points could mean the difference lack of job-relatedness of the selection procedure con- of several thousand places on the eligibility list. The other sidered as a whole. was that since many other questions either were plainly "We likewise reject the claim that there was insufficient invalid or too easy to have any differentiating effect,I2 the evidence to support this finding. Several witnesses testified six or seven mathematics questions actually constituted to the high physical demands of a fireman's job. The De- ah gut 20r.'C of the resolving power of the test. The court partment had conducted competitive physical examinations was abundantly justified in accepting the criticism of this from1919to1965,and Fire Commissioner Lowery and test by plaintiffs' experts and rejecting the defense." Fire Chief O'Hagen expressed a strong and well reasoned

preference for the practice. .. . The only truly contrary opinion was McCann's, ;Ind the court was warranted in considering his reasons to be unpersuasive. Itis true that "12 We cite as an example the 20 questions in Part II of the sonic of a fireman's duties, e.g., inspection, may require examination which were intended totest vocabulary. More little or no physical proweand that. . .the intellectual than 95'7; of both a sample group of high scorers and a sample content of a fireman's work may have increased far be- group of low scorers on the.xamination got the same six yond that familiar in our youth. But that does not mean vocabulary questions right. Another two words were correctly that no significant physical content remains. identified by more than 90e;- of the low scorers and close to "We stress the limited nature of our holding. We do not 10(lf.: of thehighscorers. Therefore, practically speaking, read Judge Weinfeld as having said that if a written only twelve words had any effect on the outcome. Those in- exam- cluded 'attest,* *destitute.' luminous,"apcx,"we,! :deficit,' and ination were sufficiently job-related, a competitive physical 'irate.'Itis hard to understand how the abilitytofind the would always be constitutionally required, although he closest analogue to most of these words is a good test of the obviously would view such a physical with favor. There ability to fight fires or. for that matter, to absorb written ma- are consideration Isic] of cost and convenience that militate terials about this in a probationary training school. against giving a competitive physical to an extremely large -Common sense also suggests many flaws inthe physics- group, including some who will rank so low on a proper mathematics series. One example is Question 63. which we written examination that even an Olympicscore on a reproduce below: competitive physical would not put them within hiring range. Plaintiffs say these difficulties can be readily over- '63. In what direction does come, but they do not tell us how. In any event, there is the force of gravity pull the 20 lb. weight placed no need to decide the question at this time. All that we on the board in diagram regardt.le judge as having held, and allthat we now 63? Diag. 63 approve, is that, in combination with the defects in prep- At aration and content of Exam 0159 which we have de- (A) (B) (C) (D)N scribed, the use of a merely qualifying physicalexahnna- tion rendered the Fire Department's selection procedures A high school physics student would know the correct answer insufficiently job-related to withstand constitutional att,,-..:k." is (C). but the wrong answer (A) might he more useful fora fireman on the job. The precedinp question seems equally without job relationship; while it may he of somc value fora Nondiscrimination in Promotion fireman to know that *A ball rolling along level ground will Green v. Board of Regents of Texas Tech University slow down and come to astop,' we cannot appreciate the importance of his knowing whether the force that accomplishes Excerpts from the decision of the U.S. Court of Appeals, this is called velocity. momentum, friction or equilibrium." Fifth Circuit (New Orleans),474F. 2d594 (1973).

FEDERAL COURT DECISIONS 55 (These excerpts deal with whether a university's failure ing, the disinclination of graduate students to seek her to promote a woman to full professor was because of sex direction on theses, and her failure to publish any sub- discrimination. The suit was brought under the Civil Rights stantial research.... Act of 1871.) "Dr. Green complains that the District Court refused to consider whether the University discriminated toward "Dr. Green has taught at Texas Tech University since women as a class. The District Court considered, how- 1946, except for her absence during 1951-1953 when she ever,all the evidence, including comparative charts and worked on her doctorate. First a temporary instructor, she statistics.th:it was directly related to the denial of Dr. was promoted to Assistant Professor in 1953 and to As- Green's application for promotion. This was not a class sociateProfessor in1959.Inthe1969-1970 academic action. On appeal, plaintiff concedes that no relief is sought year. she made timely application to the University for for a class. We perceive no error in the District Court's promotion. When denied, she complied with the appropri- determination as to what evidence was relevantto Dr. ateadministrative procedure. This action was brought Green's claim. when the Board of Regents refused to grant the promotion. "Plaintiff's points of error concerning the alleged failure "The District Court held an evidentiary hearing on both of the University to establish definite criteria controlling the merits of her claim and the administrative procedure promotions in teaching rank, the Court's holding that the through which plaintiff'sapplication was processed. A University had not acted capriciously and had not abused diagram of the procedure is as follows: its discretion, and the Court's requirement of direct non- HEAD OF THE ENGLISH DEPARTMENT inferential evidence of discrimination against plaintiff per- sonally all (All professors of the English Department consider and fall under the positive finding by the Court vote upon the application and may submit statements to thatplaintiff's application was givenfair and impartial the Head of the Department.) treatment and that the refusal of promotion was based DEAN OF THE COLLEGE OF ARTS AND SCIENCES on the facts of plaintiff's record, without any regard being (Six-member Promotions and Tenure Committee of the given to her sex. The University's standards are matters of Department of Arts and Sciences considers and votes upon professional judgment, and heresubstantially every the application to advise the Dean.) individual or committee in the institution's reviewing body GRADUATE DEAN questioned Dr. Green's competence.... VICE PRESIDENT OF ACADEMIC AFFAIRS "Affirmed." PRESIDENT OF TEXAS TECH UNIVERSITY United States v. N. L. Industries, Inc. TENURE AND PRIVILEGE COMMITTEE OF TEXAS Excerpt from the decision of the U.S. Court of Appeals. TECH UNIVERSITY Eighth Circuit (St. Louis), 479 F. 2d 354 (1973). (Committee reviews for determination of compliance (This excerpt deals with remedying past discrimination with due process. Applicant represented by attorney.) in the selection of individuals for promotion as foremen.) ACADEMIC COMMITTEE OF THE TEXAS TECH UNIVERSITY BOARD OF REGENTS "Illn determining an appropriate minority-nonminority FULL BOARD OF REGENTS OF TEXAS TECH hiring ratio, we think that the number of qualified blacks UNIVERSITY available is an important factor and the evidence indicates that a substantial number of blacks already working in ".. . Although her prior applications had failed to re- the plant possess the necessary qualifications for promo- ceive majority support from her own department, in 1969 tion to supervisory positions. Thus, we conclude that a plaintiff's colleagues in the English Department voted 5 to one-black-to-one-white ratiois appropriate here until15 3 in favor of her promotion. Thereafter, at every level of blacks have been promoted to front line foreman positions. review.Dr. Green's applicationreceiveda unanimous We do not think that 15 black foremen out of 100 is an negative response. unreasonable initial goal inlight of the fact that blacks At each stage of the procedure, questions unrelated to represent approximately 25 percent of the Company's pro- Dr. Green's sex were raised regarding her qualifications duction workers.. .. [This procedure does not constitute as to teaching ability, scholarship, and university and com- a quota system. because upon complete implementation munity service. Professors and administrators at all levels of this order.allfuture promotions will he on a non- of the review testified before the District Court as to their discriminatory basis and the racial composition of a job opinions of Dr. Green's work and ability which led to a classification may contain a percentage of blacks which denial of the promotion.... Even at the first stage, where may he more or less than the percentage of blacks in the her application obtainedamajorityfor approval, two other areas of the plant or in the community at large. faculty members in the minority testified that Dr. Green "The strong deterrent to the selection of black foremen, was deficient in both teaching and research as evidenced. in part. conies from the selection procedures used by the in their opinions, by students' complaints about her teach- Company. Thus we further direct that the district court

56 THE CONFERENCE BOARD order a revision of the selection system for foremen which discrimination unsupportable by business necessity,or to meets these requirements: the extent that those qualifications do not beara manifest ( I ) The Company shall promulgate in writing and pub- relationship to job performance, Gilmoremay be entitled lish throughout the plant reasonably objective standards to relief. Otherwise the trial court may properly conclude for its selection of foremen. that Gilmore was not the subject of racial discrimina- (2) The Company shall develop a roster of plant per- tion...." sonnel eligible for promotion to foreman. Gilmore v. Kansas City Terminal Railway Company (3) All plant personnel who deem themselves qualified shall be entitled to submit an application for this roster. Excerpts from the decision of the U.S. Court of Appeals, (4) The Company shall evaluate and rate candidates Eighth Circuit (St.Louis), 509F. 2d48 (1975). for the position of foreman without regard to race and (These excerpts deal with the qualificationsan employer upon reasonably objective standards. may require for promotion to supervisory and managerial (51Foremen shall be selected without regard to their positions when there has been past discrimination. They race and without regard to whether predominantly also point up the potential partial liability of the union in or predominantly white crews are to be supervised. such a situation.) (6) Those black employees previously listedas pos- "At the outset we note that employment policies affect- sessing potential as foremen shall be entitled to he placed upon the foreman's roster if they meet the appropriate ing :atpervisory and managerial positionsare not insulated from the reaches of Title VII enforcement. Our standards. own Court, as well as others, has found violations of Title VII in an (7)Foremen must be selected on the basis of merit as judged by reasonably objective written standards." employer's policy of promotion to supervisory positions not governed by union contract, but selected totally at the employer's discretion." Gilmore v. Kansas City Terminal Railway Company Excerpt from the decision of the U.S. Court of Appeals. Eighth Circuit (St.Louis), 509F. 2d48 (1975). "... Moreover, we have found that in class action dis- (This excerpt deals with an individual charge of dis- crimination cases statistics create a prima faciecase of crimination when the qualifications required for promo- discrimination specifically in the context of supervisory tion to a supervisory position by an employer are alleged personnel Such a showing of disparity between an to have a racially discriminatory effect. See below for employer's work force and the population in the relevant other excerpts from this decision.) market area has been held sufficient to shift the burden to the employer to rebut the inference that "Gilmore asserted an individual claim for relief based racial con- siderations have dictated employment choices. upon Terminal's failure to promote him to a specific lower . . . Sta- tistical evidence, however, is not sufficient level supervisory position. However, his testimony at the as a matter of law to establish a violation of Title VII evidentiary hearing disclosed that he did not possess the . .. when the de- fense of lack of qualified minority applicants is interposed requisite skills which Terminal claimed were essential to by the employer. In that event, however, 'Congress has that position. placed on the employer the burden of showing that "To establish a prima facie case of employment discrim- any ination upon private claims for relief, an aggrieved must given requirement must have a manifest relationship to the employment in question.' show: "It is then open to the plaintiffs to demonstrate a vio- '(i)that he belongs to a racial minority: (ii)that he lation of Title VII on either of two independent bases: applied and was qualified for a job for which the employer that the employment policies reflect present discriminatory was seeking applicants; (iii) that, despite his qualifications, conduct or that current policies, though neutral on their he was rejected: and (iv) that, after his rejection, the posi- face, carry forward vestiges of past discrimination. This tion remained open and the employer continued to seek represents the traditional dual focus in civil rights litigation applicants from persons of complainant's qualifications.' upon purpose, as well as effect. Discrimination resulting from either commands relief. "At issue in this case, however, unlike McDonnell Doug- "In this respect, work experience and intradepartmental las Corp. v. Green. is the question of possibly racially dis- preference are two aspects of Terminal's promotion policy. criminatory effects of the qualifications themselves. . . Without determining whether the work experience qualifi- Thus Gilmore's claim of Facial discrimination sho.'ld be cation meets the requirements of Griggs v. Duke Power reassessed after the class claims have been resolved. To Co., we note that Terminal urges that an insufficient the extent that his lack of 'skills arid experience' are at- number of minority applicants have attained the requisite tributable to present discrimination or the vestiges of past work experience in some departments and also thatin

FEDERAL COURT DECISIONS 57 other departments there is little or no minorityrepresenta- quirements . . . have impeded, in the past, affected class tion. This suggests that the bargaining representativefor members' progress toward their rightful place. Theymay those departments may have discriminated in thepast and he retained, therefore, only upon a showing of business that vestiges of that discrimination endure within those necessity." departments. The fact of possible prior union discrimina- tionisthus relevant to the determination of whether Terminal's promotion policy, which appears neutral on its "Finally, even assuming the trial court should determine face, actually carries forward the effects of prior discrimi- that each job is essential to progression, I.P. has in the nation. If it does, the intradepartmental preference must past, though in part in reliance on OFCC, retarded af- he modified by making the primary requirementone of fected class promotion by its administration of thean- experience in a functionally related job which provided nounced policies. After the McCreedy Letter, competition the same degree of skill, familiarity and knowledgethat for permanent vacancies was limited to only thoseperma- work experience within the department would havepro- nently assigned to the position immediately subordinate vided. to the vacancy. This policy effectively eliminated competition "Thus, while Title VII recognized twoseparate causes for permanent vacancies, and was totally ineffectualin of action against unions and employers . . .ii appears on rendering whole the former discriminatees the face of the record before us that the district court's "For these reasons we conclude that the present transfer, most effective remedy will include the unionsas well as promotion. and seniority practices in the production de- Terminal. To effectuate the 'breadth and flexibility . . . partment at Pine Bluff continue to perpetuate the effects inherent' in the 'district court's equitable power to remedy of past discrimination. No significantmovement to rightful past wrongs,' ... then, this remand to the district court is places has been realized by former discriminatees, although with specific directions to the plaintiffs to join the relevant some movement has been :teem Ashed. Thus some relief unions in this discrimination case." iswarranted, and the district court was in error in denying such relief." Rogers v. International Paper Company Excerpts from the decision of the U.S. Court of Appeals. Eighth Circuit (St. Louis), 510 F. 2d 1340 (1975), "The district court .r. require lhat I.P. demonstrate (These excerpts deal with the qualificationsan employer which jobs provide essential training for progressionand may require for promotion in remedying past discrimina- are supported by business necessity and which jobs. ifany, tion. They also highlightthefactthatmeeting OFCC could he skipped upon entry and promotion.The court should also review the lengths of the residency require- requitements may not satisfy Title VII reiluirements,as interpreted by the courts.) ments to determine whether they are the least restrictive means to accomplish the.f purpose and considerra hether The Supreme Court has announced thata district court functionally equivalent experience in former lines ofpro- has: gression may satisfy those requirements. Finally,the court 'rot merely the power but the duty to rendera decree should review I.P.'s administration of its policy ofadvance- which will so far as possible eliminate thediscriminatory ment of affected class membe-s to their rightful place in light of I.P.'s effects of the past as well as bar like discriminationin the ... rightful place policy [for those who have future.' been away on military leave] witha view toward tendering whole these former discriminateesas expeditiously as pos- sible and to the same extent that it Louisiana v. United States, 380 U.S.145,154 (1965) now accords a rightful (emphasis added)...." place to returning service men. Provisions ofthis relief should be made available toall affected class members regardless of whether they have declined transferoilers in the past.If these conditions are fully implemented. the -Pre-Act discriminatory conduct is thusan integral com- need for a hack pay award will he obviated." ponent in the calculus of employment discrimination and remedial relief." Nondiscrimination in Compensation

"The necessity to serve in every job ina line of progres- Hodgson v. Behrens Drug Compo,::: sion, with a few exceptions, is still an announced policy of Excerpts from the decision of the U.S. Court o' Appeals. LP.... The cumulative effect of this policy is to severely Fifth Circuit (New Orleans). 475 F. 2d 1041t ,973 ). The restrict the possibility of job skipping or advanced level Supreme Court refused to review this decision, 414US entry transfer opportunities. These seemingly neutralre- 82.6 (19731.

58 THE CONFFRENCE BOARD (These excerpts deal with whether an employer's train- female workers and the economic and socialconsequences ing program constitutes a legitimate distinguishing"factor which flow from it.' other than sex" under the Equal Pay Act.) "In light of this enunciation of the clearpurpose of the "For many years Behrens has employed females in its Equal Pay Act, a training program coterminus witha Tyler division warehouse as 'order clerks.' The principal stereotyped province called 'man's work' cannot qualify responsibilities of an 'order clerk' include: arrangingmer- as a factor other than sex.... chandise on the warehouse shelves, fillingcustomer orders "In the instant case, Behrens' president, Clifton, testi- by gathering the requested stock and sending it alongto fied that women are not solicited as sales trainees because the 'checker,' and restocking the shelves.. . Behrens ad- 'females were never considered as suitable for traveling.' mitted and the district court found that certain maleem- This is a clear example of the attitude of malesuitability ployees, designated 'sales trainees,' performed work sub- designed to he nullified by the Equal Pay Act. stantially equal to that of the female 'order clerks' during "Behrens' sales training procedure is not illusory,nor the period in question.... doe, constitute a mere post-event justification for dis- "Behrens acknowledged thatthe male 'salestrainees' parate wage payments. Nevertheless, the program hasnever were paid a higher wage than 'order clerks' for doing the included a female, and its completionadvancementto a same work, but sought to justify this wage discrepancyas sales jobis entirely dependent on personnel needs.These based on a bona fide training program, purportedlycon- two program characteristics compel the conclusion that stituting a legitimate distinguishing factor other than sex." Behi'ens' training procedureisnot a factor other than sex which should excuse denial of equal pay to female workers and remove them from the aegis of the Equal Pay Act." "ITlhe SecretaryiofI aborrsInterpretativeBulletin, expressly designates bona fide training programs:Is one Hodgson v. Robert Hall Clothes, Inc. factor other than sex which may produce a male- Excerpts from the decision of the U.S. Court of Appeals, female wage gap." Third Circuit (Philadelphia),473 F.2d589 (1973).The Supreme Court refused to review this decision, 414 US 866 (1973). "The Behrens sales training program suffers fromtwo (These excerpts deal with whether, under the Equal principal weaknesses. First, the Behrens trainee's ultimate Pay Act, an employer can justify unequalpay for equal advancement to the position of salesman depends on, not work by claiming the differential is relatedto economic only satisfactory completion of the training program, but benefit (higher profit )as a factor falling within "any other also the fortuitous event of a sales opening. In other words, factor other than sex.") the termination point of the program...is subject to the vagaries of the business climate and the company's per- "The Robert Han store in question is located in Wilming- sonnel needs. ton, Delaware. It sells clothing, and containsa department "Second, the Behrens program is male dominated. No for men's and boys' clothing and another departmentfor woman has ever participated in the program. While it is women's and girls' clothing. The store isa one-floor build- true that the issue of whether trainee positions should ing, and the departments arc in separate portions of it. he open to women is a question to he ultimately resolved The merchandise in the men's departmentwas, on the only in action under Title VII of the Civil Rights Act of average, of higher price and better quality than themer- 1%4 . . itis also true that %raining programs which chandise in the women's department: and RobertHall's appear to he available only to employees of one sex will profit margin on the men's clothingwas higher than its ... he carefully examined to determine whether such pro- margin on the women's clothing. Consequently, themen's grams are, in fact, bona fide.' department atall times showed a larger dollar volume in gross sales, and a greatergross profit.Breaking this down, the salespeople inthe men's department, on the average, sold more merchandise in terms of dollars and "The spirit behind the Equal Pay Actwas eloquently produced more gross profit than did the peopleinthe depicted in Shultz v. Wheaton Glass Co.,.. . women's department per hour of work. The departments are staffed by full and part-timesales The Act was intended as a broad charter of women's personnel. At all times, only men were permittedto work rights in the economic field. It sought to overcome the in the men's department and onlywomen were permitted age-old belief in women's inferiority and to eliminate the to work in the women's department. The complaint isnot depressing effects on living standards of reduced wages for addressed to the propriety of such segregatedemployment.

FEDERAL COURT DECISIONS 59 The salespeople receive a base salary and can earn clear pattern of discrimination... that would he necessary additional incentive payments.. . At all times, the sales- for us to make it correlate more precisely the salary of men received higher salaries than the saleswomen. Both each of its employees to the economic benefit which it starting salaries and periodic increases were higher for the receives from them." males. The amount of incentive compensation was very slightly greater for the men." Nondiscrimination in Transfer Rodriguez v. Last Texas Motor freight "[The District Court held that) the sales personnel of Excerpt from the decision of the U.S. Court of Appeals, each department perforilied equal work within the meaning Fifth Circuit (New Orleans), 505 F. 2d 40 (1974). of § 206(d ) (1 ). (This excerpt deals with the qualifications an employer "The question then facing it was whether Robert Hall may require of individuals transferring to jobs they were could prove that the wage 'differential was based on any previously excluded from by unlawful discriminatory re- quirements.) other factor other than sex.' We have long subscribed in this circuit to the theory that thus:: who stiffer discrimination under Title VII must "-1 he initial question facing us is one raised by the Sec- be permitted to u!ke their 'rightful place' when job open- ings develop... retary. He contends that economic benefit to the employer , Tb!is, black and Mexican-American city cannot he used to justify a wage differential under § 206 'drivers, many o! whom would now he road drivers but (d)(I )(iv). for the discrimination of the defendants, must he given an opportunity to transfer to the road as road driving job "He argues thatany other factor' does not meanany openings develop. other factor. Instead he claims it means any other factor other than sex which 'is related to job performance or is "ETMF need not permit unqualified plaintiffs to trans- typically used in setting wage scales.' He contends that fer to the road, but in determining who is qualified ETMF must use criteria that either have no disparate impact economic benefits to an employer do not fall within this exception." along the lines of race or n;:tional origin, or that can be justified as a business. necessity. We have already stated that the requirement of three years prior road haul experi- "Robert Hall does not argue that any other' means 'tiny ence must give way. Because road driving experience has other' either.It claims that a wage differential is permis- been denied to blacks and Mexican-Americans as a class, sible if based on a legitimate business reason. As the dis- and because ETIV1F has not justified the experience re- quirement as essential trict court found, economic benefits could justify a wage it may not he confined to road differential. We need go no further than to say the district driving when to do so would discriminate against members court was correct...." of the plaintiff class. ETNIF having failed to prove that three years' line-haul experience is a business necessity for transfer, each city driver must be considered to meet the experience requirement by showing three years of city "[Sltatistics proved that Robert Hall's wage differentials driving on equipment similar to that used over the road. were not based on sex but instead fully supported the "The plaintiffs argue that, because not all trucking com- reasoned business judgment that the sellers of women's paniesrequirethreeyears experience, we should also clothing could not he paid as much as the sellers of men's reduce the number of years experience required.... Once clothing. Robert Hall's executives testified that it was their the requirement ofroadexperience is removed, however, practice to base their wage rates on these departmental the experience requirement is not onlyfacially neutral, itis figures. neutral in effect.Thus it need not he justified as a business "While no business reason could justify a practice clearly necessity. Congress did not intend that Title VII lead to prohibited by the act, the legislative history. ..indicates uniform hiring practices across an industry. So long as a Congressional intent to allow reasonable business judg- hiring policies do not discriminate. Title VII does not ments to stand.It would he too great an economic and require their modification. accounting hardship to impose upon Robert Hall the re- "We hold, not that all minority city drivers with three quirement thatitcorrelate the wages of each individual years' experienceatcity driving must he permitted to with his or her performance. This could forceittoward transfer but only that they may not he excluded unless a system based totally upon commissions, anditseems they fail to meet other qualifications that either have no unwise to read such a result into 206 (d ) (iv ). Robert disparate impact along racial or national-origin lines or Hall's method of determining salaries does not show the that can he justified as essential for safety or efficiency.

60 THE CONFERENCE BOARD On remand the district court should monitor caretully the ployees who have heen discriminatorily relegatedto in- criteria used hy ETMF to present minority city drivers ferior johs in the past are affordeda ready access to them." from transferring to line driving jobs:'''"

Franks v. Bowman Transportation Company "In analogous employment discrimination Excerpt from the decision of the U.S. Court of Appeals, cases, some courts have ordered the creation, at company expense, of Fifth Circuit (New Orleans), 495 F. 2d 398 (1974). The counselling and training programs to which discriminatees Supreme Court has agreed to review this decision. must he admitted in certain numhers each year or accord- (This excerpt deals with the need foran employer to ing to a fixed ratio until they holda certain percentage provide special remedial training opportunitiesto em- of the skilled positions. . . . ployees suhject to past discrimination.) If the district court should find ..that further remedial measures are necessary to afford adequate training opportunities, itmay fashion and "Appellants next ask that Bowman he ordered to estab- erant them." lish special training programs to upgrade the skills of dis- criminatees and to facilitate their movement out of inferior jobs. Warr/law v. .4 ustin School District "Bowman's record of denying training opportunitiesto Excerpts from the decisions of the U.S. District Court, hlacks i. had, From 1968 to 1971 Bowman hired 75to Western District of Texas, 10 FEP Cases 892 (1975). ISO white 01 R (over-the-roadl drivrtrs withno prior truck (These excerpts deal with whether the transfer ofan driving experience and trained them hy assigning themto unwed, pregnant teacher of the mentally retardedto a 'ride douhle' with experienced drivers. At thesame time, nonteaching position constituted sex discrimination.) assertedly hecause of the racial prejudice of allits white drivers, similar training opportunities were denied blacks. "Prior to her transfer Plaintiff was a high school teacher Prior to August of 1968 blacks were absolutely excluded of special education classes assigned to teachat 1.13.1 High from city driver johs, which may lead to qualification for School. These classes are composed ofsonic 8 or 10 men- OTR johs.In the Maintenance Department, hlack Tire tally retarded children. Plaintiff is in the thirdyear of her Shop employees have been denied access to jobs through prohationary status... and will he eligible for considera- which they might progress to mechanic position. tion for a 'permanent' three-year contract withthe AISD At a minimum, an effective remedy in thiscase must at the end of the current school year. Prior to the inci- allow hlack applicants and new employeesaccess to train- dents complained of hereinPlaintiff's competence as a ing opportunities on an equal hasis wit} whites in the teacher was unquestioned and her performanceatleast future. This requirement is implicit in the first paragraph satisfactory. of the district court's decree. It is littlemore than an echo "In the fall of 1974 Plaintiff, a single female, learned of Title VII's general prohibition against discrimination that she was pregnant. The partiesagree that Plaintiff in- in hiring and promoting. Further,if hlack Bowman em- tended to hecome pregnant and does not intendto marry. ployees who are presently locked into racialpatterns due On Novemher 15, 1974, Plaintiff notified theprincipal at to past discrimination are to have a meaningfuloppor- LBJ, Ron 13eauford, of her pregnancy. Mr. Beaufordthen tunity to advance, we think they must he afforded special unaware that Plaintiff was not married, advised Plaintiff temporary remedial training opportunities. A Tire Shop that she could continue teaching as longas her health employee's seniority will he of little use to him in hidding allowed. When...told that Plaintiff was not married he on a mechanic's slot as long as he lacks the necessary advised her that prohlems might arise, and suggestedshe skills. As the district court observed, 'asa practical matter, notify Superintendent Davidson.... nohody in the tire shop can hump a mechanic.' "Ms. Wardlaw then wrote a letter to Dr. Davidsonstat- "Heretofore Bowman has trained its employeeson the ing that.. .she wished to advise him of herpregnancy joh. On remand the district court should identify those hefore sharing the news with her students.... OnDecem- positions which are training grounds, and impose conditions her 16, 1974, Dr. Davidson informed Plaintiffthat he was to ensure thata suhstantial numher of Bowman's cm- transferring her, effective January 6,1975, to the non- teaching position of special education materialsand media assistant at the Keating facility. The transfer "2'4 While the in-cab road testis t,-doubtedly a legitimate was confirmed hy a letter on Decemhcr 18, 1974...." me. hod for determining the to:officio...1)s of a driver,it may he subject to abuse unless the chances ofa subjective judgment by the tester are minimized., . . Moreover, a potential trans- feree who performs inadequately on this test shouldnot he dis- qualified unless he cannot he expected to improvesufficiently "Plaintiff contends that her transferwas the result of given normal training." discrimination hecause of sex.Plaintiff presented, how-

FEDERAL COURT DECISIONS 61 ever, ahsolutely no evidence that she was treated any dif- her livelihood, has not been perrlf,,:ntly barred from ferently than would have heen a single male teacher whose teaching in the AISD, and has not bet.ii denied considera- status as an expectant parent hecame known to school tion for a permanent contract witii the AISD based upon officials. Obviously, the physical fact that Plaintiffis a her joh performance. Her pay and a'l emoluments and female assures that her pregnancy will become ohservable, benefit!: of her contract derived from fh,. same are in no while an unwed father has no such physical manifestation wise impaired or diminished." of his status.. . We find no proscribed discrimination against Plaintiff because of her sex." Patterson v. Newspaper Mail Del. U. of N.Y. & Vic. Excerpt from the decision of the U.S. Court of Appeals, "Plaintiff contends that her fundamental rights to pri- Second Circuit (New York),514F. 2d767 (1975) vacy. to procreate and to decide whether to marry or not (This excerpt deals with the objection of a white male to marry, as protected by the First, Ninth and Fourteenth to the terms of an agreement ahout transfers remedying Amendments, have heen infringed hy her transfer. These past racial discrimination on the grounds that he per- rights are, indeed, among those liberties protected hy the sonally has heen just as disadvantaged as the minorities, Due Process Clause, and Defendants have never ques- so he should get the same benefits under the agreement.) tionedMs.Wardlaw's right to hecame pregnant, to have her child, or to decline to marry. What Defendants have "Larkin's argument that he is entitled to the same bene- done is to reach an administrative decision regarding Plain- fits as the minority workers must also be rejected. This tiff's status as a high school special education teacher. The case arises under a statute which hy its terms is limited right Plaintiff claims is.in reality, the right to teach the to protection against employment discrimination based on class of her choosing. Such a right is secured to Plaintiff an individual's 'race, color, religion, sex, or national origin.' neither hy the Constitution nor hy her teaching contract. ... Larkin does not allege discrimination against him based "Evidence presented to the Court showed that Plaintiff's on any of these fact...irs. He argues only that the industry's condition raised legitimate concern on the part of school past practices discriminated against all Group III mem- officials regarding the impact of her presence on the edu- hers, minority and non-minority, and that while the settle- cational process at LBJ High School generally, and particu- ment agreement remedies the discrimination against mi- larly in her classroom. School officials feared that adverse nority persons itfails to afford any relief for the harm puhlic reaction to what might he considered, at least hy caused to non-minority persons. Worse still, he asserts, the large segments of society, to he Plaintiff's unconventional relief to minority misons isat the expense of the white lifestyle was likely io cause disruption of the educational Group III workers. process at LBJ when and ifPlaintiff's condition hecame "At first glance this argument has much appeal As the public knowledge. Moreover, Plaintiff's position as a high district court recognized, Group III workers were the vic- tims of some practices that were harmful to all Group III schoolspecialeducationteacher hringsintothiscase weathers, regardless of race. Minority members, on the unique factorsrequiring careful consideration. Attrial other hand, were the targets of racial discrimination on Defendants presented strong evidence that the special edu- the part of the virtually all-white Union. In this Title VII cation students iTi Plaintiff'sclass possess characteristics which render them particularly needful of a learning en- action we are limited to consideration of the fairness of relief directed only to the latter.. vironment free of the disruption. disturhance and tension [Title VII] creates no likely to he engendered hy any puhlic controversy that rights or henefits in favor of non-minority persons or might arise and has arisen concerning Plaintiff's status. groups. Any past denial of promotion rights to Larkin is Evidence further indicated that those students are men- clearly not remediahle under Title VII. Indeed, Group III tally retarded children and might he particularly vulnerahle white workers have unsuccessfully sought relief for them- to harm arising from any tension resulting from differences selves under other statutes. Itis thus apparent that Larkin hetween their parents and their teacher regarding sexual has no right to any of the affirmative relief afforded to attitudes and lifestyles. the minority groups. including the hack pay provisions." "Thus, we conclude that the decision of school officials was justified hy legitimate educational concerns. Their decision in no way reflected upon the morality or propriety Nondiscrimination in Discharge of Plaintiff's lifestyle. only upon the impact of her pres- ence in the classroom on the educational system...." Brown v. D. C. Transit System, Inc. Excerpts from the decision of the U.S. Court of Appeals, District of Columbia Circuit, 10 FEP Cases MI(1975). . . . ITIhe action taken hy school officials reflects no (These excerpts deal with whether an employer's dis- punitive motivation.Plaintiff has not heen deprived of charge of some hlack males for failure to conform to the

62 THE CONFERENCE BOARD 6e company's grooming standards constitutes race and sex application to the agency to determine whether it could discrimination.) or should consider the possibility that some element of the puhlic interest was adversely affected by the company's "Plaintiffs had claimed that Regulation No. 70-67 would regulation. have forced them to modify their facial hair style ['mutton- "We are satisfied that the district judge correctly con- chop' sidehurnsf, and so was an 'extreme and gross sup- cluded that Plaintiffs were entitled to no relief under.. . pression of them as hlack men and [wasj a badge of slavery' !The Civil Rights Acts of 1866, 1871, and 1964], We are depriving themof their racial identity and virility.' Bu: equally confident that there has been no 'state action,' such there were 1800 employees, 1100 of whom were black, all as is essential to establish a claim of denial of due process others were white, indeed there were three women hus under the Fifth Amendment. Accordingly, on this aspect drivers. At the time the Plaintiffs were terminated, the of the case, we will reverse and remand with directions regulation had heen invoked against certain white drivers that judgment he entered in favor of the appellants and as well, at least one of whom had thereupon brought his that Plaintiffs' complaint be dismissed." facial hair style into conformity. The district judge spe- cifically had found that there was no diskTimination 'against Emporium Capwell Co. v. Western Addition persons because of their race or sex...." Community Organization Excerpts from the decision of the Supreme Court of the United States, 95 U.S. 977 (1975). (These excerpts deal with an employer's right, under Of course individual citizens have a constitutional right the Lahor Management Relations Act, to discharge em- to wear heards, sidehurns and mustaches in any form and ployees for picketing and urging a consumer boycott to to any length they may choose. But thatis not a right force employer to hargain with them over issues of em- protected by the Federal Government, hy statute or other- ployment discrimination. The employees' union, which wise,ina situation where a private employer has pre- had exclusivecollectivebargaining rights,had already scrihcdregulations governing the grooming of its em- taken their claims to arhitfation.) ployees while in that employer's service. The wearing of a uniform, the type of uniform, the requirement of hirsute "Before turning to the central questions of labor policy conformity applicahletowhites andblacksalike,arc raised hy this case, itis important to have firmly in mind simply non-discriminatory conditions of employment fall- the character of the underlying conduct to which we apply ing within the amhit of managerial decision to promote them.... ITIhe Trial Examiner and the Board found that the the hest interests of its husiness. employees were discharged for attempting to bargain with "Heretofore we have summed up the prohlcm in terms the Company over the terms and conditions of employ- of private employment thus: ment as they affected racial minorities. . . . We see no occasion to disturb the finding of the Board.. . . The is- 'But equally it seems ohvious to us, that one seeking sue, then, is whether such attempts to engage in separate an eno %mem opportunity as in our situation where hair hargaining are protected hy § 7 of the Act or proscribed length !cadlly can he changed, may be required to con- hy9(a). form to seasonable grooming standards designed to further A the employing company's interest hy which that very op- "Section 7 affirmatively guarantees employees the most portunityisprosided. Thereisno suggestionthatthe hasic rights of industrial self-determination, 'the right to company regulationispretextualorthatithas heen self-organization, to form, join, or assist labor organiza- derived otherwise than in complete good faith.' tions,to hargain collectively through representatives of their own choosing, and to engage in other concertedac- "We are aware that Transit may he distinguishable from tivities for the purpose of collective bargaining or other a private employer who has extensive private competition mutual aid or protection,' as well as the right to refrain and adopts grooming standards in the interest of keeping from these activities. These are, for the most part, collec- tip with or gaining ground on that competition. But even tive rights, rights to act in concert with one's fellowem- a puhlic utility with monopoly or quasi-monopoly status ployees: they are protected not for their own sake but has an interest in consumer acceptance of its services. A as an instrument of the national labor policy of minimiz- utility's grooming regulation governing its employees does ing industrial strife 'hy encouraging the practice andpro- not have the nexus with the state necessary for its classi- cedure of collective hargaining'.... fication as 'state action' suhject to due process restraints "Central to the policy of fostering collective hargaining, where, as here, there has been no involvement whatever where the employees elect that course, is the principle of of an agency of government, federal or 'state.' We find majority rule. . . In estahlishing a regime of majority here no order. no investigation and hearing, not even an rule. Congress sought to secure to all metnhers of the unit

FEDERAL COURT DECiSIONS 63

ri the benefits of their collective strength and bargaining "...MI.: think neither aspect of respondent's contention power, in full awareness that the superior strength of some in support of a right to short-circuit orderly. established individuals or groups might be subordinated to the interest processesfor eliminating discriminationin employment of the majority As a result, It Ole complete satisfac- is well-founded. The policy of industrial self-determination tion of all who are represented is hardly to he expected.' as expressed in 7 does not require fragmentation of the In vesting the representatives of the majority with this bargaining unit along racial or other lines in order tocon- broad power Congress didnot. of course, authorize a sist with the national labor policy against discrimination. tyranny of the majority over minority interests.First,it 4.nd in the face of such fragmentation, whatever its effect confined the exercise of these powers to the context ofa on discriminatory practices, the bargaining process that 'unit appropriate for the purpose., of collective bargain- the principle of exclusive representation is meant to lubri- ing.'i.e..a group of employees with a sufficient com- cate could not endure unhampered. monalityof circumstancestoensureagainstthesub- "Even if the NLRA, when read in the context of the mergence of a minority with distinctively different interests general policy against discrimination, does not sanction in the terms and conditions of their employment.... Sec- these employees' attempt to bargain with the Company, it ond.itundertookin he1959 I.:inc-int-Griffin amend- is contended thatit must do so if a specific element of ments ... to assure that minority voices are heard as they that policy is to he preserved. The element in question is are in the functioning of a democratic institution. Third. the congressional policy of protecting from employerre- we have held. by the very nature of the exclusive bar- prisal employee efforts to oppose unlawful discrimination, gaiuing representative's status as representative of all unit as expressed in § 704(a) of Title V Ii.... Since the dis- employees, Congress implicitly imposed uponita duty chargeldj employees here had, by their own lights, 'op- fairly and in good faith to represent the interests of mi- posed' discrimination, itis argued that their activities 'fell norities within the unit. . . And the Board has taken the plainly within the scope of,' and their discharges therefore position that a union's refusal to process grievances against violated, 704(a). The notion here isthatifthe dis- racial discrimination, in violation of that duty, isan unfair charges did not also violate 8(a) ( I) of NLRA, then the labor practice. . .Indeed, the Board has ordered a union integrity of§ 704(a) will he seriously undermined. We implicated 1.)) a collective bargaining agreement indis- cannot agree. crimination with an employer to propose specificcon- "Even assuming that 704(a)protectsemployees' tractual provisions to prohibit racial discrimination. . . . picketing and instituting a consumer boycott of theirem- ployer Iln a footnote the Court notes that the validity of such an assumption is by no means clear- cut.], thesame "Against this background of long and consistent adher- conduct is not necessarily entitled to affirmative protection ence to the principle of exclusive representation tempered from the NI.RA. Under the scheme of that Act, conduct by safeguardsforthe protection of minorityinterests. whichisnot protected c:ncerted activity may lawfully respondent urges this Court to fashion a limited exception form the basis for the participants' dischuge. Thatdoes to that principle: employees who seekto bargain sepa- not mean that the discharge is immune from attackon rately with their employer as to the elimination of racially other statutory grounds in an appropriatecase.Ifthe discriminatory employment practices peculiarly affecting discharges. in this case are violative of § 704(a) of Title them, should he free from the constraints of the exclu- VII. the reiredial provisions of that tit:provide the means sivity principle of 9(a ).Essentially because established by which Hollins and Hawkinsmay recover their jobs procedures under Title VII or, as in this case,a grievance with hack pa," machinery. aretoo time-consuming. the national labor policy against discrimination requires this exception.re- l.Parker Seal Company spondent argues. and its adoption would not undulycom- Excerpts from the decisiot: of the U.S. Court of Appeals, promise the legitimate interests of either unionsor em- Sixth Circoi, (Cincinnati) ), 516 F. 2d 544 (1975). ployers.- (These excerpts deal with a company's discharge ofa supervisor who, in observance of his Sabbath, refusedto work on Saturday.) This argument confusesthe employees'substantive right to he free of racial discrimination with thepro- On this record, we see no substantial evidence tosup- cedures available under the NLRA for securing these port the District Court's conclusion that accommodation rights. Whether they are thought to depend upon Title VII of Appellant's religious practices would have imposedan or have an independent source in the NI.RA. they cannot undue hardship on the conduct of Appellee's business, The he pursuedatthe expense ofthe orderlycollective- objections and complaints of fellow employees, in and of bargaining process contemplated by the NI.R A. . . themselves, do not constitute undue hardship in thecon- duct of an employer's business. If employeesare disgruntled

64 THE CONFERENCE BOARD 6'6 because an employer accommodates its work rules to the "The Supreme Court has made it clear that a law is not religious needs of one employee, under EEOC Regulation necessarily unconstitutional merely because it confers inci-

1605 and . .[Title VII, as amended] such grumbling must dental or indirect benefits upon religious institutions.. .. yield to the single employee's right to practice his religion. In our view, the primary effect of Regulation 1605 and Moreover, the fact that Saturday Sabbath observance by § 2000e(j)is to inhibit discrimination, not to advance one employee forces other employees to substitute during religion." weekend hours does not demonstrate an undue hardship on the employer's business. It is conceivable that employee morale problems could become so acute that they would "In summary, we hold that the reasonable accommoda- constitute an undue hardship. The EEOC, in interpreting tion rule is not inconsistent with the establishment clause Regulation 1605, has noted the possibility of undue hard- of the first amendment. Accordingly, we find no constitu- ship when the employer can make a persuasive showing tional basis for sustaining the District Court's decision. that employee discontent will produce 'chaotic personnel Since we have concluded that Appellant was the victim problems.' ... of religious discrimination within the meaning of Title VII, "In the case at bar, however, Appellee has shownno we must remand the case for a determination of the ap- such dire effect upon the operation of its business. To the propriate relief. At this point we simply note that the Dis- contrary, the complaints of Appellant's fellow supervisors trict Court should consider reinstatement, hack pay, and seem both mild and infrequent. In addition, it appears that attorney's fees." Appellee might have alleviated at least some of the dis- sension if it had pursued a more active course of accom- McDonald v. Santa Fe Trail Trans p. Co. metiation. For example, Appellee's officials could have Excerpt from the decision of the U.S. Court of Appeals, required Appellant to work longer hours on week days Fifth Circuit (New Orleans), 513 F.2d 90 (1975). The or on Sundays. They could have reduced Appellant's Supreme Court has been asked to review this decision. salary commensurately with his shorter work week. They (This excerpt deals with whether white employees, dis- could have taken pains to ensure that Appellant substi- missed for misappropriating company property when a tuted for his colleagues on an equitable basis rather than similarly charged black employee was not dismissed, can assuming that the co-workers would make appropriate de- bring suit charging racial discrimination.) mands upon Appellant. "Appellee was inconvenienced by Appellant's no-Satur- . . [The Civil Rights Act of 1866] gives all persons days rule, but to call the inconvenience shown on this within the jurisdiction of the United States the same right record 'undue hardship' would be to venture into 'an Alice- to equal benefit of the laws 'asis enjoyed by white citi- in-Wonderland world where words have no meaning.' .. . zens.' The district court held that this section confers no Undue hardship is something greater than hardship. and actionable rights upon white persons, and dismissed for Appellee did not demonstrate. .. how accommodation to lack of jurisdiction the § 1981 claim brought by the two Appellant's religious practices would have imposed an un- white plaintiffs. We affirm.... reasonable strain onitsbusiness, having lived with the "We likewise agree with the district court's conclusion situation for over one year before Appellant's discharge." that an employer's dismissal of white employees charged with misappropriating company property while not dis- missing a similarly charged black employee does not raise a claim upon which relief may be granted under Title VII. "Appellee seeks to sustain the District Court's decision .. . There is no allegation that the plaintiffs were falsely upon the ground that... the EEOC regulation arid Title charged. Disciplinary action for offenses not constituting VIII are laws 'respecting an establishment of religion' and crimes is not involved in this case." therefore invalid under the first amendment. Appelleear- gues that the reasonable accommodation rule fosters religion Nondiscrimination in Reemployment by requiring private employers to defer to their employees' religious idiosyncrasies. Appellee points out that under the Newmon v. Delta Air Lincs. Inc. rule an employer may he required to excuse an employee Excerpts from the decision of the U.S. District Court, from Saturday work to attend church, but an atheistic em- Northern District of Georgia, 374 F. Stipp. 238 (1973). ployee who wishes to go fishing on Saturdays enjoysno (These excerpts deal with whether a company's failure similar right under the Civil Rights Act. Thus Appellee to reemploy a woman after her maternity leave consti- believes the rule constitutes a governmentally mandated tuted sex discrimination.) preference for religionthatisimpermissible under the first amendment." ". . . 1T1he defendant's maternity policy is attacked as discriminatory because itpermits those on such leave to

FEDERAL COURT DECISIONS 65 6 he permanently replaced although they are granted priority ernment contractor, has been required to submit to the for future employment and retain their benefits basedon General Services Administration (GSA) all to the Of1i'e length of service. Other cases dealing with Title VIIsex of Federal Contract Compliance, Department of Lain,. discrimination have declared as illegal the refusal to hire (OFCC) by Executive Order No. 11246.. . as amended mothers. . .. It arguably appears then that a ,efusal rehire . . . and regulations promulgated thereunder. Disclosure in an availadle similar job also would he violative of the is sought by Intervenor Council on Economic Priorities,a Act, tin,ess it can be shown that such refusal was dictated non-profit corporation which ,s currently preparinga stud:, by business necessity, a limited exception to the Act's com- ot. the comparative social performance of five majorna- mand against discrimination.... tional retailers, inckuing Sears. GSA and the OFCC, hav- "The applicability of the 'business necessity' doctrine ing first consulted the FOIA Committee of the Department depends upon much more than .st convenience. ... For of Justice, were willing to release the documents. These such a policy as Delta's to be maintainable, itmust pro- agencies offered Sears an opportunity to review the docu- mote efficiency of operation and he indispensible toward ments and point out any portions which were exempt from that end....In an earlier case ceistruing the 'business disclosure under either the FOIA or the OFCC disclosure necessity' rule, the Fifth Circuit Court of Appeals specifi- regulations . . . Sears declined to follow this procedure cally noted that '1w1hen the defendant's conduct evidences becauseitmaintained that the documents were wholly an economic purpose there is no discrimination under Title exempt under FOIA exemptions ;.; 552(h)(3) (specifically VII....' exe ipted by statute) and a 552(h)(7) (investigatory files compiled for law enforcement purposes). Thereforeit "Delta justifies its failure to rehire the plaintiffon the sought in District Court an injunction restraining thegov- ground. among others, thatitcannot obtain temporary ernment from disclosing any of the information. ... replacements for pregnant employees and that holding "In an extremely cireful and thorough opinion . Judge such alarge number of positions open forwomen on Bryant held that the documents %%etc not exempt either maternity leave would he demoralizing to the remainder of under (1)1(3) or (b)(7 )and, as to those claims, granted its work force...." summary judgmetit for the government and the intervenor. However, because Sears argued in the alternntive that large portions of the documents were exempt under (b)(4) and Of greater importance, however, is the evidencethat (h' (6), but had never specified for thegovernment which the plaintiff was not rehired because ofa business 'slump' portions it believed thost. sections protected, Judge Bryant at the time which affected Delta and others in the air travel stayed disposition of those claims pending agency review. industry. In fact, the plaintiff's old job was later abolished Scars was directed to .dibmit its (h) (4) and (b) (6) claims as a result of this adverse economic impact. This reality to GSA within 30 days: GSA, in turn, was orderedto re- is substantiated by the failure of the plaintiffto obtain lease all portions of the information not broughtto its employment with any other Atlanta-based airlines,even attention by Sears in thos.: claims. though she was experienced in a phase of that business. ".. Pine who seeks a stay lof a lower court's order Therefore, the evidence is uncontradicted that Delta's fail-. must' demonstrate a strong likelihood ofsuccess on the ure to reemploy the plaintiff was dictated by business merits. This Scars has failed to do...." prudence rather than sex discrimination...

Government Release of Affirmative The EEO-Fs herein were collected by the JointRe- porting Committee (JRC), which collects documentsfor Action Plan Information and distributes them to both the EEOC and the OFCC. Sears. Roebuck & Co. v. GSA Although under some circumstances the EEOC doesre- quire the submission of EEO -1's, which the JRC collects Excerpt from the decision of the U.S. Court of Appeals, or it, Judge Bryart correctly held that all of the docu- District of Columbia Circuit. 509 F. 2d 527 (1974). ments herein were obtained by the JRC pursuant to Ex- (This excerpt deals with a government contractor's at- ecutive Orders 11246 and 11375 and not pursuantto the tempt to prevent the Federal Governm-nt from releasing, Commission's authority under Title VII. Further, members under the Freedom of Information Act,alof the affirma- of the JRC are not officers or employees of the Commis- tive action plan information it had filed.) sion. While the JRC may he an agent of the Commission when it acts for the Commission, itis an agent of the "Sears. Roebuck & Company brought this action in the OFCC whenitcollectsinformationforthatagency District Court. seeking to prevent disclosure under the pursuant to Executive Order 11246. Thus, the data inques- Freedom of Information Act . . . of EEO -1forms and tion here was not collected by the EEOC,nor was it ob- Affirmative Action Plans( AArs ) which Sears, as a gov- tained pursuant to EEOC authority....

66 1HF CONFERENCE BOARD "The EEO -l's and AAP's which Sears, as a go%.2. tment & Johnston's 1972 Affirmative Action Program,except contractor, was requital to itipply in order that its com- such portions which Plaintiffs have heretofore specifically pliance with exectrive orders prohiniting employmfmt dis- permitted Defendants to release, to any party other than crimination could he monitored not 'investigatory files' Plaintiffs and authorized agencies of the federalgovern- and are not exempt from disclosure.... ment." 'The disclosable information was listedby the "Therefore, . . . GSA is directed to 4;:lease forthwith all Court.1 of the information ought herein which Sears 'sas not speci- fied as exempt under FOIA exemptions (b)(,, and (h)(6)." Hughes Aircraft Compa.ty v. Schlesinger Westinghouse Electric Corporation v. Schlesinger Excerpts from the decision of the U.S. District Court, Excerpt from the decree issued by the U.S.District Central District of California, 384 F. Stop, 292 (197,4). Court, Eastern District of Virginia, 392 F. Stipp. 1246 (These excerpts deal with a government contractor's (1974). attempt to prevent the Federal Government, tinder the (Thisis an excerpt from a court order permanentl} Freedom of Information Act, from relcasing its Affirma- restraining the Federal Government, tinder the Freedom tive Action Plan on the grounds it contains "confidential" of Information Act, from releasing "o civil rights groups trade secrets and commercial and financial information.) certain information two government contractors had filed in their Affirmative Action Plans. ) "As a government defense contractor, Hughes Aircraft is under an obligation to he an equal opportunityem- "'Title Court having heard oral evidence in open court ployer. To demonstrate good faith in its empioymentprac- concludes that Defendants are about to release copies of tices, Hughes, like other defense contractors, must submit Plaintiff Fraser & Johnston's 1972 Affirmative Action Pro- an Affirmative Action Plan (AAP) to the Labor Depart- gram and copies of Plaintiff Westinghouse's 1972 EEO-1 ment's Office of Federal Contract Compliance.. . . The report for its Ear,' Pittsburgh Divisions 'tnwill do so AAP must discuss in dtpth and ina candid fashion the unless restrained by order of this Cow, and from infor- minority hiring, firing and promotior policies of the Com- mation contained therein the Plaintiffs' profit margi,. and pany.itmust also provide statistical data on previous resulting vulnerability to price change can he extrapo:ated, practiLes as well as future projections and goals for mi- and that viewing the same documents over period of norit} employment policies, and must he openly self criti- time would enable a competitor to oh:,,ina forewarniry cal and fully discuss problem areas. on new products and pr cess changes being undertaken by Hughes submitted its1974 Culver City plant AAP to the1' intiffs,all to Plaintiffs' imalediate anu irreparable the office of the office of Federal Contract Compliance. injury, loss or damage, and f"e disclosure of certain infor- Invoking the Freedom of Information Act,.. . the Los mation contained in said documents would be unauthori7, Angeles Chapter of the National Organization for Women under 18 U.S C. § 1905, and that tidocuments in ques- requested a copy of that document from one of the de- tion contain commercial or financial informafon which fendants and Hughes brought this action to prevent dis- is confidential within the meaning of 5 U.S,C. § 552(h) (4). closure.' therefore "IT IS ORDF.RL",, AWUDGED AND DECREED that the Defendants, and each of them, and thcirsucces- -IThe Freedom ofInformationActl exempts 'trade sors in office, their agents, confederates, servants, and all secrets and commercir 'or financial information obtained employees and others acting in concert with or fcthem from a person and privileged or confidential.' . . [The are permanently enjoined and restrained from releasing OFCC Regulation implementsthislw andlregulates or disclosing any information contained in that part of the access to records, including\ AP's filed with the Of ,:e 1972 EEO-1 report filed by Westinghouse for itsEast of FederAContract Compliance.

.. . Pittsburgh Divisions.. which is tinier the heading "Sec- "The key factor in both is an understanding oc what tion DEMPLOYMENT DATA- to any party other than information inil.e AAP is protected because it 'con- Plaintiffs and authorized agencies of the federalgovern- fidential.' ment." 'The disclosahle information was listedby the "'Another court hasl formulated the following test: Court.1 "IT IS FURTHER ORDERED, ADJUDGED AND .. commercial or financial matter is 'confiden :.11'for pur- poses of the exemption DECREED that the Defendants, and each of them, and ifdisclosure of the informati .1 is

likely to have either of the following effects: 1 their successors in office, their agents, confederates,serv- (I to impair the government's ability ants, and all employees and others acting in concert with to obtain necessary inform,,,ionin the future: or (2) to cause substantial harm tc, the competitive or for them are permanently enjoined and restrained from position of the person from who'. thei. formation was ob- releasing or disclosing any information contained in Fraser tained....'

FEDERAL CC'JRT DECISIONS 67 "This test is appropriately applied here. to the release and its alleged competitors. Hughes' involvement inthis of Hughes' AAP. cooperative salary survey challenges the claim that Hughes "The issue is whether disclosure of the Hughes AAP is is really worried about its competitive position, should its likely to cause substantial harm to Hughes' competitive AAP he disclosed. After studying the AAP, I tend to be- position. To helpresolvethisquestions,the courthas lieve that Hughes is more concerned about embarrassment, studied the Hughes AAP in camera and has requested that should the AAP he made puhlic. the parties submit affidavits of experts." "[The OFCC regulation] notes that only 'those portions of the AAP which constitute information on staffing pat- terns and pay scales' should be exempt from disclosure, "The debate concentrates on the question of whether but only to the extent that their release would injure the Hughes' labor costs can he uncovered by a competitor, business or financial position of the contractor ...' Hughes since the AAP reveals the nurnher of employees at the has voluntarily released a significant piece of its total labor Hughes Culver City facility. The argument is thatone a costs picture ... Hughes' behavior with its competitors is competitor knows Hughes' labor costs,the competitor, a strange way of preserving a financial confidentiality it having also found Hughes' costs for plant, equipment, and now so strongly seeks to assert." materials, and its profit margin, will be able to underbid Hughes on government contracts. Hughes' expert, Ruten- herg, argues that the listing of employees by job categories helps rivals estimate labor costs, since competitive rates The Hughes Experts also consider other questions he- in a locality for wage. salary and fringe benefitscan he sides lahor costs, although with less emphasis. known. "Rutenherg believes that disclosure of data which indi- "Government's expert, Welch, on the other hand. be- cates a turnover of employees might show dissatisfaction lieves that labor costs can only he imperfectly estimated, with the company, and thus encourage raiding hy com- since wage information is omitted from the AAP. He also petitors. However, many inferences can be drawn from points out that wage information within a job classifica- such disclosure.It might he an indication of the avail- tion will vary and thus any estimation will he subject to ahitity of employment with Hughes. Also, do competitors 'considerable error.' Welch also points out that the bids of only raid during signs of diiisfaction, or isit an on- a successful government contractor are open for inspec- going practice? Lastly, the report doesn't indicate which tion to the losers, and he believes that competitors can get employees are dissatisfied and amenable to raiding. a far more accurate assessment of costs this way. than can -Rutenberg also believes that disclosure of a low turn- he ohtoined by analyzing the employment patterns ofa over rate might indicate that the facility is preparing for firm as a vt'nole. . . . He ohserves that 'both wages and a major hidding activity. Low turnover, however, might manpower requirements are necessar:., and neither is con- indicate a tight joh market with employees beingespe- tained in AAP.' cially conscious of joh security, and thus being unwilling rhe government's other expert, Flanagan, adds that to move OIL wages within a joh classification vary, and It is not pos- "Hughes' expert. Kamien, helieves that minorities might sible for a competitor with access to the AAP toguess he discouraged hy the Hughes' minority and womenem- whether wages pair, hy Hughes are in the upper or lower ployment picture. However as government's expert, Vick- part of the diversion.' ery,points out, disclosure of Affirmative Action Plans "Surprisingly. Hughes reveals through its witness. Wajda, can serve a search and recruitment purpose, and help thatitparticipates inprivate. industry wide range and companies such a-. Hughes, comply with the wishes of the salary surves which involve 'an exchange of information government. She believes that informational harriers to xith a select sample of cempanies in the industry . . joh possibilities will he lowered and that the fear of rejec- Waldo notes '`tatthe data includes actual salary ranges. tion, often iteld hy potential applicants, will be greatly and averages by job classification.' redt.ced. Women and minority perceptions of the types of The question remains whether salary ranges andaver- jobs open to them will he changed hy public release of ages are helpful for competitors estimating labor costs. the AAP and disclosure will also direct thesegroups to job since only certain persons within a joh classificationmay he opportunities." w irking on a project. As Welch and Flanagan point out. different divisions of Hughes might participate ina project. subcontractors may he involved, and manpower needsare still undisclosed. The government's showing has convinced me of the "However, this revelation hy the pla,ntiff raisesnew con- marginal utility of the Hughes' AAP to a competitor. siderations for this equity court. Weighing heavily in the Additionally. the revelation of the private, industry wide equitable balance is this apparent collusion hetween Hughes surveys discredits much of the basis for finding any coin-

68 THE CONFERENCE BOARD ri petitive harm to Hughes, and the apparent collusionis of the privacy of an employee.' Thus, the following portions most persuasive for the equitable balancing that must be of the Hughes Culver City AAP are exempt from dis- done in these circumstances." closure: (1) The entire section designated 'Minorities and .. [The OFCC regulation] exempts from disclosure Females Eligible for Upgrade and Promotion' and (2) those portions of Affirmative Action Plans which 'would 'Minorities and Females Possessing College Degrees,' etc. constitute a release of confidential financial information of ... The remainder of the Plan is subject to disclosure. an employee or would constitute an unwarranted invasion "Judgment is ordered accordingly."

FEDERAL COURT DECISIONS 69

7,3 Appendix B* Texts of Regulations,as Amended

Provisions from The Constitution preme Court in Johnson v. Railway Express Agency, Inc., of the United States 10 FE!' cases 8/7 [May /9, /9751. ) The following Constitutional Amendments have been 1981. Equal rights under the law. regarded as relevant to employment discrimination. "All persons within the jurisdiction of the United States shall have the same :fight in every State and Territory to Amendment 5 make and enforce contracts, to sue, he parties, give evi- dence, and to the full and equal benefit of all laws and "No person shall be held to answer for a capital. or proceedings for the security of persons and property as is otherwise infamous crime, unless on a presentment or in- enjoyed by white citizens, and shall be subject to like pun- dictment of a Grand Jury, except in cases arising in the ishment, pains, penalties, taxes, licenses, and exactions of land or naval forces, or in the Militia, when in actual serv- every kind, and to no other." ice in time of War or public danger; nor shallany person he subject for the same offense to be twice put in jeopardy § 1982. Property rights of citizens. of life or limb; nor shall be compelled in any criminal "All citizens of the United States shall have the same case to be a witness against himself, nor be deprived of life, right, in every State and Territory, as is enjoyed by white liberty, or property, without due process of law;nor shall private property be taken for public citizens thereof to inherit, purchase, lease, sell, hold, and use, without just convey real and personal property." compensation." 1983. Civil action for deprivation of rights. Amendment 14 "Every person who, under color of any statute, ordi- "SectionI. MI persons born or naturalizedinthe nance, regulation, custom, or usage, of any State or Terri- United States, and subject to the jurisdiction thereof,are tory,subjects,or causestobe subjected, any citizen citizens of the United States and of the State wherein they of the United States or other person within the jurisdiction reside. No State shall make or enforce any law which shall thereof to the deprivation of any rights, privileges, or im- abridge the privileges or immunities of citizens of the munities secured by the Constitution and laws, shall be United States: nor shall any State deprive anyperson of Hanle to the party injured in an action at law, suit in life, liberty, or property. without due process of law;nor eyaity, or other proper proceeding for redress." deny to any person within its jurisdiction the equal protec- tion of the laws.... "Section 5. The Congress shall have power to enforce, Civil Rights Act of 1964, as Amended by appropriate legislation, the provisions of this article." AN ACT "i o enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United Civil Rights Acts of 1866, 18 '0, States to provide injunctive relief against discrimination inpublic accommodations,toauthorizetheAttorney and 1871 Gene: al to institute suits to protect constitutional rights inpublic facilities and public education, to extend the (These acts have been codified as Title 42. Chapter 21. Commission on CivilRights, to prevent discrimination Sections 1981-1983 in the U S. Code. For a brief com- in federally assisted programs, to establish a Commission parison of the enforcemen, proceedings under these ,!cts on Equal Employment Opportunity, and for other pur- and under Title VII of the Civil Rights Ac' of /964.sec poses. the excerpts on pages 33-34 from the decision of the Su- Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assem- bled, That this Act may he cited as the "Civil Rights Act 'See also Appendix B in Report No. 589. of 1964."

70 THE CONFERENCE BOARD view of such action in accordance with section 10 of the TITLE VI-NONDISCRIMINATION Administrative Procedure Act, and such action shall not IN FEDERALLY ASSISTED PROGRAMS be deemed committed to unreviewable agency discretion within the meaning of that section. SEC. 601. No person in the United States shall, on the SEC. 604. Nothing contained in this title shall be con- ground of race, color, or national origin, he excluded from strued to authorize action under this title ny any depart- participation in, be denied the benefits of, or he suhjected ment or agency with respect to any employment practice to discrimination unuer any program or activity receiving of any employer, employment agency, or lahor organiza- Federal financial assistance. tion except where a primary ohjective of the Federal finan- SEC. 602. Each Federal department and agency which is cial assistance is to provide einployr.ent. empowered to extend Federal financial assistance to any SEC. 605. Nothing in this title shall add to or &true/ program or activity, by way of grant, loan, or contract from any existing authority with respect to any program other than a contract of insurance or guaranty, is authorized or activity under which Fedetal financial assistance is ex- and directed to effectuate the provisions of section 601 tended by way of a contract of insurance or guaranty. with respect to such program or activity hy issuing rules, regulations, or orders of general applicability which shall TITLE VII-EQUAL EMPLOYMENT be consistent with achievement of the ohjectives of the OPPORTUNITY' statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or DEFINITIONS order shall become effective unless and until approved hy the President. Compliance with any requirement adopted SEC.701. For the purposes of this title pursuant to this section may be effected (1) by the termi- (a) The term "person" includes one or more individuals, nation of or refusal to grant or to continue assistance under governments. governmental agencies, political subdivisions, such program or activity to any recipient as to whom there labor unions, partnerships, associations. eerporations, legal has been an express finding on the record, after opportun- representatives, mutual companies, r 'r.rripanies, ity for hearing, of a failure to comply with such require- trusts, unincorporated organizations eesin ment, but such termination or refusal shall he limited to bankruptcy, or receivers. the particular political entity, or part thereof, or other re- (b) The term "employer" means a ;7,..1, on eo:.;ed in an cipient as to whom such a finding has heen made and, shall industry affecting commerce wh: nore em- be limited in its effect to the particular program, or part ployees for each working day in of or more thereof, in which such noncompliance has been so found, calendar weeks in the current or 1dar year, or (2) hy any other means authorized by law: Provided. and any agent of such a person, ..itS'.1c1: !'rdoes not however, That no such action shall be taken until the de- include (11 the United States, a c..:71r,raiion w ..y owned partment or agency concerned has advised the appronriate hy the Government of the United Alan tribe, person or persons of the failure to comply with the re- or any department or agency of [1!:.4str.- of Columbia quirement and has determined that compliance cannot be subject statute to procedures of _tnpetitive service secured by voluntary means. In the case of any action (as defined in section 2102 of title t the Un;ted States terminating, or refusing to grant or continue, assistance Code), or (2) a how' fide private mewl-.v.rrhip clrb (other because of failure to comply with a requirement imposed than a lahor organization) which is exempt from taxation pursuant to this section, the head of the Federal depart- under section 501(c) the Internal Revenue Code of ment or agency shallfile with the committees of the 1954, except that during th- first yeaafter the date of House and Senate having 1,:gislative jurisdiction re.tne enactment of the Equal Employment Opporninity Act of program or activity involved a full writtm report ;it the /972, persons having fewer than twenty-five employees circumstances and the 2.rands for such action. No such (and their agents) shi.1, not be corcidered employers. action shall become ci,.;tive until thirty days have elapsed (c) The term "employment agency" means any person after the filing of such .epc.,7. regularly undertaking with or without compensation to pro- SEC. 603. Any department or agency action taken pur cure employees for an employer or to procure for employ- suant to section 602 shall be suhject to such judir;a1 review ees opportunities to work for an employer and includes an as may otherwise b.: provided hy hr or sim;!:.7 action agent of such a person. taken hy such department or agency on other t;r.,11.-.ds. /n /1) The term "labor organization" means a labor or- the case of action, not otherwise suhject to ludir.:d review. gf,-,.zation engaged in an industry affecting commerce, a id terminating or refusing to grant or is contini.:. tinancial agent of such an organization, and includes any ;,r- assistance upon a finding of failure to-,imply with.ny requirement imposed pursuant to section 602, any r aggrieved (includin :any State or polizica) subdivicion Includes 1972 amendments made by P.L. 92-261pri.., thereof and any agency of either) may ontain ;Alicia! re- in italic.

TEXTS OF REGULATIONS 71 ganization of any kind, any agency, or employee repre- of a State governmentcov. .alagency or political sentation committee, group, association, or plan so engaged subdivision. in which employees participate and which exists for the (g) The term "commerce- r.,cans trade, traffic, com- purpose, in whole or in part, of dealing with employers merce,transportation,trafr,n4,sion,orcommunication concerning grievances, labor disputes, wages, rates of pay, among the several States; or een a State and any place hours, or other terms or conditions of employment, and outside thereof; or within t!-v.District of Columbia, or a any conference, general committee, joint or system hoard, possession of the United Sta:e.,; or between points in the or joint council so engaged which is subordinate to a na- same State but through a p-n(1% outside thereof. tional or international labor organization. (h) The term "industry au,7,:ing commerce" means any (e) A labor organization shall he deemed to be engaged activity, business, or indw.tryl commerce or in which a in an industry affecting commerce if (11it maintains or labor dispute would hinder or obstruct comme ^:eorthe operates a hiring, hall or hiring office which procures em- free flow of commerce ini;1 ineffidcs any activityc. indus- ployees for an employer or procures for employees oppor- try "affecting commerce` the meaning el the Labor- tunities to work for an employer, or (2) the number of Management Reporting air.1. ',:sclosure Act of 1959, and its members (or, where itis a labor organization composed further includes any .':,;'''111111011talhIChISI7.. business, or of other labor organizations or their representatives, if the activity. aggregate number of the members of such other labor or- (i ) The term "State" includ,:s a .c the United ganization) is (A) twenty-five or more during the first year States, the District of Ce;urnbi.2 Rico, the Virgin after thedate of emict.nent of the Equal Employment Op- Isi:,nds, American Samoz,: ;Liam ::dand, the Canal portunity Act of 1972. or(B) fifteen or more thereafter, Zone, and Oute; Continental Shell defined in the and such labor organization Outer Continental Shelf Lands Aci. (j) The (1 )is the certified representative of en::')yees under term "religion.' includes aspects of religious observance and practice. as u'e the provisions of the National Labor Relations Act,as belief, 'Mess an em- amended, or the ailway 1_::vor Act, as amended; plover demonstrates that 1w is unable to reasonablyac- (2) although not :ertified, is a national or international commodate to an evzi.loyee.. prospective employee's, labor organization: or a local labor organization recognized religious observanc:, ,n ,,Pitflout undue hardship or acting as t:-.c representative of employees of an employer On the conduct of business. or employers engaged IC an industry affecting commerce; or EXEMPTION (3) has chartered a local labor organization or subsidi SEC. 702. This shall not apply to an employer with ar, body which is representing or actively seeking io rep- respect to the ere f,' iyment of aliens, outside any State, or resent employees of employers within the meaning of to a religious corporation, association,educational institu- paragraph (1) or (2) ; or tion,or society with respect to the employment of indi- (.4) has been chartered by a iabor organizatiol repre- viduals of a particular religion to perform work connected senting or actively seeking to represent employees within with the c:.rryio.; on by such corporation, association,edu- the meaning of paragraph (1) or (2)as the local or ational in.1,;voo,, ofsociety of its activiries. subordinate body through which such employees may enjoy membership or become affiliated with such labor DISCRIMINATION CAUSE Or RACE., COLOR, RELIGION. SEX, OR organization; or NATIONAL ORIGIN (5 )is a conference. general commilec. joint or system SEC. 703. (a) it he an unlawful employment prac- board, or joint council subordinate to a L dional or inter- tice forn employe: national labor organization, which includesa labor organi- zation engaged in an industry affecting commerce within (1) to fail or refuse to hire or to discharge any indi- the meaning of any of the preceding pPragraphs of this vidual, cc .,herwise to discriminate againstany individual subsection. with respect to his compensation. terms, conditions,or (I) The term "employee" means an individual employed privileges of employment, because of such individual'srace, by an employer,except that the tent; -employee" shall color, religion, sex, or national origin;or not include any pe,son elected to public officein any (2) to limit. segregate, or classify his employeesorap- State or political sultditision of any .S.tat,. hr the qualified plicants for employmentin any way which would deprive voters thereof. or any person chosen hsuch officer to be or tend to deprive any individual of employment oppor- tunitiesor otherwise adverselyaffect on such officer's persona!At,t(T.or an appointee on the hisstatusasan policymaking level or as imm:dime adviser $vith respect to employee, because of such individual's race. color, religion. the exerciseif the constitutimml or legal powers of the sex, or national origin. office. The .cemption set /orth 'n the precedingsentence (h)It shall be an unlawful employment practice foran shall not :delude employees .,u,',ject to the civil service laws employment agency tofail or refusetorefer for em-

72 T aE CONI7RENCE BCV-.0 ployment, or otherwise to discriminate against, any indi- ment practice" shall not be deemed to include any action vidual because of his race, color, religion, sex, or national or measure taken by an employer, labor organization, joint origin, or to classify or refer for employment any individu- labor-management committee, or employment agency with al on the basis of his race, color, religion, sex,or national respect to an individual who is a member of the Commu- origin. nist Party of the United States or of any other organiza- (c)It shall be an unlawful employment practice fora tion required to register as a Communist-action or Commu- labor organization nist-front organization by final order of the Subversive Ac- (1) to exclude or to expel from its membership.or tivities Control Board pursuant to the Subversive Activities otherwise to discriminate against, any individual because Control Act of 1950. of his race, color, religion, sex, or national origin: (g) Notwithstanding any other provision of this title, (2) to limit. segregate. or classify its membership.or it shall not be an unlawful employment practice for an applicants for membership or to classify or failor refuse employer to fail or refuse to hire and employ any indi- toreferfor employment any individual,inany way vidual for any position, for an employer to discharge any which would deprive or tend to deprive any individual of individual from any position, or for an employment agency employment opportunities. or would limit such employ- to fail or refuse to refer any individual for employment in ment opportunities or otherwise adversely affect his status any position, or for a labor organization to fail or refuse as an employee or as an applicant for employment, be- to refer any individual for employment in any position. cause of such individual's race, color. religion, sex, or na- if tional origin: or (1) the occupancy of such position. or access to the (3) to cause or attempt to cause an employer to dis- premises in or upon which any part of the duties of such criminate against an individual in violation of this section. position is performed or is to he performed, is subject to any requirement imposed in the interest of the national (d)Itshall he an unlawful employment practice for security of the United States under any security program any employer, labor organization. or joint labor-manage- in effect pursuant to or administered undo- any statute of ment committee controlling apprenticeship or other train- the United States or any Executive order of the President: ing or retraining, including on-the-job trainingprograms to and discriminate against any individual because of hisrace. ,2) such individual has not fulfilled or has ceased to color, religion. sex. or national origin in admissionto. or fulfill that requirement. employment M. any program established to provideap- (h) Notwithstanding any other provisicn of this title, prenticeship or other training. itshall not he an unlawful employment practice foran e) Notwithstanding an other provision of thistitle. employer to apply different standards of compensation,or (1)it shall not he an unlawful employment practice for different terms, conditions, or privileges of employment anemployt_ and employ employees. for an em- pursuant to a bona fide seniority or merit system, or a ployment agency to classify. or refer for employmentany system which measures earnings by quantity or quality of individual, for a labor organization to classifyits mem- production or to employees who work in different loca- bership or to classify or refer for employmentany indi- tions, provided that such differences are not the result of vidual, or for an employer, labor organization, or joint an intention to discriminate because of race. color, religion, labor - management committeecontrollingapprenticeship sex, or national origin, nor shall it be an unlawful employ- or other training or retraining programs to admit or em- ment practice for an employer to give and to act upon ploy an individual in any such program, on the basis of the results of any professionally developed ability testpro- his religion. sex, or national origin in those certain in- vided that such test, its administration or actionupon the stances where religion. sex, or national originisa bona resultsis not designed, intended or used to discriminate fide occupational qualification reasonablynecessary to the because of race, color, religion, sex or national origin. It normal operation of that particular businessor enterprise. shall not he an unlawful employment practice under this and (2)it shall not he an unlawful employment practice title for any employer to differentiateupon the basis of sex for a school, college, university, or other educational insti- in determining the amount of the wages or compensation tution or institution of learning to hire and employem- paid or to he paid to employees of such employer if such ployees of a particular religion if such school, college, uni- differentiationis authorized by the provisions of section versity, or other educational institution or institution of 6(d) of the Fair Labor Standards Act of 1938,as amended learning is, in whole or in substantial part. owned,sup- (29 U.S.C. 206(d) ). ported. controlled, or managed by a particular religionor (i) Nothing contained in this title shall applyto any by a particular religious corporation, association.or socie- business or enterprise on or near an Indian reservation with ty, or if the curriculum of such school, college. university. respect to any publicly announced employment practice of or other educational institution or institution of learning such business or enterprise under whicha preferential is directed toward the propagation ofa particular religion. treatment is given to any individual because he is an In- ( fl As used in this title, the phrase "unlawful employ- dian living on or near a reservation.

TEXTS OF REGULATIONS 73

ri k (j) Nothing contained in this title shall he interpreted more than three of whom shall he members of the same to require any employer, employment agency, labor or- political party.Members of the Commissionshall be ap- ganization, or joint labor-management committee subject pointed by the President by and with the advice and con- to this title to grant preferential treatment to any individ- sent of theSenatefor a term of fiveyears. Any individual ual or to any group becat:Ae of the race, color, religion,sex, chosen to fill a vacancy shall he appointed only for the or national origin of such individual or group on account unexpired term of the member whom he shall succeed, and of an imbalance which may exist with respect to the total all members of the Commission shall continue to serve number or percentage of persons of any race, color,re- until their successors are appointed and qualified, except ligion, sex, or national origin employed by any employer, that no such member of the Commission shall continue to referred or classified for employment by any employment serve (I) for more than sixty days when the Congress is agency or labor organization, admitted to membership or in session unless a nomination to fill such vacancy shall classified by any labor organization, or admitted to,or em- have been submitted to the Senate, or (2) after the adjourn- ployed in, any apprenticeship or other training program, ment sine die of the session of the Senate in which such in comparison with the total number or percentage of nomination was submitted.The President shall designate persons of such race, color, religion, sex, or national origin one member to serve as Chairman of the Commission, and in any community, State, section, or other area, or in the one member to serve as Vice Chairman. The Chairman available work force in any community, State, section,or shall he responsible on behalf of the Commission for the other area. administrative operations of the Commission, andexcept OTHER UNLAWFUL. EMPLOYMENT PRACTICES as provided in subsection (b),shall appoint, in accordance with theprovisions of title .5. United States Code, govern- SEC. 704. (a) It shall he an unlawful employmentprac- tice for an employer to discriminate against any of his ing appointments in the competitive service, such officers, employees or applicants for employment, for an employ- agents, attorneys, hearing examiners, and employees as he mentagency, or joint labor-management committee con- deems necessary to assist it in the performance of its junc- trolling apprenticeship or other training or retraining. in- tions and to fix their compensation in accordance with the including on-the-job training programs.to discriminate provisions of chapter 5/ and subchapter 111 of chapter 53 against any individual, or for a labor organization to dis- of title 5, United States Code, relating to classification and criminate against any member thereof or applicant for General Schedule pay rates: Provided, That assignment, re- moval. and compensation of hearing examiners shall be in membership, because he has opposed any practice madean unlawful employment practice by this title,or because he accordance with sections 3/05, 3344. 5362, and 752/ of has made a charge, testified, assisted, or participated in title 5. United States Code. any manner in an investigation, proceeding. or hearing (h) (/) There shall he a General Counsel of the Com- under this title. mission appointed by the President. by and with the advice and consent of the Senate. for a term of four years. The (h) It shall he an unlawful employment practice foran General Counsel shall have responsibility for the conduct employer, labor organization, employmentagency. or joint labor-managemen, committee controlling apprenticeship of litigation as provided in sections 706 and 707 of this or other training or retraining. including on-the-job train- title. The General Counsel shall have such other duties as ing programs.to print or publish or cause to be printed or the Commission may prescribe or as may he provided by published any notice or advertisement relating to employ- law and shall concur with the Chairman of the Cotrunis- ment by such an employer or membership in or any classi- sion on the appointment and supervision of regional at- fication or referral for employment by such a labor organi- torneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position zation, or relating to any classification or referral forem- ployment by such an employmentagency. or relating to and perform the functions specified in this subsection until a successor is appointed and qualified. admission to. or employment in, anyprogram established to provide apprenticeship or other training by such a joint (2) Attorneys appointed under this section may, at the labcr-management committeeindicating any preference, direction of the Commission, appear for and represent the limitation, specification, or discrimination, basedon race, Commission in any case in court, provided that the Attor- color, religion, sex, or national origin, except that sucha ney General shall conduct all litigation to which the Com- notice or advertisement may indicate a preference, limita- mission is a party in the Supreme Court pursuant to this tion, specification, or discrimination based on religion,sex, title. or national origin when religion, sex, or national origin is (r) A vacancy in the C mntission shall not impair the a bona fide occupational qualification for employment. light of the remaining members to exercise all the powers of the Commission and three members thereof shall con- FQU \II MPLOYMYNT OPPORTUNITY COMMISSION stitute a quorum. Sr( .705. (a) There is hereby created a Commission (d)The Commission shall have an official seal which to he known as the Equal Employment Opportunity Com- shall he judicially noticed. mission. which shall he composed of five members,not (e) TheCommission shall at the close of each fiscal year

74 THE ,ONFERENCE BOARD 7(3 report to the Congress and to the President concerning the including on-the-job training programs,has engaged in an action it has taken; the names, salaries, and duties of all unlawful employment practice, the Commission shallserve individuals in its employ and the moneys it has disbursed; a notice, o/ the charge (including the date, place and cir- and shall make such further reports on the cause of and cumstances of the alleged unlawful employment practice) means of eliminating discrimination and such recommen- onsuch employer, employment agency, labororganization. dations for further legislation as may appear desirable. or joint labor-management committee(hereinafter referred (I)The principal office of the Commission shall he in to as the "respondent")within ten days, and shall rru.':- or near the District of Columbia, but it may meet or exer- an investigation thereof. Charges shall he in writing under cise any or allits powers at any other place. The Com- oath or affirmation and shall contain such information and mission may establish such regional or State offices asit he in such form as the Commission requires. Chargesshall deems necessary to accomplish the purpose of this title. not he made public by the Commission. If the Commission (g) The Commission shall have power determinesafter investigation that there isnotreason- (1) to cooperate with and, with their consent, utilize able cause to believe ti,at the charge is true,it shall dismiss regional, State, local, and other agencies, both public and the charge and promptly notify the person claiming to he private, and individuals; aggrieved and the respondent of its action. In determining (2) to pay to witnesses whose depositions are taken or whether reasonable cause exists, the Commission shallac- cord substantial weight to final finding.. and orders made who are summoned before the Commission or any of its by State or local authorities in proceedings commenced agents the same witness and mileage fees as are paid to witnesses in the courts of the United States; under State or local law pursuant to the requirements of (3) to furnish to persons subject to this title such tech- .ubsections (c) and (d).If the Commission determines nical assistance as they may request to further their com- after such investigation that there is reasonable cause to pliance with this title or an order issued thereunder; believe that the charge is true, theCommission shall en- (4) upon the request of (i) any employer, whose em- deavor to eliminate any such alleged unlawful employ- ployees or some of them, or (ii) any labor organization. ment practice by informal methods of conference, con- whose members or some of them, refuse or threaten to ciliation, and persuasion. Nothing said or done during and as a part of such refuse to cooperate in effectuating the provisions of this informalendeavors may be made public by the title, to assist in such effectuating by conciliation or such Commission. its officers or employees, or used as other remedial action as is provided by this title: evidence in a subsequent proceedingwithout the written (5) to make such technical studies as are appropriate consent of thepersons concerned.Anypersonwhomakes to effectuate the purposes and policies of thistitleand to public information in violation of this subsection shall he make the results of such studies available to the. public; fined not more than $1,000 or imprisonedfornot more than oneyear. or both. The Commission shall make its (6) tointervene in acivil action broughtunder section determination on reasonable cause as promptly 706 byan aggrieved partyagainst a respondent other than as possible a government, governmental agency, or political sub- and. so far as practicable, not later thanone hundred and division. twenty days from the filing of the charge or. whereap- plicable under subsection (c) or (d) from the dateupon (h IThe Commission shall, in any of its educational or which the Commission is authorized to take action with promotional activities, cooperate with other departments respect to the charge. and agencies in the performance of such educational and (c)In the case of an alleged unlawful employmentprac- promotional activities. tice occurring in a State, or political subdivision ofa State, (i) All officers, agents. attorneys, and employees of the which has a State or local law prohibiting the unlawful Commission shall be subject to the provisions of section 9 employment practice alleged and establishingor authoriz- of the Act of Anus*, 2, 1939, as amended (the Hatch ing a State or local authority to grant or seek relief from Act), notwithstanding any exemption contained in such such practice or to institute criminal proceedings withre- section. spect thereto upon receiving notice thereof, no charge may he filed under subsection (a) by theperson aggrieved be- PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES fore the expiration of sixty days after proceedings have SEC. 706.(a) The Commission is empowered. as herein- been commenced under the State or local law, unless such after provided, to prevent any person from engaging in any proceedings have been earlier terminated, provided that unlawful employment practice as .set forth in section 703 such sixty-day period shall be extended toone hundred and or 704 of this title. twenty days during the first year after the effective date of (b) Whenevera charge is filed by or on behalf of a such State or local law. If any requirement for thecom- person claiming to be aggrieved, or by a member of the mencement of such proceedings is imposed by a Stateor Commission,alleging thatan employer, employment agen- local authority other than a requirement of the filing of cy, labororganization, or joint labor-management commit- a written and signed statement of the facts upon which tee controlling apprenticeship or other training or retraining. the proceeding is based, the proceeding shall he deemedto

TEXTS OF REGULATIONS 75 have been commenced for the purposes of this subsection at agency. or political subdivision. a charge filed with the the time such statement is sent by registered mail to the Commission pursuant to subsection (b) is dismissed by the appropriate State or local authority. Commission, orifwithin one hundred and eighty days (d) In the case of any charge tiled by a member of the from the filing of such charge or the expiration ofany Commission alleging an unlawful employment practice oc- period of reference under subsection (c) or (d), whichever curring in a State or political subdivision of a State which is later, the Commission has not filed a civil action under has a State or local law prohibiting the practice alleged this section or the Attorney General has notifieda civil and establishing or authorizing a State or local authority action in a rase involving a government. governmental to grant or seek relief from such practice or to institute agency, or political subdivision or the Commission has not criminal proceedings with respect thereto upon receiving entered into a conciliation agreement to which theperson notice thereof, the Commission shall, before taking any aggrieved is a party. the Commission,or the Attorney Gen- action with respect to such charge, notify the appropriate eral in a case involving a government, governmentalagen- State or local officials and, upon request, afford them a cy, or political subdivision. shall so notify the personag- reasonable time, but not less than sixty days (provided grieved and within ninety days after the giving of such that such sixty-day period shall be extended to one hun- notice a civil action may be brought against the respondent dred and twenty days during the first year after the effec- named in the charge (A) by the person claimingto he tive date of such State or local law), unless a shorter period aggrieved, or (B) if such charge was filed bya member of is requested, to act under such State or local law to remedy the Commission, by any person whom the charge alleges the practice alleged. was aggrieved by the alleged unlawful employmentprac- tel A charge under this section shall be tiled within one tice. Upon application by the complainant andin such hundred and eighty days after the alleged unlawful em- circumstances as the court may deem just, thecourt may ployment practice occurred and notice of the charge (in- appoint an attorney for such complainant andmay author- cluding the date. place and circumstances of the alleged ize the commencement of the action without thepayment unlawful employment practice) shall he served upon the of fees, costs, or security. Upon timely application,the person against whom such charge is made within ten days court may, in its discretion, permit the Commission,or the thereafter, except that in a case of an unlawful employment Attorney General in a case involving a government,gov- practice with respect to which the person aggrieved has ernmental agency, or political subdivision,to intervene in initially instituted proceedings with a State or local agency such civil action upon certification that thecase is of gen- with authority to grant or seek retie/ from such practiceor eral public importance. Upon request, thecourt may, in its to institute criminal proceedings with respect thereto upon discretion, stay further proceedings fornot more than sixty receiving notice thereof. such charge shall he filed by or on days pending the termination of Stateor local proceedings behalf of the person aggrieved within three hundred days described in subsections (c) or (d) of this sectionor ; urther after the alleged unlawful employment practice occurred, efforts of the Commission to obtain voluntary comi,lianrc. or within thirty days after receiving notice that the State (2) Whenever a charge is filed with the Commissiocand or local agency has terminated the proceedings under the the Commission concludes on the basis ofa preliminary State or local law, whichever is earlier, and a copy of such investigation that prompt judicial action isnecessary to charge shall he filed by the Commission with the State or carry out the purposes of this Act, the Commission,or the local agency. .4 ttorney General in a case involvinga government, gov- (0( It If within thirty days after a charge is filed with ernmental agency, or political subdivision,may bring an the Commission or within thirty days after expiration of action for appropriate temporary or preliminaryrelief any period of reference under subsection (e) or (d), the pending final disposition of such charge. Anytemporary Commission has been unable to secure train the respondent restraining order or other order granting preliminaryor a conciliation agreement acceptable to the C temporary relief shah be issued in accordance with rule 65 the Commission may bring a civil action aka' n anyre- of the Federal Rules of Civil Procedure.It shall he the .%pondent not a government, ,goverronental ager.c.,.. 4. duty Of a court having jurisdictionocer proceedings under .subdivision named in the charge. In the case. f a re- this section to assign cases for hearingat the earliest prac- spondent which is a government, cnwernmen ary. o" ticable date and to cause such cases to be in-very way political subdivision, if the Commission has 14 to expedited. secure from the respondent a conciliation agreemer., ac- (3) Each United States district court and each United ceptable to the Commission, the Commission shall take :10 States court of a place subject to the jurisdictionof the further action and shall refer the case to the Attorney G.,. United States shall have jurisdiction of actions brought era! who may bring a civil action against such respondent under this title. Such an act:on may be brought in any in the op firs 'prime United States district court. Theperson judicial district in the .S'intein which the unlawful em- or persons aggrieved shall have the right to intervene in ployment practice is alleged to have been committed, a civil in brought by the Commission or the .4 nornev thejudicialdistrictinwhichthe employment records General in a case involving a .c,Povernment. governmental relevant to such practice are maintained and administered.

7F THE CONFERENCE BOARD

U IL; or in the judicial district in which the aggrieved person with respect to civil ac brought under this section. would have worked but for the alleged unlawful employ- (i) In any case in wi.La employer, employment agen- ment practice. but if the respondent is not found within cy, or labor organization fails to comply with an order of any such district, such an action may be brought within a court issued in a civil action brought under this section, the judicial district in which the respondent has his prin- the Commission may commence proceedings to compel cipal office. For purposes of sections 1404 and 1406 of compliance with such order. title 28 of the United States Code, the judicial district in (j) Any civil action brought tinder this section and any which the respondent has his principal office shall in all proceedings brought under subsection (i) shall he subject cases he considered a district in which the action might to appeal as provided in sections 1291 and 1291, title 2S. have been brought. United States Code. (4) It shall be the duty of the chief judge of the district (k) In any action or proceeding under thistitlethe (or in his absence, the acting chief judge) in which the court, inits discretion, may allow the prevailing party. case is pending immediately to designate a judge in such other than the Commission or the United States, a reason- district to hear and determine the case. In the even; that able attorney's fee as part of the costs, arid the Commis- no judge in the district is available to hear and determine sion and the United States shall he liable for costs the the case, the chief judge of the district, or the acting chief same as a private person. judge, as the case may he. shall certify this fact to the SEC. 707.(a) Whenever the Attorney General has chief nudge of the circuit (or in his absence, the acting chief reasonable cause to believe that any person or group of judge) who shall then designate a district or circuit judge persons is engaged in a pattern or practice of resistance of the circuit to hear and determine the case. to the full enjoyment of any of the rights secured by this (5) 11 shall be the duty of the judge designated pursuant title, and that the pattern or practice is of such a nature to this subsection to assign the case for hearing at the and is intended to deny the full exercise of the rights herein earliest practicable date and to cause the case to he in described, the Attorney General may bring a civil action in every way expedited. If such judge has not scheduled the the appropriate district court of the United States by filing case for trial within one hundred and twenty days after with it a complaint (1) signed by him (or in his absence issue has been joined, that judge may appoint a master pur- the Acting Attorney General), (2) setting forth facts per- suant to rule 53 of the Federal Rules of Civil Procedure. taining to such pattern or practice, and (3) requesting such (g) If the court finds that the respondent has intention- relief, including an application for a permanent or tempo- ally engaged in or is intentionally engaging in an unlawful rary injunction, restraining order or oth,:r order against the employment practice charged in the complaint, the court person or persons responsible for such pattern or practice, may enjoin the respondent from engaging in such unlawful as he deems necessary to insure the full enjoyment of the employment practice, and order such affirmative action as rights herein described. may he appropriate.. which may include. but is not limited (b) The district courts of \the United States shall have to, reinstatement or hiring of employees, with or without and shall exercise jurisdictionof proceedings 'nstituted hack pay (payable by the employer, employment agency. or pursuant to this section, and in any such proceeding the labor organization, as the case may be. rsponsitfor the Attorney General may file with the clerk of such court a unlawful employment practice). or any otherquitable request that a court of three judges be conencd to hear relief as the court deems appropriate. Back pay liability and determine the case. Such request by the Attor.iey shall not accrue from a date more than two years prior to General shall be accompanied by a certificate that, in his the filing of a charge with the Commission. Interim earn- opinion, the case is of general public importance. Acopy tgs or amounts earnable with reasonable diligence by the of the certificate and request for a three-judge court shall person or persons discriminated against shall operate to he immediately furnished by such clerk to the chief judge reduce the hack pay otherwise allowable. No order of the of the circuit (or in his absence, the presiding cir,iiit judge court shall require the admission or reinstatement of an of the circuit) in which the case is pending. Upon receipt individual as a member of a union, or the hiring, reinstat- of such request it shall he the duty of the chief judge of ment.'or nromotion of an individual as an employee,or the the circ:iit or the presiding circuit judge. as thecase may partner:, !o him of any back pay. if such individual was he, to designate immediately three judges in such circuit. refused ,:.mission, suspended. or expelled, orWa.\-refused of whom at least one shall he a circuit judge and another employment or advancement or was suspended or dis- of whom shall he a district judge of the court in which the charged for any reason other than discrimination on ac- proceeding was instituted, to hear and determine suchcase, count of race. color. religion, sex. or national origin or and it shall he the duty of the judges so designated to assign in violation of section 704(a). the case for hearing atthe earliest practicable date. to ( h) The provisions of the Act entitled "An Act to amend participate in the hearing and determination thereof, ai'd the Judicial Code and to define and limit the jurisdiction to cause the case to he in every way expedited. An appeal of courts sitting in equity. and for other purposes.'' ap- from the final judgment of such court will lie to the Su- proved March 23. 1932 (29 U.S.C. 101-115) shall not apply preme Court.

TEXTS OF REGULATIONS 77 In the event the Attorney General fails to file sucha charge filed under section 706, the Commis!ionor its des- request in any such proceeding, it shall be the duty of the ignated representative shall at all reasonable timeshave chief judge of the district (or in his absence, the acting access to, for the purposes of examination, and the right to chief judge) in which the case is pending immediately to copy any evidence of any person being investigatedor designate a judge in such district to hear and determine proceeded against thatrelates to unlawful employment the case. In the event that no judge in the district is avail- practices covered by this title and is relevant to the charge able to hear and determine the case, the chief judge of under investigation. the district, or the acting chief judge, as the case may he, (h) The Commission may cooperate with Stateand local shall certify this fact to the chief judge of the circuit (or agencies charged with the administration of State fairem- in his absence, the acting chief judge) who shall then des- ployment practices laws and, with theconsent of such ignate a district or circuit judge of the circuit to hear and agencies, may, for the purpose of carrying out its functions determine the case. and duties under this title and within the limitation of It shall be the duty Of the judge designated pursuant to funds appropriated specifically for suchpurpose, engage in this section to assign the case for hearing at the earliest and contribute to the cost of research and otherprojects practicable date and to cause the case to he in every way of mutual interest undertaken by such agencies,and utilize expedited. the services of such agencies and their employees,and, not- (c) Effective two years after the date of enactment of withstanding any other provision of law,pay by advance the Equal Employment Opportunity Act of 1972, the func- or reimbursement such agencies and their employees for tions of the Attorney General under this section shall he services rendered to assist the Commission in carryingout transferred to the Commission. together with suchper- thistitle. In furtherance of such cooperative efforts, the sonnel.property, records, and unexpended balances of Commission may enter into written agreements withsuch appropriations, allocations, and other funds employed, State or local agencies and such agreementsmay include used, held. available. or to be made available in connec- provisions under which the Commission shall refrainfrom tion with such functions unless the President submits, and processing a charge in any cases or class ofcases specified neither House of Congress vetoes, a reorganizationplan in such agreements or under which the Commission pursuant to chapter 9. of title shall 5, United States Code. relieve any person or class of persons in suchStag or inconsistent with the provisions of this subsection. The locality from requirements imposed under this section.The Commission shall carry out such functions in accordance Commission shallrescind such agreement wheneverit tvith subsections (d) and (e) of this section. determines that the agreement no longerserves the interest (d) Upon the transfer of functions provided for in sub- cif :iffective enforcement of this title. .section (c) of this section. in all suits commenced purstmnt (c) Every employer, employmentagency, and labor or- to this section prior to the date of such transfer, proceed- gariz.ation subject to this title shall (1) make and keepsuch ings shall continue without abatement. allcourt orders and records relevant to the determinations of whether unlawful decrees shall remain in effect, and the Commission shall be employment practices have beenor are being committed, substituted as a party for the United States of America. the (2) preserve such records for such periods, and (3)make .4ttorney General, or the Acting Attorney General.as ap- such reports therefrom, as the Commission shall propriate. prescribe by regulation or order, after public hearing,as reasonable, (e) Subsequent to the date of enactment of the Equal necessary, or appropriate for the enforcement of this title Employment Opportunity Act of 1972. the Commission or the regulations or orders thereunder. The Commission .shall have authority to investigate and act on a charge of shall, by regulation, require each employer, labororganiza- a pattern or practice of discrimination. whether filed by or tion, and joint labor-management e..mmittee subjectto this on behalf of a person claiming to he aggrieved or by a title which controls an apprenticeshipor other training pro- member of the Commission. All such actions shall he con- gram to maintain such records as are reasonablynecessary ducted in accordance with the procedures set forth insec- to carry out the purpose of this title, including, but tion 7(M of this Act. not limited to, a list of applicants who wishto participate in EFFECT ON STATE I AWS such program, including the chronologicalorder in which SEC. 708. Nothing in this title shall he deemed to exempt applications were received, and to furnishto the Commission or relieve any person from any liability, duty, penalty, or upon request, a detailed description of the manner in which punishment provided by any present or future law ofany persons arc selected to participate in the apprenticeshipor State or political subdivision of a State. other thenany other training program. Any employer, employmentagen- such law which purports to require or permit the doing cy. labor organization, or joint labor-management commit- of any act which would he an unlawful employmentprac- tee which believes that the application to it ofany regula- tice under this title. tion or order issued under this section would resultin un- due hardship may apply to the Commission foran exemp- INVESTIGATIONS, INSPECTIONS, RECORDS. STATE AGENCIES tion from the application of such regulationor order, and, SEE. 709. (a I In connection with aninvestigation of a if such application for an exemptior isdenied. bring a

78 THE CONFERENCE BOARD

8-2 civil action in the United States district court for the dis- (h) A willful violation of this section shall be punish- trict where such records are kept. If the Commission or able by a fine of not more than $100 for each separate the court, as the case may he, finds that the application of offense. theregulation or ordertotheemployer, employment agenc) or labor organization in question would impose an VETERANS' PREFERENCE. SEC.712. Nothing contained in this title shall be con- undue hardship, the Commission or the court, as the case strued to repeal or modify any Federal, State, territorial, may he, may grant appropriate relief. 1/any person re- or local law creatingspecialrightsor preferencefor quired to comply with the provisions of this subsection fails veterans. or refuses to do so, the United States district court for the district in which .such person is found. resides, or transacts RULES AND REGULATIONS business. shalt upon application of the Commission. or the SEC. 713.(a) The Commission shall have authority Attorney General in a case involving a government. gov- from time to time to issue, amend, or rescind suitable ernmental agency or political subdivision. have jurisdiction procedural regulations to carry out the provisions of this to issue to such person an order requiring him to comply. title. Regulations issued under the section shall he in con- (d) In prescribing requirements pursuant to subsection formity with the standards and limitations of the Adminis- (c) of this section, the Commission shall consult with other trative Procedure Act. interested State and Federal agencies and shall endeavor (b) In any action or proceeding ',aced on any alleged to coordinate its requirements with those adopted by such unlawful employment practice, no person shall he subject agencies. The Commission shall furnish upon request and to any liability or punishment for or on account of (I) the without cost to any State or local agency charged with the commission by such person of an unlawful employment administration of a fair employment practice law infor- practice if he pleads and proves tilio the act or omission mation obtained pursuant to subsection (c) of this section complained of was in good faith, in conformity with, and from any employer. employment agency, labor organiza- in reliance on any written interpretation or opinion of the tion. or joint labor-management committee subject to the Commission, or (2) the failure of such person to publish jurisdiction of such agency. Such information shall he and file any information required by any provision of this furnished on condition that it not he made public by the title if he pleads and proves that he failed to publish and recipient agency prior to the institution of a proceeding file such information in good faith, in conformity with the under State or local law involving such information. If this instructions of the Commission issued under this titlere- condition is violated by a recipient agency. the Commission garding the filing of such information. Such a defense. if may decline to honor subsequent requests pursuant to this established, shall he a bar to the action or proceeding, not- .subsection. withstanding that (A) after such act or omission, such in- (e IIt shall he unlawful for any officer or employee of terpretation or opinion is modified or rescinded or is de- the Commission to make public in any manner whatever termined by judicial authority to be invalid or of no legal any information obtained by the Commission pursuant to effect, of (B) after publishing or filing the description and its authority under this section prior to the institution of annual reports, such publication or filing is determined by any proceeding under this title involving such information. judicial authority not to he in conformity with the require- Any officer or employee of the Commission who shall ments of this title. make public in any manner whatever any information in FORCIBLY RESISTING THE COMMISSION OR ITS violation of this subsection shall he guilty of a misde- REPRESENTATIVES meanor and upon conviction thereof, shall he fined not SEC'.714. The provisions of sections Illand 1114 more than $1,000, or imprisoned not more than one year. title 18, United States Code, shall apply to officers, agents, !s:Es-Tic ray POWERS and employees of the Commission in the performance of Sec. 710. For the purpose of all hearings and investiga- their official duties.Notwithstanding the provisions of sec- tions conducted by the Commission or its duly authok-ed tions 111 and 1114 of title 18. United States Code, who- agents or agencies, section II of the National Labor Rela- ever in violation of the provisions of section 1114 of such tions Act (49 Stat. 455; 29 U.S.C. 161) shall apply. title kills a person while engaged in or on account of the performance of his official functions under this Act shall NOTICES TO BF. POSTED he punished by imprisonment foranyterm of years or for SEC.711. (a) Every employer, employment agency, and life. labor organization.asthe case may he. shall post and keep po,iedinconspicuous places uponitspremises where EQUAL EMPLOYMENT OPPORTUNITY noticesto employees,applicantsfor employment, and COORDINATING COUNCIL. members are customarily posted a notice to he prepared nr approved by the Commission settingforth excerpts Sec. 715. There shall be established an Equal Employ- from, or summaries of, the pertinent provisions of this title »lent Opportunity Coordinating Council (hereinafter re- and information pertinent to the filing of a complaint. ferred to in this section as the Council) composed of the

TEXTS OF REGULATIONS 79 Sccrelarl of labor. the Chairman of the Equal Employ- mi.sion, in those units of the Government of the District ment Opportenits Commission, the Attorney General. the of Cohmtbia having positions in the competitive service, Chairman of the United States Civil Service Commission, and in those units of the legislative and judicial branches and the Chairman of the United States Civil Rights Com- of the Federal Government 14.ving positions in thecoy.- mission, or their respective delegates. The Council shall ',entire service, and in the Library of Congress shall be have the responsibility for developing and implementing mode free from any discrimination based on race, color, agreements, policies and practices designed to maximize religion.se.r. or national origin. effort, promote efficienc y. and eliminate conflict, competi- (h) Except as otherwise provided in :his subsection. the tion, duplication and inconsistency among the operations, Civil Service Commission shall have authority to enforce functions and jurisdictions of the various departments. the provisions of subsection (a) thiough appropriatereme- agencies and branches of the Federal government responsi- dies, including reinstatenwnt or hiring of employees with ble for the implementation and enforcement of equalem- or without back pay, as will effectuate the policies of this ployment opportunity legislation, orders, and policies. On section, and shall issue such rules, resulatiors, orders, and or before July I of each year. the Council shall transmit to instructions as it deems necessary and appropriate to corry the President and to the Congressa report of its activities, out its responsibilities under this section. The Civil Service together with .such recommendations for legislativeor ad- Commission shall ministrative changes as it concludes are desirable to further (I) he responsible for the annual review and approval promote the purposes of this section. of a national and regional equal employment opportunity plan which each department and agency each appro- LI I I Cl IVL DATE. priate unit referred to in ,subsection (a) of this section shall SEC .716. (a) This title shall hecome effective oneyear submit in order to maintain an affirmativepr>rani of after the date of its enactment. equal employment opportunity for all such employees and (h)Notwithstanding subsectior.(a ),sections of this applicants for employment; title other than sections 703, 704. 706. and 707 shall be- (2) be responsible for the review and evaluation "f the come effective immediately. operation of all agency equal employment opportunity (c) The President shall. as soon as feasible after the programs. periodically obtaining and publishing (on at enactment of this title, convene one or more conferences least a semiannual basis) progress reports from each such for the purpose of enabling the leaders ofgroups whose department. agency. or unit; and members will he affected by this title to become familiar (3) consult with and solicitthe recommendations of with theright afforded and ohlig,ations imposed by its interested individuals, groups, and organizations relatingto provisions. and for the purpose of making plans which equal employment opportunity. will result in the fair and effective administration of this The head of each such department,agency. or unit shall title when allofitsprovisions become effective. The comply with such rules. reguu,tions. orders, and instruc- President shall invite the participation in such conference tions which shall include a prmision thatan employee or or conferences of (I)the memhers of the President's applicant for employment shall be notified ofany final Committee on Equal Employment Opportunity. (2) the action taken on any complaint o: discrimination filed by memhers of the Commission on Civil Rights. (3)repre- him thereunder. The plan ,submitted by each department. sentatives of State and local agencies engaged in further- agency, arid unit shall inchaie, hut not he limited to ing equal employment opportunity. (4) representatives of ( I ) provision for the establishment of training and edu- private agencies engaged in furthering equal employment cation programs designed to providea maximum oppor- opportunity. and (5 ) representatives of employers. labor tunity for employees to advance soas to perform at their organizations. and employment agencies who will he sub- highest potential: and ject to this title. (2) a description of the eoalifications teems of train- ing and experience relating to equal employmentoppor- NONDISCRIMINATION IN FEDERAL tunity for the principal and e,-,eating officials of each such GOVERNMENT EMPLOYMENT department. agency, or Unit r'sponsible for carryingout See. 717. (a) All personnel actions affecting employees the equal employm lot opporpmityprOgralll and of the or applicants for employment (except $vith regard to aliens allocat'on of personnel and resources proposed by such employed outside the limits of the United States) in mili- department, agency, Or unit to carry out its equal employ- tary departments as &limd in section 102 of title 5. United rent opportunity program. .States Code, in executive agencies (mho,- than the General With respect to employment in the Library ofCongress, Accounting Office) as defined in section 105 of title 5, authorities granted in this subsection to the Civil Service United States Code (including employees and (applicants Commission shall ,'e exercised by the Lilnitian of Con- for employment who are paid from nonapprop(iated funds), in the United States Poval Service and the Postal Rate Com- gn(c).within th'rty days of receipt of notice of final action

80 THE CONFERENCE BOARD taken by a department, agency, or unit referred to in sub- 1681. Sex. section 7I7(a). or by the Civil Service Commission upon "(a) Prohibition against discrimination; exceptions. an appeal from a decision or order of such department. No person in the United States shall, on the basis of ar;ency, or unit on a complaint of discrimination based on sex, be excluded from participation in, he denied the bene- rare, color, religion. sex, or national origin, brought pur- fits of, or he subjected to discrimination under any educa- suant to subsection (a) of this section. Executive Order tion program or activity receiving Federal financial assist- 11478 or any succeeding Executive orders, or after one ance, except that: hundred and eighty days from the filing of theinitial charge with the department, agency, or unit or with the "(1) Classes of educational institutions subject to prohi- Civil Service Commission on appeal from a decision or bition. order of such department. agency. or unit until such time In regard to admissions to educational institutions, this as final action may he taken by a department. agency, or section shall apply only to institutions of vocational educa- unit. an employee or applicant for employment. if aggrieved tion, professional education, and graduate higher educa- by the final disposition of his complaint, or by the failure tion, and to public institutions of undergraduate higher to take final action on his complaint, may file a civil action education., as provided in section 706. in which civil action the head of the department, agency, or unit. as appropriate, shall he the defendant. "(2) Educational institutions commencing planned change in admissions. (d) The provisions of section 706(1) through (k), as ap- plicable. shall govern civil actions brought hereunder. In regard to admissions to educational institutions, this (e) Nothing contained in this Act shall relieve any Gov- section shall not apply (A) for one year from June 23, ernment agency or Gfficial of its or his primary responsibil- 1972, nor for six years after June 23, 1972, in the case of an educational institution which has begun the process ity to assure nondiscrimination in employment as required of changing from being an institution which admits only by the Constitution and statutes or of its or his responsi- students of one sex to being an institution which admits bilities under Executive Order 11478 relating to equal em- students of both sexes, but only if it ployment opportunity in the Federal Government. is carrying out a plan fo such a changehich is approved by the Commissioner SPECIAL PROVISIONS WITH RESPECT TO of Education or (B) for seven years from the datean DE.VIAL. TERMINATION. AND SUSPENSION educational institution begins the process of changing from being an institution which admits only students of only one OF GOVERNMENT CONTRACTS sex to being an institution which admits students of both Sec. 718. No Government (-ammo. or portion thereof, sexes, but only if it is carrying out a plan for such a change with any employer. shall he denied, withheld. terminated. which is approved by the Commissioner of Education, or suspended. hr any agency or officer of the United States whichever is the later: :older any equal employment opportunity law or order. where such employer has an affirmative action plan which "(3) Educational institutions of religious organizations with has previously been accepted by the Government for the contrary religious tenets. same facility within the past twelve months without first This section shall not apply to an educational institution according such employer full hearing and adjudication which is controlled by a religious organization if the appli- under the provisions of title 5. United States Code. section cation of this subsection would not be consistent with the 554, and the following pertinent sections: Provided. That religious tenets of such organization: if such employer has deviated substantially from such previously agreed to affirmative action plan. this section "(4) ',Educational institutions training individuals for mili- shall not apply: Provided further. That for the purposes of tary services or merchant marine. this section an affirmative action plan shall he decoied to This section shall not apply to an educational institution have been accepted by the Government at the time the whose primary purpose is the training of individuals for appropriatecompliance agency has accepted such plan unh ., the military services of the United States. or the merchant within forty-five days thereafter the Office of Fed- marine: and eral Contract Compliance has disapproved such plan. "(5) Public educational institutions with traditional and Title IX of the Educational continuing admissions policy. Amendments of 1972, P.L. 92-318 In regard to admissions this section shall not apply to any public institution of undergraduate higher education (This Title has been codified as Title 20. Chanter 38 in which is an institution that traditionally and continually the U.S. Code. It prohibits sex discrimination oz employ- from its establishment has had a policy of admitting only ment and programing as well as in admissions.) students of one sex.

TEXTS OF REGULATIONS 81 "(b) Preferential or disparate treatment because of imbal- the appropriate person or persons of the failure to com- ance in participation or receipt of Federal benefits; ply with the requirement and has determined that compli- statistical el idence of imbalance. ance cannot he secured by voluntary means. In the case of Nothing comar ed in subsection (a) of this section shall any action terminating, or refusing to grant or continue, he interpreted torequire any educ:tional institutionto assistance because of failure to comply with a requirement grant preferential or disparate treatment to the members imposed pursuant to this section. the head of the Federal of One sex on account of an imbaian,:e which may exist department or agency shall file with the committees of the with respect to the total number or Nrcentage of persons House and Senate having legislative jurisdiction over the of that sex participating in or receiving the benefits of any program or activity involved a full written report of the federally supported proeram activity.in comparison circumstances and the grounds for such action. No such with the total number or vrcentage of persons of that action shall become effective until thirty days have elapsed sexinany community. Star :,section,or otherarea: after the filing of such report." Provided. That this subsection shall not be construed to prevent the consideration in any hearing or proceeding tinder this chapter of statistical evidence tending to show § 1683. Judicial review. that such an imbalance exists with respect to the partici- "Any department or agency action taken pursuant to sec- pation in. or receipt of the benefits of, any such proram tion 1682 of this title shall he subject to such judicial review or activity by the members of one sex. as may otherwise he provided by law for similar action taken by such department or agency on other grounds. In "te) Educational institution defined. the case of action, not otherwise subject to judicial review, For purposes of this chapter an educational institution terminating or refusing to grant or to continue financial means any public or private preschool, elementary, or see- assistance upon a finding of failure to comply with any re- ondar school, or any institution of vocational. profes- quirement imposed pursuant to section 1682 of this title, sional, or higher education, except that in the case of an any person aggrieved (including any State or political sub- educational institution composed of more than one school. division thereof and any agency of either) may obtain college. or department which are administratively separate judicial review of such action in accordance with chapter 7 units, such term means each such school, college, or de- of Title 5, and such action shall not he deemed committed partment." to unreviewahle agency discretion within the meaning of section 701 of that title." § 1682.Federal administrative enforcement;reportto congressional committees. "Fitch Federal department and agency which is empow- § 1684.Blindnessorvisualimpairment;prohibition ered to extend Federal financial assistance to any educa- against discrimination. tion program or activity, by way of grant, loan, or contract "No person in the United States shall, on the ground of other than a contract of insurance or guaranty, is author- blindness or severely impaired vision, be denied admission ized and directed to effectuate the provisions of section in any course of study h) a recipient of Federal financial 1(0;1 of this title with respect to such program or activity assistance for any education program or activity, but noth- by issuing tides. regulations, or orders of general applica- ing herein shall he construed to require any such institution bility N4hich shall he consistent with achievement of the to provide any special services to such person because of objectives of the statute authorizing the financial assistance his blindness or visual impairment." in connection with which the action is taken, No such rule. regulation, or order shall become effective unless and until approve by the President. Compliance with any require- fi ment ill..%ted pursuant to this section may he effected ) 1685. Authority under other laws unaffected. (r,the rntination of or refusal to grant or to continue "Nothing in this chapter shall add to or detract from assistar under such program or activity to any recipient any existing authority with respectto any program or as to . ,m there has been an express finding on the rec- activity under which Federal financial assistance is extended ord. a opportunity for hearing, of a failure to comply by way of a contract of insurance or guaranty." with such requirement, but such termination or refusal shall he limited :o the particular political entity, or part thereof, or other recipient as to whom such a finding has been fi1686. Interpretation with respect to living facilities. made, am' shall he limited inits effect to the particular ithstanding anything to the contrary contained in pro: itn, i., part thereof, in which such noncompliance has this chapter, nothing contained herein shall he construed been su found, or (2 1by any other means authorized by to prohibit any educational institution receiving funds un- law: Provid.d. however. That no such actionshall he der this Act, from maintaining separate living facilities for taken until tiv department or agency concerned has advised the different sexes."

82 THE CONFERENCE BOARD The State and Local Fiscal Assistance TITLE I -I.AW El TFORCEMENT Act of 1972, P.L. 92-512 ASSISTANCE

(This Act, sometimes called the Federal RevenueSharing Act, has been codified as Title 31, Chapter 24 in theU.S. PART F-ADMINISTRATIVE PROVISIONS Code. Subchapter II specifically deals with nondiscrimi- nation.)

SUBCHAPTER II-ADMINISTRATIVE PROVISIONS "SEC. 518, (a) Nothing contained in this titleor any 1242. Nondiscrimination provision. other Act shall be construed to anth,vize any department, "(a)Ingeneral. agency, officer or employee of the Lnited States to exer- No person in the United States shallon the ground of cise any direction, supervision, or control overany police race, color, national origin, or sex he excluded from par- force or any other law enforcement and criminal justice ticipation in, he denied the henefits of,or he suhjected to agency of any State or any political subdivision thereof. discrimination under any program or activity funded in "(b) Notwithstanding any other provision of law noth- whole or in part with funds made availahle under soh- ing contained in this title shall F. construed to autnorize chapter I of this chapter. the Administration (I) to require, or condition availa- bility or amount of a grant upon, the adoption hyan appli- "(b) Authority of Secretary. et:'t or grantee u-der tFis title of a percentage ratio, quota Whenever the Secretary determines thata State govern system, or other program ;o achieve racial halanceor to ment or unit of local government has failed to comply eliminate racial irbalance in any law enforcementagency. with suhsection (a) of this sectionor an applicanle regu- or (2) to deny or discontinue a grant hecause of the re- lation, he shall notify the Governor of the State(or, in fusal of an applicant or grantee under this titleto adopt the ease of a unit of local government, the Gov Crnor of such a ratio, system, or other program. the State in which such unit is located) of thenoncom- "(c) (INo person in.ny State shallon theground of pliance and shall request the Governorto secure compli- race, color, national origin, or sex he excluded frompar- ance. If within a reasonahle period of time the Governor ticipation in, he denied the henefits of,or he subjected to fails or refuses to secure compliance. the Secret-try isau- dis. -iminati,,n under any program or activity fundedin thorized (11 to refer the matter to the Attorney General whole or in part with funds made available under this title. with a recommendation that an appropriate civil action oe "(21Whenever the Administration determines that instituted;(2)to exercise the powers and flu...lions pro- a State government or any unit of general localgovernment vided by title Vi of the Civil Rights Act of1964:or (3) to has failed to comply with suhsection (c)(1) take such other actions as may he provided by law, or an appli- cable regulation, it shall notify the chief executiveof the State of the noncompliance and shallrequest the chief ex- "(c) :authority of Attorney General. ecutive to secure compliance. If withina reasonahle time When a matter is referred to the Attorney Generalpur- after such notification the chief executive failsor refuses suant to suhsectionI h) of this section. or whenever he has to secure , ompliance, the Administration shall exercise the reason to believe that a State government or unit of local powers and functions provided in section 309 of this title, government is engaged in a pattern or practice in violation and is auth,trized concurrently with such exercise of the provisions of this section. the Attorney Generalmay "(A ) to institute an appropriate civil action: hying a civil action in any appropriate United Statesdistrict "(13) to exercise the powers and functionspursuant court for such ;chef as may he appropriate, including in- totitle tunctive VI of the CivilRights Act of1964 42 U.S.C. 2000d);or "(C) to take such other action as may he provided by law. "(3) Whenever the Attorney General hasreason to he- Crime Control Act of 1973, P.L. 93-83 lieve that a State government or unit Of loc: :lgovernment is engaged in a pattern or practice in violation of thepro- (7'itle I. Part F of this law, which amends the Omnibus visions of this section. the Attorney Generalmay bring a Crime Control and Safe Streets Act of 1968to establish civil action in any appropriate United States districtcourt the Law Enforcement Assistance Administration,speci- for such relief as may he appropriate, including injunctive fically deals with emploprynt discrimination.) relief.-

TEXTS OF REGULATIONS The Rehabilitation Act of 1973, laiive and administrative changes as it ,: necessary or as Amended desirable. The Civil Servicr Commission imely trans- mit to the appropriate committees cif Co:_ any such P.L. 93-112 as Amended by P.L. 93-516 recommendatins. "(b) Each department, agency, and instruril--.1;ty (in- (The following provisions of this Act specifically deal with cluding the United States Postal Service and Postal nondiscrimination in employment. The sentence in italics Rate Commission) in the executive branch shall, was added by the amendment.) one hundred and eighty days after the date of enact of this Act, submit to the Civil Service Commission arr.. SE( no7. For the purposes of the Act: to the Committee atIrmative action program plan the hiring, placerr.c. advancement of handica,, individuals in such a,- rnmt, arncy, or instrument -(b) The term 'handicapped individual' means any in- Such plan shall include r:ption of the extent to dividual who (A) has a physical or mental disability which and methods whereby ti.. .-ial needs of ham:ilea,- for such individual constitutes or results in a substantial employes are being mei. elan shall be updated handicap to employment and (B) can reasonably be ex- nually, and shall be review . y and approved by pected to benefit in terms of employability from vocational Commission, if the Commis,.... .1e,.2.-:mines, after consulta- rehabilitation servi,ies provided pursuant to titles I and III tion with the Committee. :n;c. . plan provides sufilc,ent of this Act. For the purposes of titles IV and V of this Act. assurances, procedures an such term means any person who (A) has a physical or -....,..inirrnents to provide ade- quate hiring, placement. :me. advancement opportunities mental impairment which substantially limits one or more for handicapped individuals. of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment. EMFLOYMENT UNDER FEDERAL CONTRACTS "SEC. 503. (a) Any contract in excess of $2,500 entersi TITLE V-MISCELLANEOUS into by any Federal department or agency for the procure- lent of personal property and nonpersonal services (in- EMPLOYMENT OF HANDICAPPED INDIVIDUALS cluding i:onstruction) for the United States ;hall contain a "SEC. 501. (a) There is established within the Federal provision requiring that. in employing persons to carry out Government an Interagency Committee on Handicapped such contr..,:t the party contracting with the United States Employees (hereinafter in this section referred to as the shall takeall': liative action to .zi.iploy and advance in 'Committee). comprised of such members as the President emploir'iznt handicapped individuals as defined may select, including the following (or their designees in section 7(6). The provisions of this section shall apply whose positions are Executive Level IV or higher): tlic ta ar,y ,rihcontract in Lsicess of $2.500 entered into by a Chairman of the Civil Service Commission. the Admini- prime contractor in cart yihg out any contract ff. r the pro- trator of Veterans' Affairs. and the Secretaries of Lin: curement of personal property and nonpersonai services and Health. Education. and Welfare. The Secretary of (including -onstruction) for the United States. The Presi- Health, Education, and Welfare and the Chairman of the dent shall implement the provisions of this section by Civil Service Commission shall serve as co-chairmen of the promulgating regulaticrwithin ninety days at:cur the date Committee. The resources of the President's Committees of enactment of this sect km. on Employment of the Handicapped and on Mental Retar- "(b)If any handicapped individr tlbelieves any dation shall he made fully available to the Committee. It tractor has failed or refused to comply with the provis:ons shall be the purpose and function of the Committee (1) to of his contract with the United States. relating to employ- provide afocus for Federal and other employment of ment of handicapped individuals, such individual may file a handicapped individuals, and to review, on a periodic basis. complaint with the Department of Labor. The Department in cooperation with the Civil Service Commission, the ade- shall promptly investigate such complaint and s`):111 take quacy of hiring, placement. and advancement practices such action thereon as the facts and circurr w, Arrant. with respect to handicapped individuals, by each depart- consistent with the terms of such contract and the laws ,t-d ment. agency. and instrumentality in the executive branch regulations applicable ttrreto. of Government. and to insure that the special needs of such "(e) The requirements of this section may be waived. individuals are being met: and (2) to consulwith the in whole or in part, by the President with respectL) a Civil Service Commission toassistthe Commission to particular contractor subcontract.inaccordance with carry out itsresponsibilities under subsections (h). (e). guidelines set forth in regulations which he shall prescrib.: and (d )of this section. On the basis of such review and when he determines that special circumstances in the rii,- consultation, the Committee shall periodically make to the tional interest so require and states in writing his reasons Civil Service Commission such recommendations for legis- for such determination.

84 THE CONFERENCE BOARD NONDISCRIMINATION UNDER Fl.DERAL GRANTS nomically disadvantaged, unemployed, or underemployed "SEC. 504. No ot',erwise qualified handicapped individ- persons in the area it :ores;" ual in the United States, as defined in section 7(6), shall, solely by reason of his handicap. be excluded from thepar- ticipation in, be denied the benefits of, or be subjected to -IT1he Secretary shall revoke the grime sponsor's plan for discrimination under any program or activityreceiving the area, in whole Jr ir. part. and to the extent necessary and Federal financial assistance." appropriate shall not make any further payments to such prime sponsor under this At. :, and he shall notify such sponsor to return to him all or part of the unexpended sums The Comprehensive Employment and paid under this Act during that fi..ca: year. Training Act of 1973, P.L. 93-203 TITLE II-PUBLIC EMPLOYMENT (The following provisions of this Act specifically relateto nondiscrimination in employment.) PROGRAMS "SEC. 208. TITLE 1COMPREHENSIVE MANPOWER "(f) The Secretary shallnot provide financialassist- SERVICES ance for any program under thistitleunless the grant, contract, or agreement with "SE( .108. respe,-1thereto "pecifically provides that no persons witn responsibilities in the ( ) The Secretary shall not filially' disapprove any opera- tion of such program will discrimio.ate with respect to comorehensive inanpower plan submitted under this title, any program participant or any appfcant lc, p(-Tticipation in or any moOtfications thereof, withoutfirstaffording the prime sponsor submitting the plan reasonable notice and such program because of race, erred, color, na, nnal origin, opportunity for a hearing. sex. political affiliation, or beliefs. "(g) The Secretary shall not provitli., financi I assistance -12) Itthe Secretary receives a formal allegation from an affected unit of general local government that a prime for any program tinder this title wt.h s rtlitical sponsor has changed its comprehensive manpower plan so activities: and neither the program, the funds provided that it no longer complies with section 105 or that in the therefor, nor personnel employed in administrating administration of the plan there is a failure to comply sub- thereof, shall he, in any way or to my extent, engaged in stantially with any such provision, with any provision of the conduct of political activities in contraventirl of chap- ter 15 of title 5. United States Code. the plan, or with any requirements of section 603 or 604, he .hall, and, if he receives such an allegation from any other interested person, he may. or, if such allegation is sup- TITLE VIGENERAL PrVISIONS ported by substantial evidence, he shall, after due notice and CONDITIONS APPLICABLE TO ALI. opportunity for a hearing to the prime sponsor, determine PROGRAMS whether the allegationistrue.If he determines such an alleption to he true, the Secretary shall notify the prime "SEC'. 603. The Secretary shall not pro v; fin:tidal as- or that no further payments will be made to the sistance for any program under thi't, Act unle ,nc sponsor under the plan (or, in his discretion, that (1) the grant, contract, or agre,ment with respect further payments will he limited to programs underor thereto specifically provides that no person withrespon- portions of the plan not affected by such failure), until sibilities in the operation of such program will dis :rimi- he is satisfied that !here will no longer heany failure to nate with respect to any program vrti.apant or any ap- comply. Until he is so satisfied. the Secretary shall make no plicantfor participationin such program because of further payments to such sponsor under the plan (or shall race, creed. color. national origin, sex, politic .t'affilia- 1:mit payments to programs under the plan not affected by tion. or beliefs the failure). ( c l The Secretary shall not disapprove any plan solely because of the pereitnia.t(e of funds devoted to a particular NONDISCRIMINATION program or activity authorized under section 101 of this "Sec, 612. (a) No person in the United States shallon Act. the ground of race, color, national origin, orsex he ex- "(d` Whenever the Secretary determines, after notice cluded from participation in, he denied the benefits of,or and opportunity for a public hearing, that any prime spon- he subjected to discrimination under any program orac- sor designated to serve under this Act is tivity funded in whole or in part with funds made available "( 1) maintaining a pattern or practice of discrimina- under this Act. tion in violation of section 603( I) or section 612(a1 of "(b) Whenever the Secretary determines thata prime this Act or otherwise tailing to serve equitably theeco- sponsor or eligi; c applicant has failed to comply with

TEXTS OF REGULATIONS 85 subsection (a) or an applicable regulation. he shall notify with other than a dishonorable discharge. or (ii) was dis- the prime sponsor :va eligible applicant of the noncon.dli- charged or released from active duty for a service-connect- ance and %ball request the prime sponsor or eligible appli- ed disability if any part of such active duty was performed cant to:.:;:tire compliff3cc. If within a reasonable period of during the Vietnam era, and (13) who was so discharged time. not to exceed sixtydays, the prime sponsor or or released within the 4S months preceding his application eligible applicant fails t-ar refuses to secure compliance, the for employment covered under this chapter. Secretary. in ;,ddit;on to exercising the powers and func- "(3) The term 'department and agency' means any de- tions provided for the termination of financial assistance partment or agency of the Federal Government or any under this Act is authorized (1) to refer the matter to federally owned corporation." the A:torney General with a recommendation that an appropriate civil action he instituted;(2)to exercise the § 2012. Veterans' employment emphasis under Federal pov4cf,. and .-unctions provided by title VI of the Civil contracts. Rights Act n' 1964 (42 U.S.C. 2000d): or(3)to take "(a) Any contract in the amount of $10,000 or more en- such ether at t,on as may he provided by tered into by any department or agency for the procure- "(e) Whe..t a matter is referred to the Attorney General ment of personal property and non-personal services (in- pursuant toubsection (h ). or whenever he has reason to chiding construction) for the United States, shall contain believe th a prime sponsor or eligible applicant is engaged a provision requiring that the party contracting with the in a pattern or practice in violation of the provisions of this United States shall take affirmative action to employ and section. the Attorney General may bring a civil action in advance in employment qualified disabled veterans and vet- any ..ppropriate United States district court for such relief erans of the Vietnam era. The provisions of this section as he appropriate, including injunctive relief. shall apply to any subcontract entered into by a prime con; "(d) The Secretary shall enforce the provisions of sub- tractor in carrying out any contract for the procurement section (a) dealing with discrimination on the basis of sex of personal property and non-personal services (including in ;accordance with section602of the Civil Rights Act of construction) for the United States. In addition to requir- 9('1-. Section603of such Act shall apply with respect to ing affirmative action to employ such veterans under such any action taken by the Secretary to enforce such provi- contracts and subcontracts and in order to promote the sions of such subsection. This section shall not he construed implementation of such requirement, the President shall a affecting any other legal remedy that a person may implement the provisions of this section by promulgating hr aaeif that person is excluded from participation in. de- regulations within60days after the date of enactment of nied the benefits of. subjected to discrimination under. or this section, which regulations shall require that( 1 ) each .tenied employment in connection with any program or ac- such contractor undertake in such contracts to list immedi- tivity receiving assistance under this Act." ately with the appropriate local employment service office all of its suitable employment openings, and(2)each such local office shall give such veterans priority in referral to Vietnam-Era Veterans' Readjustment such employment openings. Assistance Act of 1974, P.L. 93-508 "(b) If any disabled veteran or veteran of the Vietnam era believes any contractor has failed or refuses to comply (The Act amended Chapter 42 of Title .;8 of the U.S. with the provisions of his contract with the United States. Code. dealing with the employment and training of dis- relating to the employment of veterans, such veteran may abled and Virtnam-era veterans. The following provisions, file a complaint with the Veterans' Employment Service of as amended. are relevant to the affirmative action obliga- the Department of Labor. Such complaint shall he prompt- tionsoffederalcontractors and Federal Govcrnment ly referred to the Secretary who shall promptly investigate agencies.) such complaint and shall take such action thereon as the facts and circumstances warrant consistent with the terms fi 2011. Definitions. of such contract and the laws and regulations applicable ".-Nsused in this chapter thereto...." "( I) The term 'disabled veteran' means a person entitled ti' disability compensation tinder laws administered by the Veterans' Administration for a disability rated at30per 2014. Employment within the Federal Government centum or more, or a person whose discharge or release "(a)Itis the policy of the United States and the pur- from active duty was for a disability incurred or aggra- pose of this section to promote the maxi MUM of employ- vated in line of duty. ment and job advancement opportunities within the Fed- "(2)The term 'veteran of the N'let 111 era' means a end Government for qualified disabled veterans and vet-

person (A ) who (i) served on active duty for a period of erans of the Vietnam era. more than1,,0 days. any part of which occurred during "(I)) To further this policy. veterans of the Vietnam era the Vietnam era. and was discharged or released therefrom shall he eligible. in accordance with regulations which the

86 THE CONFERENCE BOARD r, t./ (.1 Civil Service Commission shall prescribe, for veterans re- Executive Order 11478 adjustment appointments up to and including the GS-5, as specified in subchapter 11 of chapter 51 of title 5, con- Text of Executive Order 11478, signed by President ditions specified in Executive Order Number 11521 (March Nixon August 8, 1969, prohibiting discrimination in fed- 26, 1970), except that in applying the one-year period of eral employment on account of race, color, religion, sex, or eligibility specifiedinsection 2(a) of such order to a national origin. These provisions supersede Part 1 of Exec- veteran or disabled veteran who enrolls, within one year utive Order 11246, as amended by Executive Order 11375. following separation from the Armed Forces or following releasefromhospitalizationortreatmentimmediately EQUAL EMPLOYMENT OPPORTUNITY following separation from the Armed Forces. in a program of education (as defined in section 1652 of this title) on H, THE FEDERAL GOVERNMENT more than a half-time basis (as defined in section 1788 of It has long been the policy of the United States Govern- this title), the time spent in such program of education (in- ment to provide equal opportunity in Federal employment cluding customary periods of vacation and permissible ab- on the basis of merit and fitness and without discrimination sences) shall not he counted. The eligibility of such a vet- because of race, color, religion, sex, or national origin. All eran for a readjustment appointment shall continue for not recent Presidents have fully supported this policy, and have less than six months after such veteran first ceases to he directed department and agency heads to adopt measures to enrolled therein on more than a halftime basis. No vet- make it a reality. erans' readjustment appointment may he made under au- As a result, much has been accomplished through posi- thority of this subsection after June 30, 1978. tive agency programs to assure equality of opportunity. "(c) Each department, agency, and instrumentality in Additional steps, however, arecalledfor the executive branch shall include in its affirmative action inorder to strengthen and assure fully equal employment opportunity plan for the hiring, placement, and advancement of handi- in the Federal Government. capped individuals in such department. agency, or instru- mentality as required by section 501(b) of Public Law NOW, THEREFORE, tinder and by virtue of the au- thority vested in me as President of United States by the 93-112 (87 Stat. 391), a separate specification of plans (in Constitution and statutes of the United States, it is ordered accordance with regulations which the Civil Service Com- as follows: mission shall prescribe in isultation with the Administra- tor, the Secretary of Labor, and the Secietary of Health, Section1.Itis the policy of the Government of the Edification, and Welfare, consistent with the purposes, pro- United Statesto provide equal opportunityinFederal visions, and priorities of such Act) to promote and carry employment for all persons, to prohibit discrimination in out such affirmative action with respect to disabled veterans employment because of race, color, religion, sex, or na- in order to achieve the purpose of this section. tional origin, and to promote the full real.zation of equal "(d) The Civil Service Commission shall be responsible employment opportunity through a inuing affirmative for the review and evaluation of the implementation of this program in each executive department and a,tency. This section and the activities of each such department, agency, policy of equal opportunity applies to and must an inte- and instrumentality to carry out the purpose and provisions gral part of every aspc:t of personnel 'Ley and practice of this section. The Commission shall periodically obtain in the employment, development, advan. ,.!ment, and treat- and publish (on at least a semiannual basis) reports on mi:nt of civilian employees of the Federal Government. such implementation and activities from each such de- Section 2. The head of each executive department at partment. agency, and instrumentality, including specifica- agency shall establish and maintain an affirmative pro- tion of the use and extent of appointments made under gram of equal employment opportunity forallcivilian subsection (h) of this section and the results of the plans employees and applicants for employment within his juris- required under subsection (c) thereof. diction in accordance with the policy set forth in section 1. "(e) The Civil Service Commission shall submit to the It is the responsibility of each department and agency head, Congress annually a report on activities carried out under to the maximum extent possible, to provide sufficient re- this section, except that, with respect to subsection (c) of sources to a.!minister such a program in a positive and this section, the Commission may include a report of such effective manner; assure that recruitment activities reach ..ctivities separately in the report required to he submitted all sources of job candidates; utilize to the fullest extent by section 501(d) of such Public Law 93-112, regarding the prese, of each employee; provide the maximum the employment of handicapped individuals by each de- feasible or)rtunity to employees to enhance their partment, agency. and instrumentality. so they may perform at their highest potential and advance "(1) Notwithstanding section 2011 of this title, the terms in accordance with their abilities; provide training and ad- 'veteran' and 'disahled veteran' as used in this section shall vice to managt N and supervisors to assure their under- have the meaning provided for under generally applicable standing and implementation of the policy expressed in civil service law and regulations." this Order: assure participationatthelocallevel with

TEXTS OF REGULATIONS 87 9 other employers, schools, and public or privategroups in cooperative efforts to improve community conditions OFCC Affirmative Action Guidelines affect employability; and provide for a system within the Following is department or agency for periodically evaluating the effec- the full text of Revised Order No. 4, tiveness with the policy of this Order is being carried Affirmative Action Guidelines, issued by the Office of Fed- 'ral Contract Compliance, September 30, 1972, andcover- ing federal contractors and subcontractors. !I readsas last Section 3. The Civil Service Commission shall provide amended. effective July 12, 1974. leadership and guidance to departments and agencies in the conduct of equal employment opportunity programs for Chapter 60011ice of Federal Contract Compliance, the civilian employees of and applicants for unployment Equal Employment Opportunity, Department of Labor within the executive departments and agencies in orderto assure that personnel operations in Government depart- ments and agencies carry out the objective of equalop- PART 60-2AFFIRMATIVE ACTION portunity for all persons. The Conunis.sion shall review PROGRAMS and evaluate agency program operations periodically, ob- tain such reports from departments and agenciesasit Pursuant to Executive Order 11246, sections 201, 205, deems necessary, and report to the Presidentas appropriate 211 (30 F.R., 12319). and 41 CFR 60-1.6, 60-1.28, on overall progress. The Commission will consult from 60-1.29. 60-1.40, Title 41 of the Code of Federal Reg- time to time with such individuals. groups,or organizations ulations is hereby amended by adding a new Part 60-2 to as may he of assistance in improving the Federal program read as set forth below. and realizing the objectives of this Order. Subpart AGeneral Section 4. The Civil Service Commission shall provide Sec. fortheprompt, fair, and impartial consideration of all 60-2.1Title, purpose and scope. complaints of discrimination in Federal employmenton the 60-2.2Agency action. basis of race. color, religion, ;ex, or national origin. Agency systems shall provide access to counseling for employees Subpart HRequired Contents of Affirmative Action Programs who feel aggrieved and shall encourage the resolution of employee problems on an informal basis. Procedures for 60-2.10 Purpose of affirmative action program. the consideration of complaints shall includeat least one 60-2.11 Required utilization analysis. impartial review within the executive departmentor agency 60,-2.12 Establishment of goals and timetables. and shall provide for appeal to the Civil Service Commis- 60-2.13 Additional required ingredients of affirmative action sion. programs. 60-2.14 Compliance status. Section 5. The Civil Service Commission shall issue such regulations, orders, and instructions as it deemsnecessary Subpart CMethods of Implementing the ;111d appropriate to carry out this Order andassure that the Requirements of Subpart It executive branch of the Government leads theway as an equal opportunity employer. and the head of ea,:hexecu- 60.-2.20 Development or reaffirmation of the equal employ- tive department and agency shall comply with the regula- ment opportunity policy. tions, orders. and instructions issued by the Commission 60- -2.21 Dissemination of the policy. under this Order. 60-2.22 Responsibility for implementation. 60-2.23 Identification of problem areas by organization unit Section 6. -This Order applies (a) to military departments and job classification. as defined in section 102 of title 5. United States Code, and nu -2.24 Development and execution of programs. executive agencie;other than the General Accounting Of- 60-2.25 Internal audit and reporting systems. 1i..el as detine(: nr ,:ect ion 105 of title 5. United States Code, 60-2.26 Support of action programs. and to the employees thereof (including employees paid from nonappropriated funds), and (h Ito those portions Subpart I) -N1iscellaneous of the legislative and judicial hranches of the Federal Gov- 60 --2.10 Use of goals. ernment and of the Government of the District of Colum- 60-2.31 Preemption. hia having positions in the competitive service and to the 60--2.32 Supersedure. At'inonri X': The provisions of this Part 60 employees in those positions. This Order does not applyto - -2 issued pur- aliens employed outside the limits of the United, States. suant to sec. 201, Executive Order 11246 (30 F.R. 12319). Section 7. PartI of Executive Order No. 11246 of Sep- Subpart A --General tember 24. 1965, and those parts of Fsecutive Order No. 60-2.1 Title, purpose and scope. 11375 of October 13. 1967, which apply to Federalem- This part shall also he known as "Revised Order No. 4.- ployment. are hereby superseded. and shall cover non-construction contractors. Section 60-

88 THE CONFERENCE BOARD 9 E40 of this Chapter, Affirmative Action Compliance Pro- such an approved affirmative action plan, the contracting grams, requires that within 120 days from the commence- officer shall notify the Director and declare the contractor- ment of a contract each prime contractor or subcontractor bidder nonresponsible unless he can otherwise affirmatively with 50 or more employees and a contract of $50,000or determine that the contractor is able to comply with his more develop a written affirmative action compliance pro- equal employment obligations or, unless, upon review,it gram for each of its establishments, and such contractors is determined by the Director that substantial issues of law are now further required to revise existing written affirma- or factexist as to the contractor's responsibility to the tive action programs to include the changes embodied in extent that a hearing is, in his sok judgment, required prior this order within 120 days of its publication in the FEDERAL to a determination that the contractor is nonresponsible: REGISTER. A review of agency compliance surveys indicates Provided. That during any pre-award conferencesevery that many contractors do not have affirmative actionpro- effort shall he made through the processes of conciliation, grams on file at the time an establishment is visited by a mediation and persuasion to develop an acceptable affirma- compliance investigator. This part details the agency review tive action program meeting the standards and guidelines procedure and the results of a contractor's failure to de- set forth in §§ 60-2.10 through 60-2.32 so that,in the velop and maintain an affirmative action program and then performance of his contract, the contractor is able to meet set forth detailed guidelines to he used by contractors and his equal employment obligations in accordance with the Government agencies in developing and judging thesepro- equal opportunity clause and applicable rules, regulations, grams as well as the good faith effort required to transform , and orders: Provided further, That when the contractor- the programs from paper commitments to equal employ- bidder is declared nonresponsible more than once for in- ment opportunity. Subparts B and C are concerned with ability to comply with the equal employment opportunity affirmative action plans only. clause a notice setting a timely hearing date shall he issued Relief for members of an "affected class" who, by vir- concurrently with the second nonresponsibility determina- tue of past discrimination, continue to suffer the present tion in accordance with the provisions of § 60-1.26propos- effects of that discrimination shall he provided in thecon- ing to declare such cowl-actor-bidder ineligible for future ciliation agreement entered into pursuant to § 60-60.6 of contracts and subcontracts. this title. An "affected class" problem must he remedied in (c) Immediately upon finding that a contractor has no order for a contractor to he considered in compliance. Sec- affirmative action program or has substantially deviated tion 60-2.2 herein pertaining to an acceptable affirmative from such an approved affirmative action plan thathis action program is also applicable to the failure to remedy program isnot acceptable to the contracting officer, the discrimination against members of an "affected class." compliance agency representative or the representative of the Office of Federal Contract Compliance, whichever has § 60-2.2Agency action. made such a finding, shall notify officials of the appropriate (a) Any contractor required by § 60-1.40 of this chapter compliance agency and the Office of Federal Contract to develop an affirmative action program at each of his Compliance of such fact. The compliance agency shall issue establishments who has not complied fully with that sec- a notice to the contractor giving him 30 days to show cause tion is not in compliance with Executive Order 11246, as why enforcement proceedings under section 209(h) of Ex- amended (30 F.R. 12319). Until such programs are devel- ecutive Order 11246, as amended, should not he instituted. oped and found to he acceptable in accordance with the (I)If the contractor fails to show good cause for his standards and guidelines set forth in §§ 60-2.10 through failure or fails to rem_ 'v that failure by developing and 60-2.32, the contractor is unahle to comply with the equal implementing an acceptable affirmative action program employment opportunity clause. An affirmative plan shall within 30 days, the compliance agency, upon the approval he deemed to have been accepted by the government at the of the Director, shall immediately issue a notice of pro- time (the) appropriate compliance agency has accepted posed cancellation or termination of existing contracts or such plan unless within 45 days thereafter the Office of subcontracts and debarment from future contracts and Federal Contract Compliance has disapproved such plan. subcontracts pursuant to § 60- 1.26(h), giving the contrac- (2) The appropriate compliance agency shall notify the tor 14 days to request a hearing. If a request for hearing contractor and the Office of Federal Contract Compliance has not been received within 14 days from such notice, when it has accepted an affirmative action plan. such contractor will he declared ineligible for future con- tracts and current contracts will he terminated for default. (h)If,in determining such contractor's responsibility (2) During the "show cause" period of 30 days every for an award of a contract it comes to the contracting of- effort shall be made by the compliance agency through ficer'sattention, through sources within his agency or conciliation, mediation, and persuasion to resolve the defi- through the Office of Federal Contract Compliance or ciencies which led to the determination of nonresponsi- other Government agencies, that the contractor has not de- hility.If satisfactory adjustments designed to bring the veloped an acceptable affirmative action program at each contractor into compliance are not concluded, the com- of his establishments. or has substantially deviated from pliance agency, with the prior approval of the Director,

TEXTS OF REGULATIONS 89

(9 shall promptly commence formal proceedings leadingto indicated the order of jobs in the line through whichan the cancellation or termination of existing contractsor employee could move to the top of the line. Where there subcontracts and debarment from future contracts and are no formal progression lines or usual promotional se- subcontracts under § 60-1.26(b) of this chapter. quences, job titles should be listed by department, job fam- (d )During the "show cause" period and formal pro- ilies, or disciplines, in order of wage ratesor salary ranges. ceedings. each contracting agency must continue to deter- For each job title the total number of male and female mine the contractor's responsibility in considering whether incumbents, and the total number of male and female in- or not to award a new or additional contract. (As last cumbents in each of the following groups must he given: amended. and effective Jan. 31. 1973.) Blacks, Spanish-surnamed Americans, American Indians, and Orientals. The wage rate or salary range for each job Subpart BRequired Contents of Affirmative Action Programs title should be given. All jobs, including all managerial job classifications, must he listed. § 60-2.10Purpose of affirmative action program. (b) An analysis of all major job groups at the facility, An affirmative action program is a set of specific and with explanation if minorities or womenare currently be- result-oriented procedures to which a contractor commits ing underutilized in any one or more jobgroups (job himself to apply every good faith effort. The objective of "groups" herein meaning one or a group of jobs having those procedures plus such efforts is equal employment op- similar content, wage rates and opportunities). "Under- portunity. Procedures without effort to make them work utilization" is defined as having fewer minorities or women are meaningless: and effort, undirected by specific and in a particular job group than would reasonably he expect- meaningful procedures. is inadequate. An acceptable affirm- ed by their availability. In making the utilization analysis, ative action program must include an analysis ofareas the contractor shall conduct such analysis separately for within which the contractor is deficient in the utilization minorities and women. of minority groups and women, and further, goals and (1) In determining whether minorities are being under- timetahles to which the contractor's good faith efforts must utilized in any job group the contractor will consider at he directed to correct the deficiencies and, thus to achie.,e least all ^r tlw following factors: prompt and full utilization of minorities and warner.. at (i) The minority population of the labor area surround- all levels and in all segments of his work force whex de- ing the facility: ficiencies exist. (ii) The size of the minority unemployment force in the labor area surrrounding the facility: § 60-2.11Required utilization analysis. (iii) The percentage of the minority work forceas Based upon the Clovernment's experience .vith compli- compared with the total work force in the immediate labor ance reviews under the Executive orderrograms and area: the contractor reporting system, minority f oupsare most likely to he underutilized in departments and jobs within (iv) The general availability of minorities having requi- site skills in the immediate labor area departments that fall within the follow:ig Employer's In- formation Report (FE0-1) designation.: officials and man- (v) The availability of minorities having requisite skills agers, professionals, technicians, sale. workers. office and in an area in which the contractor can reasonably recruit: clerical and craftsmen (skilled). A. categorized by the (vi) The availability of promotahle and transferable EEO -1 designations, women are likely to he underutilized minorities within the contractor's organization: in departments and johs within ei:partments as follows: (vii) )The existence of training institutions capable of officialsandmanagers,professio tals,technicians,sales training persons in the requisite skills: and workers (except over- the- countersalesincertainretail (viii) The degree of training which the contractor is estahlishments I.craftsmen(shIled andsemi-skilled), reasonahly able to undertake as a means of making all joh Therefore. the contractor shall direct special attention to classes availahle to minorities. such jobs in his analysis and goal setting for minorities and (2)In determining whether women are heing under- women. Affirmative action progr.ims must contain the fol- utilized in any joh group the contractor will consider at lowing information: least all of the following factors: (a ) Workforce analysis whichs defined as a listing of each joh title as appears in applicaile collective hargaining (i 1 The size of the female unemployment force in the agreements or payroll records (not job group) ranked from labor area surrounding the facility: the lowest paid to the highest paid within each department (ii) The percentage of the female workforce as compared or other similar organizmional unit inc:nding departmental with the total workforce in the immediate lahorarea: or unit supervision.If there are separa'e work units or ( ) The general availability of women having requisite lines of progression within a department a separatelist skills in the immediate labor area: must he provided for each such work unit. of line, includ- I iv) The availability of women having requisite skills in ing unit supervisors. For lines of progression there must he an area in which the contractor can reasonably recruit:

90 THE CONFERENCE BOARD

9 (v) The availahility of women seeking employment in group and may further require, where appropriate, such the labor or recruitment area of the contractor; goals and timetables hy sex for such group for such joh (vi) The availahility of promotahle and transferahle classifications and organizationalunits specified by the female employees within the contractor's organization; compliance agency or OFCC. (vii) The existence of training institutions capahle of (I) Support data for the required analysis andprogram training persons in the requisite skills; and shall be compiled and maintainedas part of the contrac- (viii) The degree of training which thecontractor is tor's affirmative action program. This data will include but reasonahly ahle to undertake as a means of making alljoh not he limited to progression line charts, seniority rosters, classes available to women. applicant flow data, and applicant rejection ratios indicat- ing minority and sex status. 60-2.12 Establishment of goals and timetables. (m) Copies of affirmative action programs and/or copies (a) The goals and timetahles developed hy thecontrac- of support data shall he made availahle to the compliance tor should he attainahle in terms of the contractor's analysis agency or the Office of Federal Contract Compliance, at of his deficiencies and his entire affirmative action program. the request of either, for such purposesas may he appro- Thus, in estahlishing the size of his goals and the lengthof priate to the fulfillment of their responsihilities under Exec- his timetables, the contractor should consider theresults utive Order 11246, as amended. which could reasonahly he expected from his puttingforth every good faith effort to make his overall affirmativeac- § 60-2.13Additional required ingredients of affirmative tion program work. In determining levels of goals.the con- action programs. tractor should consider at least the factors listed in§ 60- Effective affirmative action programs shall contain, but 2.11. necessarily he limited to, the following ingredients: (b) Involve personnel relations staff, departmentand di- (a) Development or reaffirmation of the contractor's vision heads, and local and unit managers in the goal setting equal employment opportunitypolicyinallpersonnel process. actions. (c) Goals should he significant, measurahle and attain- (h) Formal internal and external dissemination of the ahle. t. tractor's policy. (d) Goals should he specific for planned results. with c) Establishment of responsihilities for implementation timetables for cornpletior,. of the contractor's affirmative actionprogram. (e) Goals may not he rigid and inflexihle quotas which (d) Identification of problem areas (deficiencies) byor- must he met, but must he targets reasonably attainable hy ganizational units and oh group. means of applying every good faith effortto make all (e) Estahlishment of goals and ohjectives by organiza- aspects of the entire affirmative action program work. tional units and joh groups, inch .ling timetahles forcom- (f) In estahlishing timetables to meet goals and commit. pletion. merts, the contractor will consider the anticipated expan- (f) Developmew and execution or action orientedpro- sion, contraction and turnover of and in the worktorce. grams designed tc Jiminate problems and further designed (g) Goals, timetahles and affirmative action commit- to at ain estahlished goals and objectives. ments must he designed to correct any identifiable deficien- Design and implementation of internal audit and cies. reporting systems to measure effectiveness of the totalpro- (h ) Where deficiencies exist and where numbersor per- 1. centages are relevant in developing corrective actionthe (h) Compliance or personnel policies and practices with contractor shall estahlish and set forth specific goals an:: the Sex Discrimination Guidelines (41 CFR Part 60-20). timetahles separately for minorities and women. (1) Active support of local and national communityac- (i ) Such goals and timetahles, ,vith supporting data and tion programs and community serviceprograms, designed the analysis thereof shall he a pan of the contractor's writ- improve the employment opportunities of minorities and ten affirmative action program and shad he maint,inedat women. each estahlishrnent of the contractor, (j) Consideration of minorities and women not currently (j) Where the contractor has not estahlisheda goal, his in the workforce having requisite skills who.;an be re- written affirmative action program must specifically analyze cruited through affirmative action measures. each of the factors listed in 60-2.11 and must detail his reason for a lack of a goal. fi60-2.14Compliance status. (k) In the event it conies to the attention of thecom- No contractor's compliance status shall he judged alone pliance agency or the Office of Federal Contract Com- hy whether or not he reaches his goals and meet; his time- pliance that there is a substantial disparity in ',he utilization tables. Rather, each .:::,;tractor's compliance posture shall of a particular minority group or men orwomen of a he reviewed and deteri:Tned hy reviewing the contents of particular minority group. the compliance agency or OFCC his program. the extend of his adherence to thisprogram, may require separate goals and timetable! for such minority and his good faith eff-rrts to make his program work toward

i S OF REGULATIONS 91 the realization of the program's goals within the timetables reports, promotions, etc., of minority and female employ- set for completion. There follows an outline of examples ees, in company publications. of procedures that contractors and Federal agencies should (9)Post the policy on company bulletin boards. use as a guideline for establishing, implementing, and judg- (10) When employees are featured in product or con.. ing an acceptable affirmative action program. sumer advertising, employee handbooks or similar publica- tions both minority and nonminority, men and women Subpart CNiethods of Implementing the Requirements of should be pictured. Subpart B (11) Communicate to employees the existence of the 60-2.20Development or reaffirmation of the equal em- contractor's affirmative action program and make avail- ployment opportunity policy. able such elements of his program as will enable such (a) The contractor's policy statement should indicate the employees to know of and avail themselves of its benefits. chief executive officer's attitude on the subject matter, as- (b) The contractor should disseminate his policy extern- sign overall responsibility and provide for a reporting and ally as follows: ni-nitoring procedure.Specificitemstohe mentioned (1) Inform all recruiting sources verbally and in writing should include, but not limited to: of company policy, stipulating that these sources actively recruit and refer minorities and women for all positions (1) Recruit, hire, train, and promote persons in all job listed. groups, without regard to race, color, religion, sex, or na- (2) Incorporate the Equal Opportunity clauseinall tional origin, except where sex is a bona fide occupational purchase orders, leases, contracts, etc., covered by Execu- qualification. (The term -bona fide occupational qualifica- tive Order11246,as amended and its implementing regu- tion" has been construed very narrowly under the Civil lations. Rights Act of1964.Under Executive Order11246as (3) Notify minority and women's organizations, com- amended and this part, this term will he construed in the munity agencies, community leaders, secondary schools same manner.) and colleges, of company policy, preferably in writing. (2) Base decisions on employment so as to further the (4)Communicate to prospective employees the existence principle of equal employment opportunity. of the contractor's affirmative action program and make (3) Insure that promotion decisions are in accord with available such elements of his program as will enable such principles of equal employment opportunity by imposing prospective employees to know of and avail themselves of only valid requirements for promotional opportunities. its benefits. (4) Insure that all personnel actions such as compensa- (5) When employees are pictured in consumer or help tion, benefits, transfers, layoffs, return from layoff, com- wanted advertising, both minorities and nonminority men pany sponsored training, education, tuition assistance, so- and women should he shown. cial and recreation programs. will he administered without (6) Send written notification of company policy to all regard to race, color, religion, sex, or national origin. subcontractors, vendors and suppliers requesting appropri- ate action on their part. § 69-2.21Dissemination of the policy. (a) The contractor should disseminate his policy in- ti60-2.22Responsibility for implementation. ternally as follows: (a) An executive of the contractor should be appointed 111 Include it in contractor's policy manual. as director or manager of company Equal Opportunity (2) Publicize itin company newspaper, magazine, an- Programs. Depending upon the size and geographical align- nual report and other media. ment of the company, this may he his or her sole responsi- (3) Conduct special meetings with executive, manage- bility. He or she should he given the necessary top manage- ment, and supervisory personnel to explain intent of policy ment support and staffing to execute the assignment. His or and individual responsibility for effective implementation, her identity should appear on all internal and external com- making clear the chief executive officer's attitude. munications on the company's Equal Opportunity Pro- (4) Schedule special meetings witti all other employees grams. His or her responsibilities should include, but not to discuss policy and explain individual employee responsi- necessarily he limited to: bilities. (1) Developing policy statements, affirmative action pro- (5)Discuss the policy thoroughly inboth employee grams, internal and external communication techniques. orientation and management training programs. (2) Assistinc in the identification of problem areas. (6) Meet with union officials to inform them of policy. (3) Assisting line management in arriving at solutions to and request their cooperation. problems. (7) Include nondiscrimination clauses in all union agree- ( 4)Designing and implementing audit and reporting ments, and review all contractual provisions to ensure they systems that will: Are nondiscriminatory. (i) Measure effectiveness of the contractor's programs. (8) Publish articles covering EEO programs, progress (ii) Indicate need for remedial action.

92 THE CONFERENCE BOARD (iii) Determine the degree to which the contractor's goals (1) Composition of the work force by minority group and objectives have been attained. status and sex. (5) Serve as liaison between the contractor and enforce- (2) Composition of applicant flow by minority group ment agencies. status and sex. (6) Serve as liaison between the contractor and minority (3) The total selection process including position de- organizations, women's organizations and community ac- scriptions, position titles. worker specifications, application tion groups concerned with employment opportunities of forms, interview procedures, test administration, test valid- minorities and women. ity, referral procedures, final selection process, and similar factors. (7)Keep management informed oflatestdevelop- (4) Transfer and promotion practices. ments in the entire equal opportunity area. (5) Facilities, company sponsored recreation and social (b) Line responsibilities should include, but not be events, and special programs such as educational assistance. limited to, the following: (6) Seniority practices and seniority provisions of union (1) Assistance in the identification of problem areas and contracts. establishment of local and unit goals and objectives. (7) Apprenticeship programs. (2) Active involvement with local minority organiza- (8) All company training programs, formal and in- tions, women's organizations, community action groups and formal. community service programs. (9) Work force attitude. (3) Periodic audit of training programs, hiring and pro- (10) Technical phases of compliance, such as poster and motion patterns to remove impediments to the attainment notification to labor unions, retention of applications, noti- of goals and objectives. fication to subcontractors, etc. (4) Regular discussions with local managers, supervisors (b) If any of the following items are found in the anal- and employees to be certain the contractor's policies are ysis, special corrective action should be appropriate. being followed. ( I ) An "underutilization" of minorities or women in specific job groups. (5) Review of the qualifications of all employees to in- (2) Lateral and/or vertical movement of minority or sure that minorities and women are given full opportunities female employees occurring at a lesser rate (compared to for transfers and promotions. work force mix) than that of nonminority or male em- (6) Career counseling for all employees. ployees. (7) Periodic audit to insure that each location is in com- (3) The selection process eliminates a significantly high- pliance in areas such as: er percentage of minorities or women than nonminorities (i) Posters are properly displayed. or men. (ii) All facilities, including company housing, which the (4) Application and related preemployment forms not contractor maintains for the use and benefit of his em- in compliance with Federal legislation. ployees, are in fact desegregated, both in policy and use. (5) Position descriptions inaccurate in relation to actual If the contractor provides facilities such as dormitories, functions and duties. locker rooms and rest rooms, they must be comparable for (6) Tests and other selection techniques not validated as both sexes. required by the OFCC Order on Employee Testing and (iii) Minority and female employees are afforded a full other Selection Procedures. opportunity and are encouraged to participate in all com- (7) Test forms not validated by location, work per- pany sponsored educational, training, recreational and so- formance and inclusion of minorities and women in sample. cial activities. (8) Referral ratio of minorities or women to the hiring (8) Supervisors should he made to understand that their supervisor or manager indicates a significantly higher per- work performance is being evaluated on the basis of their centage are being rejected as compared to nonminority and equal employment opportunity efforts and results, as well male applicants. as other criteria. (9) Minorities or women are excluded from or are not (9) It shall be a responsibility of supervisors to take ac- participating in company sponsored activities or programs. tions to prevent harassment of employees placed through (10) De facto segregation still exists at some facilities. affirmative action efforts. (11) Seniority provisions contribute to overt or inad- vertent discrimination, i.e., a disparity by minority group ti 60-2.23Identification of problem areas by organiza- status or sex exists between length of service and types of tional units and job groups. job held. (a) An in-depth analysis of the following should he (12) Nonsupport of company policy by managers, su- made, paying particular attention to trainees and those pervisors or employees. categories listed in § 60-2.11(d). (13) Minorities or women underutilized or significantly

TEXTS OF REGULATIONS 93 9 ! underrepresented in training or career improvementpro- women exists, the contractor should analyze his unscored grams. procedures and eliminate them if they are not objectively (14) No formal techniques established for evaluating valid. effectiveness of EEO programs. (e) Suggested techniques to improve recruitment and (15) Lack of access to suitable housing inhibitsre- increase the flow of minority or female applicants follow: cruitment efforts and employment of qualified minorities. (1) Certain organizations such as the Urban League, Job (16) Lack of suitable transportation (public or private) Corps, Equal Opportunity Programs, Inc., Concentrated to the work place inhibits minority employment. Employment Programs, Neighborhood Youth Corps, Sec- (17) Labor unions and subcontractors not notified of ondary Schools, Colleges, and City Colleges with high their responsibilities. minority enrollment, the State Employment Service, spe- (18) Purchase orders do not contain EEO clause. cialized employment agencies, Aspira, LULAC, SER, the ( '9) Posters not on display. G.I. Forum, the Commonwealth of Puerto Ricoare nor- mally prepared to refer minority applicants. Organizations § 60-: '4Development and execution of programs. prepared to refer women with specific skills are: National (a)I nit contractor should conduct detailed analyses of Organization for Women, Welfare Rights Organizations, position ,:e criptions to insure that they accurately reflect Women's Equity Action League, Talent Bank from Busi- position fur. ,ons, and are consistent for thesame position ness and Professional Women (including 26 women's or- from one loc.,rt to another. ganizations), Professional Women's Caucus, Intercollegiate (b) The contractor should validate worker specifications Association of University Women, Negro Women's sorori- ties and service groups such as Delta Sigma Theta, Alpha by division, department, locationor other organizational unit and by job title using job performance criteria. Special Kappa, and Zeta Phi Beta; National Council of Negro attention should be given to academic, experience and skill Women, American Associationof University Women, requirements to insure that the requirements in themselves YWCA, and sectarian groups such as Jewish Women's do not constitute inadvertent discrimination. Specifications Groups, Catholic Women's Groups, and women's colleges. should be consistent for the same job title in all locations In addition, community leaders as individuals shall be added to recruiting sources. and should be free from bias as regards to race, color,re- ligion, sex, or national origin, except where sex isa bona (2) Formal briefing sessions should be held, preferably fide occupational qualification. Where requirementsscreen on company premises, with representatives from these re- out a disproportionate number of minorities or women such cruiting sources. Plant tours, presentations by minority and requirements should be professionally validated to jobper- female employees, clear and concise explanations ofcur- formance. rent and future job openings, position descriptions, worker specifications, explanations of the company's selectionproc- (c) Approved position descriptions and worker specifi- ess, and recruiting literature should be an integral part of cations, when used by the contractor, should be made avail- the briefing. Formal arrangements should be made forre- able to all members of management involved in the recruit- ferral of applicants, followup with sources, and feedback ing, screening, selection, and promotion process. Copies on disposition of applicants. should be distributed to all recruiting sources. (3) Minority and female employees, using procedures (d) The contractor should evaluate the total selection similar to subparagraph (2) of this paragraph, should be process to insure freedom from bias and. thus, aid the at- actively encouraged to refer applicants. tainment of goals and objectives. (4) A specin! effort should be made to include minorities (1) All personnel involved in the recruiting, screening, and women on the Personnel Relations staff. selection, promotion, disciplinary, and related processes (5) Minority and female employees should be made should be carefully selected and trained to insure elimina available for participation in Career Days, Youth Moti- tion of bias in all personnel actions. vation Programs, and related activities in their communi- (2) The contractor shall observe the requirements of ties. the OFCC Order pertaining to the validation of employee (6) Active participation in "Job Fairs" is desirable. Com- tests and other selection procedures. pany representatives so participating should be given au- (3) Selection techniques other than tests may also be thority to make on-the-spot commitments. improperly used so as to have the effect of discriminating (7) Active recruiting programs should be carried out against minority groups and women. Such techniques in- at secondary schools, junior colleges, and colleges withpre- clude but are not restricted to, unscored interviews, un- dominant minority or female enrollments. scored or casual application forms, arrest records, credit (8) Recruiting efforts at all schools should incorporate checks, considerations of marital status or dependency or special efforts to reach minorities and women. minor children. Where there exist data suggesting that (9) Special employment programs should be under- such unfair discrimination or exclusion of minorities or taken whenever possible. Some possible programs are:

94 THE CONFERENCE BOARD 96 (1) Technical and nontechnical co-op programs with pre- unit managers on a schedule basis as to degreeto which dominately Negro and women's colleges. corporate or unit goals are attained and timetables met. (ii) "After school" and/or work-study jobs for minority (c) The contractor should review report results withall youths, male and female. levels of management. (iii) ';ummer jobs for underprivileged youth,male and (d) The contractor should advise top female. management of program effectiveness and submit recommendations to im- (iv) Summer work-studyprograms for male and female prove unsatisfactory performance. faculty members of the predomirw.ntly minority schoolsand colleges. § 60-2.26Support of action programs. (v) Motivation, training and eniploymentprograms for (a) The contractor should appoint key members of the hard-core unemployed, MaiCa -4 female. management to serve on Merit Employment Councils, (10) When recruiting brochures pictoriallypresent work Community Relations Boards and similar organizations. situations, th^. minority and female membersof the work (b) The contractor should encourage minorityand fe- force should be included, especially wher such brochures male employees to participate actively in NationalAlliance are used in .chool and career programs. of Businessmen programs for youth motivation. (11) Help wanted advertising should be expandedto in- (c) The contractor should support Vocational Guidance clude the minority news media and women's interest media Institutes, Vestibule Training Programs and similaractivi- on a regular basis. ties. (f) The contractor should insure thatminority and (d) The contractor should assist secondaryschools and female employees are given equal opportunity forpromo- collegesin programs designedto enable minority and tion. Suggestions for achieving this result include: female graduates of these institutions tocompete in the (1) Post or otherwise announce promotionalopportuni- open employment market on a more equitable basis. ties. (e) The contractor should publicize achievementsof (2) Make an inventory of current minorityand female minority and female employees in local and minoritynews employees to determine academic, skill and experiencelevel media. of individual employees. (f) The contractor should supportprograms developed (3) Initiate necessary remedial, job trainingand work- by such organizations as National Alliance of Businessmen, study programs. the Urban Coalition and other organizationsconcerned (4) Develop and implement formal employeeevaluation with employment opportunities for minoritiesor women. programs. (5) Make certain "worker specifications"have been Subpart DMiscellaneous validated on job performance related criteria. (Neither mi- 11 60-2.30 nority nor female employees should be required Use of goals. to possess The purpose of a contractor's establishment and higher qualifications than those of the lowest qualifiedin- use of cumbent.) goals is to insure that he meet his affirmative actionobliga- tion. It is not intended and should not be used (6) When apparently qualified minorityor female em- to discrimi- nate against any applicant or employee because of ployees are passed over for upgrading, requiresupervisory race, personnel to submit written justification. color, religion, sex, or national origin. (7) Establish formal career counseling programs to in- 11 60-2.31Preemption. clude attitude development, education aid, jobrotation, buddy system and similar programs. To the extent that any State or local laws,regulations or (8) Review seniority practices and seniority ordinances, including those which grant specialbenefits to clauses in persons on account of sex, are in conflict with Executive union contracts to insure such practicesor clauses are non- discriminatory and do not have a discriminatory effect. Order ;1246, as amended, or with the requirementsof this (g) Make certain facilities at,d company-sponsored part, we will regard them as preempted under theExecu- social tive order. and recreation activities are desegregated.Actively en- courage all employees to participate. 11 60-2.32Supersedure. (h) Encourage child care, housing and transportation All orders, instructions, regulations, and memoranda of programs appropriately designed to improve the employ- the Secretary of Labor, other officials of the ment opportunities for minorities and Department of women. Labor and contracting agenciesare hereby superseded to the extent that they are inconsistent herewith, 11 60-2.25 includ,'a Internal audit and reporting systems. previous "Order No. 4" from this Office dated January (a) The contractor should monitor records of 30, referrals, 1970. Nothing in this part is intended to amend41 CFR placements, transfers, promotions and terminationsat all 60-3 published in the Federal Registeron October 2, 1971 levels to insure nondiscriminatory policy is carried out. or Employee Testing and Other Selection Proceduresor 41 (b) The contractor should require formalreports from CFR 60-20 on Sex Discrimination Guidelines.

TEXTS OF REGULATIONS 95 Effective date.This part shall become effective on the tion program with special attention directed to the included date of its publication in the Federal Register (12-4-71). workforce analysis, using the format set forth in the Stand- Signed at Washington, D.C., this 1st day of December ard Compliance Review Report, (2) an on-site review of 1971. those matters which still are not fully or satifactorily ad- J. D.HODGSON. dressed in the affirmative action program and workforce Secretary of Labor. analysis, using the format set forth in the Standard Com- HORACEE.MENASCO. pliance Review Report and (3) where necessary, an off -site Acting Assistant Secretary analysis of information supplied by the contractor during for Employment Standards. or pursuant to the on-site review. (The standard compli- JOHNL.WILDS. ance review report will be published on or before the effec- Director, Office of tive date of this part.) Contractors may reach agreement Federal Contract Compliance. with their respective compliance agencies on nationwide AAP formats or on frequency or updating statistics with Order Establishing Standardized the approval of the Director of OFCC. (a)DeskAuditUsing OFCC approved methods of Compliance Reviews priority selection, compliance agencies shall routinely re- quest from among the Federal contractors within their Order No. 14 originally was issued to the heads of all jurisdictionaffirmative action programs and supporting federal agencies on Jan. 14, 1972, and implemented on documentation, including the workforce analysis and sup- July I. 1972. It was revised and re-issued on February 6, port data for audit. As used throughout this part, the term 1974, effective April 15, 1974. "Affirmative Action Program (AAP) and supporting docu- The Order was issued in completed form, including clari- mentation" means the Required Contents of Affirmative fying amendments, July 12, 1974. Also added at this time Action Programs, as set forth in Subpart B of 41 CFR was a "Standard Compliance Review Report." which ex- Part 60-2 and Methods of Implementing the Requirements plains the steps compliance officers are required to take in of Subpart B, set forth in Subpart C of 41 CFR Part 60-2. conducting a compliance review. "Workforce analysis" is defined as a listing of each job title as appears in applicable collective bargaining agreements or Subpart AGeneral payroll records (not job groups) ranked from the lowest § 60.60.1Purpose and scope. paid to the highest paid within each department or other This part shall be known as "Revised Order No. 14" and similar organizational unit including departmental or unit is intended to establish standardized contractor evaluation supervision. If there are separate work units or lines of procedures for compliance agencies, in their conduct of progression within a department a separate list must be compliance reviews of contractors for supplies and services provided for each such work unit, or line, including unit subject to the Equal Employment Opportunity Require- supervisors. For lines of progression there must be indi- ments of 41 CFR 60-1.40 and 41 CFR Part 60-2 (Re- cated the order of jobs in the line through which an em- vised Order No. 4) for the development of written affirma- ployee could move to the top of the line. Where there are tive action programs. no formal progression lines or usual promotional sequences, job titles should be listed by department, job families, or § 60-60.2Background. disciplines, in order of wage rates or salary ranges. For (a) Each prime contractor or subcontractor with 50 or each job title. the total number of male and female incum- more employees and a contract of $50,000 or more is re- bents, and the total number of male and female incum- quired to develop a written affirmative action program for bents in each of the following groups must be given: each of its establishments (§60-1.40 of this chapter). If a Blacks, Spanish surnamed Americans, American Indians contractor fails to submit an affirmative action program and Orientals. The wage rate or salary range for each job and supporting documents, including the workforce anal- title should be given. All job titles, including managerial ysis within 30 days of a request therefor, the enforcement job titles, must be listed. procedures specified in OFCC Order No. 4 (§ 60-2.2(c) of Exceptions to the desk audit requirementsForpre- this chapter) shall be applicable. award reviews and for complaint investigations with the (b) Required affirmative action programs must contain approval of the agency Contract Compliance Officer (as a utilization analysis and goals and timetables as required defined at § 60-1.6(b)), the desk audit need not be car- in § 60-2.11 and § 60-2.12 of this chapter. ried out or an abbreviated desk audit may be performed and an immediate on-site review performed. Special reports Subpart BProcedures for Contractor Evaluation that meet the criteria in (b) (1) below may be requested § 60-60.3Agency actions. from contractors, as required, for submission to the agency Basic stepsAcontractor evaluation should proceed as for complaint investigations and follow-up reviews per-

follows: (1) a desk audit of the contractor's affirmative ac- formed within 1 year of a full compliance review. The

96 THE CONFERENCE BOARD 1UF Director may approve other special compliancereviews isclosure and Review of Contractor Data when the circumstances require an immediate on-sitere- view. .dentiality and relevancy of information. (b) On-site reviewIf upon selection ofan AAP and (a)De), it dataIf the contractoris concerned included workforce analysis for desk audit, the compliance with the confa:...ntiality of such informationaslists of agency finds that the material submitted does not demon- employees, employee names, reasons for termination and strate a reasonable effort by the contractor to meet all the pay data, ().:1.1 alphabetic or numeric coding or theuse of requirements of subparts B and C of Order No.4, (Part an index of pay and pay ranges are acceptable for desk 60-2 of this chapter) the on-site review neednot he carried audit purr, . out and the enforcement procedures specified in Order 4 (h) Or, data The contractor must provide fullac- shall be applicable. cess to all t;:levant data on-site as required by § 60-1.43 of Otherwise following a desk audit the affirmative action this chapter. program and supporting documentation the agency will (c) Data required for oft -site analysisThecontractor schedule an on-site review of the establishment, provided, must provide all data determined by the compliance officer that an on-site review need not be carriedout when the to he necessary for off-site analysis pursuant to §60-60.3 agency can determine that the contractor's affirmative ac- (c) above. Such data may only he coded if thecontractor tion program is acceptable. This determinationmust he makes the code available to the complianceagency. If the based on the current desk audit and an on-site reviewcon- contractor believes that particular information which is to ducted within the preceding 24 months and alsomust in- he taken off-siteis not relevant to compliance with the chide an affirmative determination that the circumstances Executive Order, the contractor may requesta ruling by of thepreviouson-sitereviewhavenotsubstantially the agency Contract Compliance Officer. Thecontract com- changed. pliance officer shall issue a ruling within 10 days. Thecon- (1) Each agency is to request from those contractors tractor may appeal that ruling to the Director of OFCC within 10 days. The Director of OFCC shall issuea final scheduled for on-site reviews that informationnecessary to perform the review be made available on-site. Specifically. ruling within 10 days. Pending a final ruling, the informa- this includes (1) information necessary tion in question must be made available to the compliance to conduct an in officer off-site, but shall be considered depth analysis of apparent deficiencies in the contractor's a part of the investi- utilization of women or minorities, (2) information gatory file and subject to the provisions of paragraph (d) re- below. The agency shall take all quired for a complete and thorough understanding of data necessary precautions to safeguard the confidentiality of such information until contained in or offered as support for the affirmative action a final determination is made. program and (3) information concerning matters relevant Such information may not be copied by the to a determination of compliance with the requirements of agency and access to the information shall he limited to the compliance Executive Order 11246 (as amended). but not adequately officer and agency personnel involved in the determination addressed in the affirmative action program. However, the of relevancy. Data determined to be not relevant contractor should he requested to furnish only the specific to the investigation will be returned to the items of information which the compliance officer deter- contractor immediately. (d) Public access to informationInformation obtained mines ;ire: from a contractor under Subpart B will be subjectto the (i) Necessary for conducting the review and completing public inspection and copying provisions of theFreedom the standard compliance review report, and of Information Act, 5 U.S.C. 552. Contractors should (ii) Not contained in or able to he derived from the identify any information which they believe is not subject material submitted by the contractor. to disclosure under 5 U.S.C. 552. and should specify the (2) In order to pursue certain issues uncovered in the reasons why Nuch information is not disclosahle. The Con- compliance review, it may he necessary for the compliance tract Compliance Officerwill consider the contractor's claim and make a determination, within 10 days, officer to request certain additional information on-siteeven as to though such data have not been previously identified. Such whether the material in questionis exempt from dis- additional information must also meet the above criteria. closure. The contract compliance officer will inform the contractor of such a determination. The contractor may (c) MI-site analysisWhere necessary, the compliance ,:ppeal that ruling to the Director of OFCC within 10 officer may takeinformation made available during the uays. The Director of OFCC shall make a final determina- on-site review off-site for further analysis. An off-site anal- tion within 10 days of the filing of the appeal. However, ysis should be conducted where issues have arisenconcern- during the conduct of a compliance reviewor while en- ing deficiencies or an apparent violation which, in Ifx forcement action against the contractor is in progressor judgment of the compliance officer, should hemore thor- contemplated within a reasonable time, all information ob- oughly analyzed off-site before a determination o(-,:om- tained from a contractor under Subpart B except informa- pliance is made. tion disclosable under §§ 60-40.2 and 60-40.3 of this title

TEXTS OF REGULATIONS 97 1 0 is to be considered part of an investigatory file compiled under the rules and regulations pursuant to the Executive for law enforcement purposes within the meaning of Order. 5 U.S.C. 552 (b)(7), and such information obtained (b) During this period the compliance agency shall from a contractor under SubpartBshall be treated as (I) Complete the desk audit. exempt from mandatory disclosure under the Freedom of (2) Schedule the on-site review. Information Act during the compliance review. (e) Examination and copying oi documentsNothing (3) Complete the on-site review. (4) Complete the off-site analysis, if conducted. contained herein is intended to supersede or otherwise limit (5) Give notice of compliance or issue show cause notice. the provisions contained in Part 60-40 of this chapter for (6) Complete and forward the coding sheet to OFCC. public access to information from records of the OFCCor its various compliance agencies. (c) A contractor's affirmative action plan may be ac- cepted only after the coding sheet has been forwarded to § 60-60.5Employee interviews. OFCC. The coding sheet is the notification required by The compliance officer should contact, where appropri- § 60-2.2(a) (2) of this chapter. Failure of the compliance ate, a reasonable number of employees for interviewsas agency to give the contractor a notice of compliance or part of the on-site review of the contractor's employment issue a show cause notice within the time period set forth practices. The number, scope and manner of conducting in paragraph (a) shall not be deemed a finding of compli- such interviews should be discussed in advance with the ance or acceptance of the contractor's affirmative action contractor. program by the compliance agency. § 60-60.6Exit conference. § 60-60.8Supersedure. (a) Upon completion of the on-site review (and off-site analysis, if one is undertaken) the compliance officer should The requirements of this part 60-60 supersede the prior version of Revised Order No. 14 published at 38 FR schedule an exit conference with contractor officials tore- 13375, May 21, 1973. view the findings of the review. This exit conference should itemize the apparent violations that lend themselves to im- § 60-60.9Attachments. mediate correction, and solicit the contractor's agreement The following formats are set out in to take adequate corrective action by specified dates. The full as they give detailed information as to procedures and requirements of contractor's commitments should be contained ina written value to contractors: conciliation agreement signed at the exit conference. How- ever, in cases where the apparent deficiencies require fur- ther analysis subsequent to the on-site review, thecom- STANDARD COMPLIANCE REVIEW pliance officer will advise the contractor of theareas of REPORT concern, secure the data necessary to his ultimate compli- ance determination, complete the review later by notifying Contract Compliance Review Procedure and Report Format the contractor in writing of all apparent violations found, Purpose: and obtain the contractor's commitments in a writtencon- The purpose of these guidelines is to provide compliance ciliation agreement to correct such deficiencies. officers with a systematic standardized approach to the (b) The contractor may at any time avail himself of conducting of a compliance review and the preparation of the provisions of § 60-1.24(c) (4) of this chapter which a comprehensive report under Revised Order No. 14. It is provides as follows: not meant to be an all inclusive or an inflexible document When a prime contractor or subcontractor, withouta to be used in sequence in the actual conducting of a com- hearing, shall have complied with the recommendationsor pliance review, but is an effort to point out the essential orders of an agency or the Director and believes suchrec- elements that should at least be addressed in all such efforts. ommendations or orders to be erroneous, he shall upon An analysis of the affirmative action program and support filing a request therefor within 10 days or such compliance, data is required of each contractor facility targeted for be afforded an opportunity for a hearing and review of the review. The purpose of your analysis is to determine if the alleged erroneous action by the agency or the Director. contractor is in compliance with the requirements of Ex- ecutive Order 11246, as amended, and the implementing § 60-60.7Time schedule for completion. regulations. If your analysis identifies deficiencies, the rea- (a) With the exception of extensions of time granted sons or possible reasons (including past or present person- by the Director of OFCC for good cause shown, within 60 nel policies or practices) why certain deficiencies exist days from the date the affirmative actionprogram, includ- should be identified and evaluated as well as the appropri- ing the workforce analysis, is received by the agency, the ateness of the actions the contractor has taken or plans compliance agency must either have found the contractor he intends to take. This will enable you to make a determi- in compliance and notified the contractor of that fact,or nation of whether or not the contractor is in compliance must have issued a 30-day ;how cause notice as required with the Executive Order.

98 THE CONFERENCE BOARD .10z In preparing the actual written report for official sub- CFR 60-2.13? This discussion should he a brief introduc- mission (which is subject to review by the Office of Fed- tory statement to the further analysis which will constitute eral Contract Compliance), the information must bepre- the desk audit. sented in the prescribed format irrespective of theagency originating the review. The prescribed format is the various Ii. Workforce Analysis items listed below in the order in which they are listed. A. Composition Instructions for the analysis for each heading are found in (1) An adequate compliance review must always be the Desk Audit Section, or in the on-Site Review Section founded on a clear understanding of where minorities and of these guidelines. women are not employed in the contractor's workforce. An overall view of the composition of the workforce should Part A. Desk Audit Section he obtained by reviewing the most recent copy of SF-100 (EEO-11 as well as copies of the official submission for the Identifying Information past year or more. This analysis should indicate such po- Workforce Analysis tential problem areas as whether or not minorities and Recruitment, Hiring, Selection aid Placement women are employed in higher level job categories, under Promotion and Transfer utilization of women in nonclerical jobs, and concentrations Terminations of minorities and/or women inservice worker or un- Analysis of Jobs with Substantial Concentrations of skilled categories. The comparison made with thepast Minorities or Women EEO-1 reports will give some insightinto the kind of progress being made by the company in their overall em- Part B. On-Site Review ployment pattern. Also review the rank and pertinent data identifying Information on the establishment in Table C of the OFCC Target Community Survey Selection and Evaluation System for the past year ormore. Initial Contact with Contractor (2) Prepare your analysis of this summary information, EEO Policies and Procedures recognizing that these comparisons are most fundamental Recruitment, Hiring, Selection and Placernen; in nature and only form the foundation from whichto Promotion and Transfer explore minority group and female utilization. Furtherex- Terminations ploration in the utilization of minorities and women must Supervisory Positions now be made. Pay Practices (3) The composition of the workforce Ly minority Analysis of Jobs with Substantial Concentration of group and sex must be understood well beyond EEO-1 Minorities or Women job categories and must consider where such employeesare XI. Training and Educational Opportunities working and not working inindividual departments or XII.Goals and Timetables other units. This is necessary in order to determine whether XIII.Religious and National Origin Discrimination or not the company is underutilizing minorities or women In addition, no review is completed until the Coding in certain jobs. and whether or not minoritygroups or Sheet is forwarded to OFCC. The Coding Sheet provides females are employed in specific jobs, and as a result might the necessary instructions for its completion. he identified as members of an "affected class." B. Examination of Work Force Analysis Part A. Desk Audit Section (1) Review the "workforce analysis" required from the I. Identifying Information contractor. For the purpose of this report alphabetic or numeric coding or the use of an index of pay andpay A. Indicate: the name and address of the contractor; the ranges is acceptable and should be used when contractors date the letter was sent requesting the affirmative action are concerned about confidentiality or salary information. program and supporting documentation including the work- (2) List the job titles by department in which the minor- force analysis; the date the AAP was received: the type ity or female proportions either do not generally reflect the of review (i.e., pre-award, post-award, follow-upor other). minority or female composition of the establishment's labor B. In beginning the desk audit, determine andso indi- force or the labor force of the area within which itis cate whether or not there is a utilization analysis for minor- reasonable to expect persons to commute. These titlesare ities and women that considers the points itemized in 41 to be considered "focus job titles." Also list as "focus job CFR 60-2.11. Discuss fully any deficiencies with the anal- titles" areas with substantial concentration of minoritiesor ysis. Has the contractor established goals and timetables women and also job titles where minorities or women may for minorities and women to the extent required by 41 he continuing to suffer the effects of past discrimination. CFR 60-2.12? If the contractor has not establisheda goal. These problem areas will now be the principle (sic] focus of does his AAP analyze the factors in 41 CFR 60-2.11? Does the review. Present your analysis for each such "focus job the contractor's AAP include all the ingredients listed in 41 title" listed. including at least all of the followingareas:

TEXTS OF REGULATIONS 99 (a) Is the job group to which this job title belongs ad- in the letter are: applications and informationon appli- dressed as an area of deficiency or source of promotable cants (see III B): rejections (see III E); promotions and persons in the affirmative action program? Where certain transfers (see IV); terminations (see V); and jobgroups jot: titles within a given job group show an inordinate and (see VI). These items are not intended to be used to im- consistent absence of minorities or women in relationto pose additional standard reporting requirements on con- their availability, the contractor may he required to estab- tractors. The regulations require an analysis of each of lish and set forth specific goals and timetables for these these areas and the contractor may prepare an analysis job titles separately from tfie goals for the jobgroup of that meets the regulations and the contractor's own needs which they are a part. through the affirmative action program and support data. (h) Are any problems intheutilization of minority An adequate analysis b the contractor will enableyou to men or minority women or members of a particular minor- prepare an analysis to that called for in each section of ity group ( Blacks, Spanish-surnamed Americans, Orientals this report or to determine that the area is not causingan or American Indians) addressed where necessary through equal opportunity problem. If the contractor's analysis is the establishment of separate goals and timetables? See 41 inadequate under the regulations, or if the focus job titles CFR 60-2.12 (k). cited by you in your review of the workforce analysisare (c) In the job group to which this job title belongs,are not included, or if information is needed for the three cate- goals and timetables significant and attainable such that gories cited in 41 CFR 60-60.3(b)(1), then thecontractor underutilization will be eliminated in a reasonable period should be informed of the additional information that of time and that turnover and growth are considered in must he made available on site. In addition, you must de- the establishment of numerical goals. including theuse termine that such requests meet the requirements of 41 of percentages as backup goal estimates? See 41 CFR CFR 60-60.3(b)(1)(a) and (h). 60-2.12. (d) Are other appropriate actions included in the af- III. Recruitment, Hiring, Selection and Placement firmative action program to remedy current concentrations A. OFCC regulations require contractors to conductan of minorities or women in certain jobs? analysis of applicant flow as part of their hiring practices. (41 CFR 60-1.40(b)(2), 60-2.12(1), 60-2.23(a)(2). (3), (3) Evaluation of Contractor's AAP and FOCUS Job titles (4), and 60-2.24(d) and (e).) Review the sections of the (a) if in your analysis, you conclude that the contrac- affirmative action program that contain this analysis. tor's affirmative action program has satisfactorily addressed B. Prepare as a part of this report, your analysis of the each of these areas, then add your analysis of the contrac- contractor's data onrecruitment,hiring,selectionand tor's past achievements for the relevant focus job title and placement. Determine if the data supplied by thecontractor the current status of attainment in his affirmative action is adequate under the regulations and analyze these data. program. Has the contractor met his past goals and is he Your analysis should reflect applicant activity for the last proceeding at a current rate of progress that implies he year. If the number of applicants in the last year was less will meet current goals? If not, you must determine if the than 100, your analysis should include all such applicants. contractor has made a good faith effort to achieve these If the number of applicants in the last yearwas more than goals. Cite the specific efforts that you conclude demon- 100. your analysis should include an appropriate sample strate good faith. Include your analysis as called for in of 10 percent of such applicants or 100, whichever is item XII of the on-site.,:ction of these guidelines as part greater. Summarize total applicants by total, male, female, of this desk audit. and male and female minority classifications. While in (b) If in your analysis, you conclude that the contrac- many cases applicants are not classified by particular job, tor's affirmative action program has not satisfactorily ad- it should be possible to provide some separation of theap- dressed any of these areas, then you must identify the plicant flow count into at least broad occupationgroups. additional information needed. Include the following in Report the number of offers of employment for each cate- your analysis of the contractor's AAP. gory and by total. male, female. and male and female (1) Such material as organizational charts. minority classifications. The acceptances should he related to the job groups outlined by you in your review of the (2) Promotional sequences and line of progression charts (if established). workforce analysis. C. If the data supplied by the contractor are inadequate (c)In subsequent sections of the desk audit, specific under the regulations or if the data relevant to the focus analysis is required. If the information necessary foran job titles cited to you in your review of the workforce anal- adequate analysis is not available in the contractor's affirm- ysis are not indicated, further information will henecessary. ative action program or if the focus job titlesare not ade- In the letter prior to the on-site visit, advise thecontractor quately included, a letter to the contractor should he sent to maintain such data in the future and that the following prior to the on-site visit informing him of the information collection of data will be made during the on-site review to that must he available on site. Items for possible inclusion determine any problems that may exist in applicant flow

100 THE CONFERENCE BOARD and hiring rates. Because information is more readily ac- of promotions in the last year was more than 100 your cessible on site and to insure that the recruitment, hiring, analysis should include an appropriate sample of 10 percent selection and placement procedures are adequately ana- of such promotions or 100, whichever is greater. A promo- lyzed, more information will be necessary. tion is defined as any personnel action resulting in move- During the on-site review, obtain applications of appli- ment to a position of greater skill, effort or responsibility. cants for blue-collar employment and applicants for white Wage increases alone do not determine a promotion. The collar employment. You may use a random sample or an review should relate name or other identification to minor- immediate past chronological period. You should be sure ity/majority group status, sex, previous job, department to include the job titles cited by you in your review of the and pay. and new job and department and pay. workforce analysis. Now construct the report described in the paragraph above showing applicants, offers and ac- V. Termination ceptances by total male, female, and male and female mi- Review the contractor's analysis of terminations in his nority classifications by as much organization job grouping affirmative action program. If such analysis is not available detail as possible. or if the contractor's analysis presented in the affirmative D. Based on the data coliected under paragraph B or C action program is inadequate under the regulations or if above, indicate whether or not the proportion of offers or the focus job titles cited by you in your review of the work- hires to minorities or women is less than the proportion of force analysis are not included, advise the contractor in the applicants who are minorities or women for the particular letter prior to the on-site review, to prepare for the on-site job groups. If so, the basis for this rejection rate must be review a list of terminations, by name or other identifica- investigated and discussed. Discuss the selection procedures tion, showing hire and termination date, job assignment, used for these jobs. Explore whether or not the distribution minority/majority group membership and sex. To deter- of those minorities or women actually employed reflects a mine if there is an unfair disparity of company policies, current or past lower rate of hire. terminations should be reviewed. If the number of termina- E. For any job group identified in paragraph D above tions in the last year was less than 100, your analysis should as having a lower rate of offers or hires for minorities or include all such terminations. If the number of terminations women than indicated by the applicant flow, ask the con- in the last year was more than 100, your analysis should tractor in the letter prior to the on-site visit (or during the include an appropriate sample of 10 percent of such ter- on-site review if the information in paragraph B is col- minations or 100, whichever is greater. lected on site), to have available for the on-site review, an analysis showing the reasons for the rejection of applicants VI. Analysis of Jobs with Substantial Concentrations of for total and by appropriate race and sex groups for these Minorities or Women job groups. Reasons include but are not necessarily limited A. Now look again at each of the focus job titles with to: substantial concentrations of minorities or women as cited (1) Qualified for some jobs, but no vacancies at time of by you in your review of the workforce analysis. Based application. upon your analysis of the workforce composition and your (2) Failed to fill out application completely. analysis in previous sections, prepare an analysis which in- (3) Failed paper-and-pencil or performance tests. chides an identification of those specific jobs wherein the (4) Failed educational requirements. minority or female incumbents could have been denied (5) Unsatisfactory work history. placement, promotion or transfer due to discrimination. (6) Unfavorable credit report. B. In order to identify an affected class, it will be neces- (7) Unfavorable interview. sary to review detailed listings of employees in the jobs (8) Unfavorable reference check. identified in A above. Inform the contractor in the letter (9) Failed physical requirements. prior to the on-site review that these listings will be re- (10) Transportation inadequate. quired for the on-site review. For all the job groups cited, (11) Criminal convictions. the contractor should be asked to prepare a list by depart- (12) Applicant rejected contractor's offer of employment. ment, line of progression or unit within which promotion normally occurs of all employees ranked by job in order IV. Promotion and Transfer of progression and indicating for each: name, job title, rate Review thecontractor'sanalysis of promotions and of pay, sex,minority group or nonminority identification, transfers in his affirmative action program. If such analysis original hire date, and other appropriate seniority dates is not available, or if the contractor's analysis is inadequate considered in promotion, transfer or layoffs. If department, under the regulations, the investigator should ask the con- job, company or plant seniority dates are utilized by the tractor in the letter prior to the on-site review to prepare contractor such dates must be included. Usually, even if for the on-site review a list of promotions. If the number seniority is not a guiding factor in promotions, in all but of promotions in the last year was less than 100, your managerial positions, total length of service will he cor- analysis should include all such promotions. If the number related to job entitlement.

TEXTS OF REGULATIONS 101 Or; Part B. The On-Site Review notified of their EEO obligations relative tofiling the Standard Form 100 and preparing an affirmative action I. Identifying Information program? Review a sample contract and purchase order Give the dates of the on-site review indicating the date form for inclusion of an EEO clause. Does thecontractor the review was initiated and completed. Listthe names and require a certification of nonsegregated facilities from each titles of contractor personnel contacted in the review. nonexempt subcontractor? Does the contractor assureap- propriate physical facilities to both sexes? IL Community Survey (3) Any additional information needet: for the conduct A. Community contacts should he made appropriate and of this review should be requested during thL: initialcontact practical prior to the direct meeting with thecontractor. to assure its availability w!iile still on-site. A tour of the fa- Some later confirmations may he required. Thenumber of cility might be appropriate at this timeor at least it can these contacts depends on the nature of the information he tentatively scheduled for a later point in the review.To available prior to visiting the locale. If there is a regional avoid unwarranted or unintended interferences withem- OFCC office, they may he able to advise you on the effec- ployer-employee relations, the number, content andscope of tiveness of some community resources as possible referral employee interviews should be discussed with thecontrac- sources for minority and women job seekers. Acontact tor at this time. with the local office of the State EmploymentService is vital to ascertain the substance of the contractor'srelation- B. Report of General Information ship with that agency. If there is a minority specialist in Based on the information obtained from thecontractor, the office, he or she can be most helpful in orientingyou or researched by you. report on the contractor's corporate towards other community resources. organization as it might affect this review. If this material B. The following is relevant information which must he is adequately covered in a previous review, attacha copy reported in this section as determined through community of the relevant portion of that review. Attach copiesof a contacts or otherwise: sample contract or purchase agreement anda sample cer- (1) Report of population and workforce data as speci- tificationof nonsegregated facilitiesas exhibits tothis fied in Order No. 4. report. Describe the compliance history of the contractor (2) Indicate other key industries and companies with leading up to the previous compliance review indicating whom the contractor will be competing for minority and the compliance agencies involved andany changes in the women workers. compliance posture. What actions has the contractortaken (3) List the significant employment oriented organiza- relative to commitments made subsequentto the last com- tions which could be referral sources for minoritiesand pliance review? women. (4) Identify the community leaders generally recognized W. EEO Policies and Procedures as representing minorities and women. A.External (5) Comment on the community image of thecontractor Describe how the contractor indicates he has attempted as an EEO employer and otherwise including the reputation to establish an image of an EEO employer in hiscommu- of the contractor's facility as a desirable place to work. nity and in his recruitmentarea. How does the contractor utilize and support organiza- III. Initial Contact with Contractor tions which would assisthis efforts and implement his A. Initial Contact affirmative action program? (1) If this is the initial compliance review experience for the contractor, a brief discussion of the history of thecom- B. Internal pliance program is appropriate. Otherwise, thecontractor (I) Are EEO posters prominently displayed? Indicate need only he brought up-to-date regardingany new policies the type of EEO policy statements that have been issued. or changes in the rules and regulations occurring since the By whom and addressed to whom? Are thesestatements previous review. If not adequately determined in the previ- posted? Are they included in employee handbooksor policy ous review or, if significant changes have occurred, dis- manuals? Is the policy statement up-dated periodically? Has cussthe contractor's overall corporate organizationin management expressed any intention in writing or other- terms of corporate headquarters, subsidiaries, number of wise to take disciplinary action for failureto adhere to facilitiesand, nature of the inter-facility relationships as it EEO policies and procedures? Does thecontractor publi- might affect this review. cize an EEO achievement? Have out-datedposters men- (2) Discuss the nature and extent of the contractor's tioning restrictions on employment of females beenre- Government contract work. How does this relateto the moved? contractor's business? Discuss the major non-exempt sub- (2) Describe the role of the EEO coordinator. What contractors and determine if the contractor has satisfied role does the coordinator play in dissemination of policy? his EEO responsibilities intheir regard. Have they been How much time does he or she spend in EEO work?

102 THE CONFERENCE BOARD

1 0 G (3) Describe if supervisors are involved in goal setting. job specifications? If not, what proceduresare used instead? How have the lower level supervisors received and dis- Are job requisitions submitted tet the employment office in seminated company EEO policy? Are supervisors heldac- writing and how detailed are they? Are these formsor countable for failure to meet EEO goals? Is EEOpart of others used for external recruitment? Sample a representa- the orientation for new employees andare there periodic tive number of job requisitions on a given date and deter- meetings with employees and/or supervisors on the subject? mine if minorities and women were applying at thesame time. The contractor's applicant flow data and application V. Recruitment, Hiring, Selection and Placement retrieval system should permit this kind of comparison A. General Procedures with minimum effort. Obtain samples ofany other relevant ( I) Review the material in the desk audit section of forms utilized by the personnel operation such as inter- these guidelines to see that you have completed there- view reports. quired analysis to identify the job titles where fewer offers (4) Describe in detail the job application process from or acceptances are made to minorities and women and have the point where the applicant first makes contact with the indicated information needed for on-site analysis. contractor. Observe the physical layout of the contractor's (2) Provide an analysis based on the following issues employment office for any segregation by race orsex of with full explanation when necessary, from data gathered applicants and whetherit would be apparent to a job at the on-site review. Arf:. different interviewers assigned to seeker that the contractor has an integrated workforce. interview applicants because of their job interest,race or What are the responsibilities of any receptioniston duty? sex? Is job counseling offered? If not hired, is the applicant Does the receptionist screen applicants or application forms given a specific reason? Is it generally the realreason and in any way? Is everyone requested to completean applica- is it so noted on the application form? If not hired, what tion form at all times? happens to the application form? What are the possibilities (5) Does the contractor have a policy on nepotism? If of the application being retrieved at a later date? Basedon so, is the policy written or applied to effect job opportuni- the EEO specialist's analysis of records as well as the con- ties adversely for women more than men? Does thereap- tractor's statements, has this happened very often? If the pear to he any selection or placement pattern based on race employment office does not make final decisions for hire. or sex? Does the contractor claim any bona fide occupa- who does and on what basis? If additional interviewsare tional qualifications to justify sex discrimination? conducted, is there feedback to the employment office and the EEO Coordinator? Does anyone monitor for disparate B. Determination and Analysis of Adverse Effect rejection ratios of minorities and women? Can and does (1) Adverse effect is a differential rate of selection which anyone challenge decisions made by the selecting officials? works to the disadvantage of a covered group. In order to Are those who make selections conscious of the contractor's determine whether adverse effect results from theuse of goals and timetables? Describe what role if any the Co- "objective" selection requirements, review the data provided ordinator has in the selection process. by the contractor on the reasons for rejection for the job (3) Does the contractor maintain applicant flow data titles cited by you in the desk audit analysis. Present the which gives all the necessary information such as name, number and proportionof non-minority applicants or race, sex, job applied for, source of referral, date of appli- employees and the number and proportion of minorityap- cation and disposition? Obtain copies of application forms. plicants or employees rejected for each of the citedreasons. Do the forms request information which could he used in Present the same statistics for women and men. Then de- a discriminatory manner? Specify the questionable informa- termine the selection rate for each of thesegroups by tion and who might have access to it. If such information is subtracting the rejection rate from 100 percent.If the allegedly asked for affirmative action purposes, could it he selection rate for minorities (or women) is less than 80 maintained on a separate record? Are any questions asked percent of the selection rate for the remaining applicants of applicants of one sex but not of applicants of the other for any of the cited reasons, then there isan adverse effect sex (e.g., anticipated temporary disability. child care prob- and the selection method must he validated as required by lems, and marital status)? From discussions with inter- the OFCC Testing and Selection Order. To make this viewers and supervisors as well as from comments appear- computation, divide theselectionratefor the covered ing on the application forms, what appear to be some of group by the selection rate for the remaining applicants the more subjective criteria considered?(i.e.,socio-eco- and compare the resulting figure with 80 percent. For ex- nomic background, illegitimacy, appearance, dress, hair ample, if 30 percent of nonminorities are rejected (100% style, geographical, or non-job related school preferences.) 30% 70% selected) on the basis of educational re- Describe the filing system and check to see how long appli- quirements and 53 percent of minoritiesarerejected cations arc retained. Is there Ln affirmative action file or (100% 53% 47r% selected) on this bask, then there other retrieval system to enable minorities and women to is an adverse effect (i.e., 47 percent divided by 70 percent he reconsidered if no job can he offered at the time of their equals 56 percent, which isless than 80 percent). If no original application? Are there written job descriptions or individual reasoniscausing an adverse effectbutthe

TEXTS OF REGULATIONS 103

1 0 Psi minorities (or women) selected for employmentis less than try to identify or resolve these issues during the review. 80 percent of the remaining applicants In selected, then the cases where there are technical or complex issuesor any entire selection process must be reviewed and validated case where the compliance officer cannot makea clear de- as required by the OFCC Testing and Selection Order. termination of compliance or noncompliance, the Continue in this section with those job titles contrac- where you tor's evidence of test validity is to he submittedfor higher have determined that there isan adverse effect resulting level review along with the compliance officer'sanalysis of from one or more "objective" selectionrequirements. Con- the adverse effect. tinue with part (3) below for other jobtitles cited by you in the desk audit analysis, where thereare not "objective" (3) Underutilization, Higher Rejection Rates andOther selection requirements causingan adverse effect. Selection Procedures (2) Refer to the Testing and Selection Order For any job groups cited by you in the desk auditwhere (41 CFR thereis 60-3). To meet the requirements of that underutilization or a higher rejectionratefor Order, all contrac- minorities or women, are selection techniques tors must submit certain information. (41 CFR 60- other than 3.4(a), tests used for employment decisions? Such techniques 60-3.6, 60-3.15, 41 CFR 60-2.23(a )(31, 60- 2.23(b)(7), in- (8), (13),60 -2.24 (b), (d).) clude but are not restricted to unscoredor casual inter- views, unscored application forms and unscoredpersonal (a) To he meaningful, information submittedconcern- history and background requirements ing use of tests should include: not used uniformly as a basis for qualifying or disqualifying applicants (see 41 1. Applicable job title or jobgroup. CFR 60-3.13). If' so, the contractormust either provide the 2. identifying informationon procedures used for selec- same validation evidence as called for in B aboveor must tion or promotion, of individuals, includingthe following for adjust employment proceduresso as to eliminate the higher paper and pencil or performance tests:name of test, form, rejection rate and underutilization. and publisher or author. ( 4) Adequacy of Applicant Flow 3. Criteria for acceptanceor cut-off score, if applicable. 4. For total candidates tested in the Are the contractor's applicant flow data adequatefor past year, the num- the focus job titles cited by you ber of men and women not acceptable. The as having underutilization same informa- is your review of the workforce analysis'? tion for men and women should he provided If not, the fol- for Negroes, lowing further investigation into recruitment Spanish-t:urnamed Americans. American Indians methods and and Ori- resources is necessary during the onsite review. entals when the group constitutes 2percent or more of the (a) What procedures are used for external recruitment'? labor force in the labor marketor recruiting area and for Summarize the contractor's explanation of the specific nonminority men and women. Ifno dc9nite criteria of re- acceptance are used (such as cut-off scores), the cruitment methods and resources utilized for each focusjob average title involved. Are minority and women-oriented (mean) test score for each group and the press or scores of the broadcast media utilized? Do recruitment ads, three lowest scoring candidates accepted shouldhe pre- either in sented. words or location in the publication,suggest preference for one sex'? Explain the impact of word-of-mouthor other (b) If the selection procedure for which thereis an ad- employee referral systems. Explain if recruitment verse effect is a paper and pencil or performance sources measure arc contacted in writing at the time of actual job openings (see 41 CFR 60 -3.2), inquire if this has beenvalidated. If and how much information is provided the test has not been validated then the to them as to the contractor must qualifications necessary. take appropriate action (e.g., takenecessary steps to vali- (h) Is the contractor actually aware of the results ofthe date the procedureduring which time cut-offscores may company's recruitment efforts'? Has the have to he changed or eliminated, contractor spe- or eliminate the adverse cifically requested to have minority and effect ). The compliance office women candidates must determine whether the among these referrals? Has the contractor discontinued action taken by the contractor is in accord with 41 CFR using any of these sources which have failedto make such 60-3 and testing and selection guidance memoranda issued referrals? Has the contractor institutedany transportation by OFCC. If the selection procedure has beenvalidated. or housing programs to aid in minority recruitment? What the contractor must provide evidence to show that the pro- is the contractor's explanation forany failure to attract a cedure has been validated in accordance with theOrder significant number of women and minority applicants'? and the compliance officer must review this Are evidence. For employment opportunities denied towomen with young guidelines on reporting validity, refer to 41 CFR 60-3.6 of children but not to men withyoung children? Does the the Revised Testing and Selection Order as amended in contractor deny employment opportunities towomen or January 1974. You should informcontractors of noncom- men ',lased on a State "protective" law. pliance with the Order when validityor evidence support- (c) Describe the college recruitment ing validity is absent or substantially deficient. program only if However, college recruitment is involved for the focus iobtitles cited since the issues involved intest validity are often quite in your review of the workforce analysis. Areschools vis- technical and complex, the compliance officer should not ited with predominately minority orwomen enrollment? Is

104 THE CONFERENCE BOARD 108 the contractor familiar with some of the lesser known VIII. Supervisory Positions schools? How is this program related to the company's na- Review the workforce analysis and focus jobs cited by tional recruiting program? Describe the blue-collar recruit- you in the desk audit with specific reference to supervisory ment program, if applicable. positions. Comment on the representation of minorities (d) Identify the appropriate entry level positions and and women among supervisors and where promotions dur- the promotional ladders as indicated by the contractor and ing the previous year suggest any improvement. If appro- by the EEO Specialist's confirmation through sample record priate, review selected personnel records to conduct the analysis. Are these lines in any way oriented by race or sex? following analysis. Explain how supervisors are selected. Differentiate between those promotions that are automatic Who monitors these actions? Explain how supervisory abil- and those that are competitive. What is the significance of ity is measured. Are minorities and women supervising inte- interest, ability and seniority in promotion and transfer grated groups? Are women supervisors generally at a lower considerations? Are there any periodic written performance plateau in the organization? ratings which influence promotion or transfer? Explain Where there is low utilization of minorities or women in whether or not minorities or women are concentrated in supervisory positions, can this be traced to specific past certain jobs outside any line of progression or which dead- actions in recruitment or placement? Are there selection end before the employee can reach the pay grade to which criteria for supervisory positions that are causing an ad- their experience, training or seniority might entitle them. verse effect? If so, follow the procedures in V B(1) and V Is there a well structured transfer program? Discuss any B(2)(b)( I)above. Where minorities and women have lack of representation of minorities and women in this been newly installed as supervisors, has there been any program. Review the file on transfer requests, if any. Have negative reaction from the workforce and how has manage- many minorities or women been overlooked or rejected ment dealt with it? Is there a supervisory development pro- disproportionately? What is the frequency of inter- or intra- gram? Does this start prior to entry into supervision or is it departmental transfer for better working conditions or to part of an on-the-job program? Does it include training on gain promotional opportunities? Is counseling offered to EEO matters and problems? employees considering this move? How common is transfer from blue-collar to white-collar positions or from "tradi- IX. Pay Practices tionally female.' to "traditionally male" jobs or vice versa? Review and compare wages and salaries of a sampling Who monitors promotion and transfer activity and through of minorities and women within selected job titles. The what means? How is job security affected by transfer or following list of questions are necessary in making this in- promotion and does this disproportionately affect minorities vestigation. Be sure and give a full explanation with each or women? answer. A. Arc there positions with similar duties but with dif- VI. Promotion and Transfer ferent rates of pay? A. Based on the information outlined in the desk audit (1) Does the incumbent's sex or race have anything to section on promotion and transfers, a determination should do with these differences in rates of pay? now be made if there is a disparity between promotion rate (2) What is the contractor's explanation for these dis- of minorities and women as related to the rate for non- crepancies? minorities and/or males. B. Are there general salary ranges for jobs or specific B. Any selection criteria for promotion thatis causing rates at which everyone begins? a higher rejection rate of minorities or women must he C. Do minority and women workers appear to he paid reviewed using the procedure in V B(1) and (2), above. lower beginning rates? (I) What is the contractor's explanation? VII. Terminations (2) Who makes these determinations? D. Arc the rates negotiable? As a result of your analysis of data supplied during the desk audit or on-site, if there is a disproportionate number E. Are minorities or women assigned to jobs where in- centive earnings are more difficult? of terminations because of assignment of minority group F. Does review of any employee's records confirm or members or women to specific kinds of jobs, the causal fac- dispute the relationship of education, training, and experi- tor should he explored and discussed on-site. Present the ence to the wages being earned? results of that explanation here or state that no such dis- proportionate effect exists. Are employees of one sex in a X. Analysis of Jobs with Substantial Concentrations of certain job title terminated upon reaching a certain age Minorities or Women without the same rule applying to the other sex? Are pro- A. Review the information prepared by the contractor cedures affecting termination validated if there isa dis- and make a determination as to which, if any, departments proportionate effect? Refer practices or procedures that may or lines of progression within departments appear to have indicate age discrimination to the Wage-Hour Administra- been utilized in the past for discriminatory placement of tor of the U.S. Department of Labor. minorities or women.

TEXTS OF REGULATIONS 105 B. Now compare the wage or job classrange of each (5) What kind of seniority competition is there forre- such unit with that of departmentsor lines of progression duction in force and layoff? where whites (or males, if comparing female)are concen- (6) Assuming that the affected class may transfer, if trated. Also compare working conditions, degree of skill qualified, to other employment units, the heart of themat- acquisition, and rapidity of advancement in each unit.Then ter is what losses, in terms of seniority, job retention rights, make a determination as to whether each of the unitsin and wages, they will sustain if they seek to avail themselves which minorities or females are concentrated is lessdesir- of transfer opportunity? able. Take into consideration in this analysis whetherpro- F. Now make a determination as to whether members of gression to the top of one line may lead to advancementto the affected class are presently qualified, orcan become management while the other may not. Additional detail qualified in the same manner as white or male employees data will probably be required for this analysis. in the past, for jobs in the employment units from which C. If discriminatory placement has occurredyou must they have been excluded. The most productive technique attempt to determine if and when the company has ceased here is probably comparing present qualifications of the discriminatory placement. Begin witha review of your affected class with qualifications of whites (or males)at the analysis of new hire data, determining whether placement time the whites (or males) were hired.Make a determina- into departments and lines of progression has been oriented tion of the qualifications of the least qualified white (or according to race or sex. If so, then all present minority male) currently in the more desirable employment unit. and female incumbents of the units identified should be G. If you have identified an affected class, remediesmust considered members of an affected class.. Ifrace or sex no he developed for the contractor to he in compliance. Refer longer appear to be factors in placement ofnew hires, fur- to OFCC guidance memos on affected class in developing ther inquiry of the contractor must be made to determine each step of the remedy. However, in arriving at the nature when these factors ceased to be considerations inplace- and extent of the remedy, some insight is needed into the ment. Try to establish a definite date; all incumbents of the extent that any remedy would he welcomed and utilized by units identified hired prior to that date will he identified such individuals even with job security assured. It is there- as members of the affected class. fore advisable that selected members of the affected class he D. Formulate a definition of the affected classas identi- interviewed. Your written discussion of the remedy should fied in this review, and identify each member of it. This include the following aspects. Referring to the lines ofpro- may be done, for example, by reference to their locations gression or promotional sequences, which jobs in the seniority must dead- list. A typical definition would read as ended minorities and women move into in orderto pro- follows: gress? Would the affected class employee require additional- The affected class shall be considered to be all blackem- training to progress? Are the jobs in the promotionalse- ployees presently assigned to Progression I.inesI,2,3, quences functionally related? What changes in the bargain- and 4, who were hired prior to December 31, 1970. ing agreements would be necessary in orderto stimulate E. Now you must conduct an analysis to determine transfer of affected class members or perhaps make transfer which business practices are resulting in the denial of equal unnecessary? Has the contractor already initiatedsome ac- employment opportunity to those discriminatorily placed tion in this regard? When? Could long-time affected class in the past. Examine provisions of the collective bargaining members possibly move up more than one job title imme- agreement, or if no union, the company policy manual, diately or with little training in order to obtain their right- and summarize in the compliance review those provisions ful place in relationship to their company seniority? Note: having to do with transfer, promotion and layoff,as well since this is still a preliminary stage to finalagreements, as those dealing with the effect of seniority upon such per- you should avoid unnecessary interferences in employer- sonnel changes. The following must he determined: employee relationships by giving the contractor theoppor- tunity to discuss remedies with affected class members. If (1) May any qualified employees transfer fromone em- the contractor fails to do this adequately,you should inter- ployment unit to another? view selected members of the affected class. Through inter- (2) What kind of seniorityplant, department, seniority views you shottld determine whether minoritiesor women unit, jobis the basis for transfer competition? feel the union, if any, is servicing them properly. (3) If lines of progression or promotional sequencesare (1)Bargaining Units utilized within departments, is seniority the principal de- (a) Identify the various unions in the contractor's estab- terminant of promotion from one job level to thenext lishment. Determine if there are any memoranda of under- highest job level? In other words, is progression through standing or addendums not included in the laboragree- the line principally a function of seniority? ment. Obtain copies of all collective bargaining agreements. (4) What kind of seniorityplant, department, seniority Do the labor agreements contain an EEO clause? Review unit, line of progression, or jobis the basis for competi- these agreements (and attach them along with progression tion for promotion within lines of progressionor seniority charts to this report) considering, as appropriate, the fol- units? lowing:

106 THE CONFERENCE BOARD (b) Are EEO grievances subject to the applicable griev- hired directly into such programs. Is participation strictly ance machinery, if any. If so, with what frequency have voluntary or are there selection procedures? Such proce- such EEO grievances been filed and what have been the dures must be validated if there is an adverse effect. results. Does the labor agreement spell out the rights of (2) Inquire about what types of training new employees employees in terms of tenure, layoff, recall, transfer, pro- receive. Is there evidence of any disparate failure or drop- motions and the various fringe benefits? Is there a formal out rate? If such disparities exist, what efforts has the con- posting and bidding procedure for transfer or promotions? tractor made to correct the situation? How is failure de- What are the criteria for determining the successful bidder? termined? Is it in accord with 41 CFR Part 60-3? Is formal Are minorities and women encouraged to bid into jobs training being required now for jobs not previously in- where they have been previously underutilized? How im- volved? If so, have you included this in the section on portant is seniority? Can an employee hold more than one affected class? If there is a registered apprenticeship pro- seniority date? If so, explain what each means and how it gram, has the contractor developed an affirmative action was acquired? Do the layoff and recall provisions have a program under 29 CFR Part 30 or a State plan for EEO disparate effect on minorities and women? How and why? in Apprenticeship? Has the contractor's Apprenticeship Have there been any mergers of seniority units or lines of AAP been approved by the contractor's apprenticeship progression, and how has this affected minorities and wom- registration agency? en? Are there any "understood" or traditional practices which differ from those described in the contract itself? Are B. External Programs disciplinary actions spelled out clearly? (Explain this under Describe any programs offering tuition assistance and Section 3 below.) the extent of minority and women participation. What is (2) Non-Bargaining Unit Positions the contractor's explanation for any disproportionate rep- Determine if there are company policies or procedures in resentation of women or minorities? Describe any school writing which deal with the situations as discussed in the work or other cooperative type programs, the minority previous paragraph for those positions not covered by any and female enrollment at these institutions, and the minor- bargaining unit? Does longevity play any role in job se- ity and female participation in such programs. Are there curity? any summer school work programs or other Government or privately-funded training on a part time basis? Are there (3) Benefits and Disciplinary Actions any selec,'on or qualifying procedures that would tend to Review the contractor's personnel manual or its equiva- preclude the involvement of a representative number of lent. Are there any disciplinary policies which would tend minoritie- and women (e.g., expense, length of training, to discriminate against minorities or women? What is the travel involved, no clear evidence of career advancement, policy on maternity leave and is it in accord with OFCC etc.)? After completion of the program, is job placement regulations? Does the policy result in rejection or suspen- assured or assistance available? sion from employment or require involuntary leave solely on account of the condition of pregnancy? Are there any XII. Goals and Timetables distinctions based upon sex in the granting of fringe bene- fits, including medical, hospital, accident,life insurance, A. Achievement of past and present goals and timetables pension and retirement benefits, profit sharing and bonus Is the contractor meeting the current goals and time- plan, credit union benefits, or leave which violate current tables? Did he meet previous goals and timetables? If not, OFCC regulations? Are the same benefits made available determine from the contractor his assessment of why the for the wives and families of male employees also made goals were not achieved. Pursue what you deem to be neces- available for the husbands and families of female employ- sary changes for future success in meeting goals. If the con- ees? Does the contractor specify any differences on the tractor is not meeting the current goals and timetables or if basis of sex in either mandatory or optional retirement age? the contractor did not meet the previous goals and time- tables, a determination of good faith must be made and XI. Training and Educational Opportunities the determination will be based upon his efforts to broaden his recruitment and promotion base. See B(2) below. A. Internal (1) Review the contractor's data on training that has B. Establishment of present and future goals and time- occurred over the past year. Indicate the participation by tables total, male, female, male and female minority classifications (I) Specific goals and timetables are to he established and show the training participating rate for each group. If separately for minorities and women considering the factors the number of applicants in the last year was less than 100, cited in Order 4 and based on the contractor's analysis. your analysis should include all such applicants. If the num- In establishing timetables the contractor must consider the ber of applicants in the last year was more than 100, your anticipated expansion, contraction and turnover of and in analysis should include a sample of 10 percent of such ap- the workforce. This would include a review of anticipated plicants or 100 whichever is greater. Include employees vacancies in the major job groupings for the next year and

TEXTS OF REGULATIONS 107 111 any other pertinent period related to the affirmative action positive affirmative action, as pointed out by the review. program. The affirmative action program mustappear as an exhibit (a) A goal must be established for each jobgroup in to this report. Determination of good faith effort should be which underutilization exists and must be designed tocom- made which shall include but not be limited to the fol- pletely correct the underutilization. The goal must be stated lowing: as a percentage of the total employees in the job group and must be equal to the percentage of minorities or women (a) Notification to the community organizations that the available for work in the job group in accordance withthe contractor has employment opportunities available and criteria set forth in 41 CFR 60-2.11. maintenance of records regarding the organizations're- A single goal for minorities is acceptable, unlessthrough sponse. the company's evaluation it is determined thatone minority (b) Maintenance of a file of the names and addressesof is underutilized in a substantially disparate manner, in each minority or female worker referred to thecontractor which case separate goals and timetables for such minority and what action was taken with respect to each suchre- groups may be required individually, and it may further be ferred worker. required, where appropriate, that separate goals be estab- (c) Participation in training programs in thearea. Full lished within the minority groups by sex. (See Order 4, consideration of the training which the contractorcan 60-2.12(k).) reasonably undertake. (b) For each job group in which underutilization exists, (d) Dissemination of the contractor's EEO policy, by a specific timetable must be established for reaching the including it in any policy manual; by publicizing it incom- ultimate goal in the minimum feasible time period. pany or union newspapers, annual report, etc.; by conduct- (c) For each job group in which underutilization exists, ing meetings to explain and discuss the policy; by posting the contractor must establish annual rates of hiring and/or of the policy; and by specific review of the policywith promoting minorities and women until the ultimate goal minority and female employees. is reached. These rates should be the maximumrates that (e) Dissemination of the EEO policy externally by in- can be achieved through putting forth every good faith forming and discussing it with all recruitmentsources; by effort, including the use of available recruitment and train- advertising in news media, specifically including minority ing facilities, and must not he lower than the percentage news media; and by notifying and discussing it with all con- rate set in the ultimate goal. Numerical goals based on tractors and subcontractors. projected openings are required but cannot he usedin (f) Specific and constant personal (both written and place of percentage goals. Goals should be stated bothas oral) recruitment efforts directed at all minority and female actual numbers and as percentages for backup goals. That organizations, schools with minority and female students, is, a contractor may establish a goal of 10 women basedon minority and female recruitment organizations, and train- an expected 20 vacancies for hires or promotions. But his ing organizations, within the contractor's recruitmentarea. expected vacancies may vary. So he should also give aper- (g) Specific efforts to encourage present minority and centage goal (e.g., 50% of hires) which would apply if female employees to make referralsinthe recruitment opportunities exceed his current estimates. effort. (d) Each program must contain specific and detailed (h )Validation of all worker specifications, selectionre- action oriented programs, including recruitment and train- quirements, tests, etc., as required by the Testing and Se- ing programs, which comply with Revised Order 4. These lection Order 41 CFR § 60-3. programs must, among other required ingredients, commit (i) Making every effort to provide after-school,summer the contractor to undertake every good faith effort tocon- and vacation employment to minority youths. tact and make use of relevant recruitment and training re- (j) Where reasonable, the development of on-the-job sources available inthe community and to use its own training opportunities and participation and assistance in resources for recruiting and training minorities and women any association or group training programs relevant to the to fill positions in job groups where underutilization exists. contractor's needs. Data regarding promotable employees, community training (k) Continuing inventory and evaluation of all minority facilities and company training facilities must be prepared and female personnel for promotion opportunities anden- by the company itself, and related to the locality. couragement of minority and female employees to seek (2) How many of these jobs will he filled through up- such opportunities. grading? In considering the current workforce, turnover, (I) Assuring that seniority practices, job classifications, and deficiencies identified, are the contractor's goals reason- etc., do not have a discriminatory effect. able and will they achieve prompt and full utilization of (ni) Assuring that all facilities and activitiesare non- minorities and women? Is there evidence that the contrac- segregated. tor is considering minorities and women not in the work- (n) Continual monitoring of all personnel activities to force? Make specificsuggestions for affirmative action ensure that its EEO policy is being carried out. based on problem areas and on areas previously lacking in (o) All other sections of Subpart C of Order 4 (41 CFR

108 THE CONFERENCE BOARD 60-2.20, 21, 22, 23, 24, and 25) and the OFCC Sex Dis- Sec. 60-40.2.Information Available on Request.(a) crimination Guidelinesat 41CFR Part 60-20. Upon the request of any person for identitkhle records ob- tained or generated pursuant to Executive Order 11246 (as XIII. Religious and National Origin Discrimination amended) such records shall he made available for inspec- Refer to the regulations (41 CFR 60-50). Has the con- tion and copying, notwithstanding the applicability of the tractor reviewed his practices to determine whether mem- exemption from mandatory disclosure set forth in 5 U.S.C. bers of religious and/or ethnic groups are receiving fair 552 subsection (h), if it is determined that the requested consideration for job opportunities? Describe the outreach inspection or copying furthers the public interest and does and positive recruitment activities undertaken by the con- not impede any of the functions of the OFCC or the Com- tractor to remedy problems identified. (See 41 CFR 60- pliance Agencies except in the case of records disclosure 50.2(b).) Describe any accommodation made by the con- of which is prohibited by law. tractor to the religious observances and practices of an em- (b) Consistent with the above, all contract compliance ployee or prospective employee. When such situations exist, documents within the custody of the OFCC and the Com- if the contractor has not made such accommodation, de- pliance Agencies shall be disclosed upon request unless spe- scribe the contractor's rationale including, atleast:(a) cifically prohibited by law or as limited elsewhere herein. business necessity, (b) financial costs and expenses, and The types of documents which if in the custody of the (c) resulting personnel policies. OFCC or Compliance Agencies must he disclosed include, but are not limited to, the following: OFCC: Examination and Copying of (1) Affirmative action plans, whether or not reviewed OFCC Documents and finally accepted by the OFCC or the Compliance Agen- cies except as limited in 41 CFR 60- 40.3(a) (I). Following is the text of OFCC regulations governing the (2) Imposed plans and hometown plans, pending or ap- examination and copying of OFCC documents. Codified as proved. Title 41. Ch. 60, part 60-40 of the U.S. Code of Federal (3) Text of final conciliation agreements. Regulations. tl regulations read as last amended. effective Jan. 23. 1973. (4) Validation studies of tests or other preemployment Table of Contents selection methods. Subpart AGeneral (5) Dates and times of scheduled compliance reviews. Section Paragraph 60-40.1 Purpose and Scope 4343.01 Sec. 60.40.3.Information Exempt from Compulsory 60.-40.2 Information Available on Request 4343.02 Disclosure and Which May Be Withheld.(a) The follow- 60-40.3 Information Exempt from Compulsory ing documents or parts thereof are exempt from manda- Disclosure and Which May Be Withheld4343.03 tory disclosure by the OFCC and the compliance agencies, 60-40.4 Information Disclosure of Which is and should he withheld if it is determined that the request- Prohibited by Law 4343.04 ed inspection or copying does not further the public interest Subpar' BProcedures for Disclosure and might impede the discharge of any of the functions of 60-40.5 Applicability of Procedures 4343.05 the OFCC or the Compliance Agencies. 60-40.6 To Whom to Direct Requests 4343.06 ( 1 ) Those portions of affirmative action plans such as 60-40.7 Partial Disclosure 4343.07 goals and timetables which would be confidential commer- 60-40.8 Facilities and Procedures for Disclosure 4343.08 cial or financial information because they indicate, and Section 60-40.1.Purpose and Scope.This part con- only to the extent that they indicate, that a contractor plans tains the general rules of the OFCC providing for public major shifts or changes in his personnel requirements and access to information from records of the OFCC or its he has not made this information available to the public. various compliance agencies. These regulations implement A determination by an agency to withhold this type of 5 U.S.C. 552, the Freedom of Information Act and supple- information should he made only after receiving verifica- ment the policy and regulations of the Department of tion and a satisfactory explanation from the contractor that Labor, 29 CFR Part 70. Itis the policy of the OFCC to the information should he withheld. disclose information to the public and to cooperate with (2) Those portions of affirmative action plans which other public agencies as well as private parties seeking to constitute information on staffing patterns and pay scales eliminate discriminationin employment. This partsets but only to the extent that their release would injure the forth generally the categories of records accessible to the business or financial position of the contractor, would con- public, the types of records subject to prohibitions or re- stitute a release of confidential financial information of an strictions on disclosure, and the places at which the pro- employee or would constitute an unwarranted invasion of cedures whereby members of the public may obtain access the privacy of an employee. to and inspect and copy information from records in the (3) The names of individual complainants. custody of theOFCCand the compliance agencies. (4) The assignments to particular contractors of named

TEXTS OF REGULATIONS 109 113 compliance officers if such disclosure would subject the agency designated as the appropriate Compliance Agency named compliance officers to undue harassment or would for the industry to which the records pertain,pursuant to affect the efficient enforcement of theExecutive order. 41 CFR 60-1.3(d). If the person making therequest does (5) Compliance investigation files includingthe standard not know in which Compliance Agency the record is lo- compliance review report and related documents,during cated, he may direct his request to the Director, the course of the review to which they Office of pertain or while Federal Contract Compliance, Department ofLabor, 14th enforcement action against the contractor is in progress or and Constitution Avenue, N.W., Washington, D.C.20210, contemplated within a reasonable time.Thereafter, these for appropriate handling. reports and related files shall not be disclosed onlyto the extent that information contained therein constitutes trade Sec. 60-40.7.Partial Disclosure.Ifa requested record secrets and confidential commercial or financial informa- contains some materials which are protected from tion, inter-agency or intra-agency memoranda disclos- or letters ure and other materials which are not so protected, identi- which would not he available by law to a private party in fying details or protected matters shall be deleted litigation with the agency, personnel and wherever medical files and analysis indicates that such deletionsare feasible. Whenever similar files the disclosure of which would constitute a such deletions are made, the remainder of therecords may clearly unwarranted invasion of personalprivacy, data he disclosed. which would be exempt from mandatorydisclosure pur- suant to the "informants privilege" or such informationthe Sec. 60-40.8.Facilities and Procedures for Disclosure. disclosure of which is prohibited by statute. (a) Procedural matters suchas where the information (6) Copies of preemployment selectiontests used by may be inspected, forms of requests, time for reply contractors. to re- quests, forms of denials, appeals from denials, and (b) Other records may he withheld consistent fees with the for special services and copying services, shall hecontrolled Freedom of Information Act ona case-by-case basis, with by the general regulations of the custodialagency except to the prior approval of the Director, OFCC. the extent :nodified herein. (b) Proceu.,res relating to the availability Sec.60-40.4. of records in InformationDisclosureof WhichIs the custody of the OFCC shall be governed by Prohibited by the Depart- Law.The Standard Form 100 (EEO-1) ment of Labor regulations, 29 CFR 40.35 to 29 CFR 70.64. which is submitted by contractors to the OFCC,a compli- (c) Copies of all requests for disclosure of ance agency or a Joint Reporting Committee servicing both information made directly to the Compliance Agencies shallbe sub- the OFCC and the EEOC shall be disclosed pending further mitted to the OFCC within 5 calendar days ofreceipt. The instruction from the Director, OFCC. Thestatutory pro- compliance agencies shall thereafter allow 5 workingdays hibition on disclosure set forth in Section 709(e)of the from the time the request is submitted Civil Rights Act of 1964 is limited by the to the OFCC for terms of that comment by the OFCC. Delay by the OFCCmay be section to information obtained pursuantto the authority waived at the request of the compliance of title VII of that Act and its disclosure by agency. employees of (d) The Compliance Agencies shall furnish the EEOC. the OFCC with copies of all initial actions by theagencies granting or denying a request for information. The OFCC shall be Subpart BProcedures for Disclosure given an opportunity by the ComplianceAgencies to con- sult on all appeals from initial decisionsdenying requests Sec. 60-40.5.Applicability of Procedures.Requests for information. for the inspection and copy of informationfrom records in the custody of the OFCCor the Compliance Agencies which are identifiable and available under theprovisions of Nondiscrimination on the Subpart A of this part shall be made and actedupon as Basis of Sex provided in the following sections of this subpart.Officers and employees of the OFCC and the Compliance Agencies (The following is the text of the regulationsissued by are authorized by the Director, OFCC to continue to fur- the Department of Health, Education, andWelfare under nish to the public, informally and without compliance with Title IX of the Educational Amendments of1972. The reg- these procedures, information and copies from its records ulations became effective July 21, 1975. Thefull text has which prior to the enactment of the Freedom of Informa- been provided. including the subparts relatingto student tion Act (5 U.S.C. 552) were customarily furnished in the admission and recruitment and to studentparticipation in regular performance of their duties. education programs and activitiesas well as the subpart relating to employment. Implementation ofthese regula- Sec. 60-40.6.To Whom to Direct Requests.A request tions is expected to affect the available supplyof women for contract compliance records or information shall bedi- qualified to perform many different kindsof jobs in all rected to the Director of Contract Complianceof the sectors of the economy.)

110 THE CONFERENCE BOARD 114 PART 86-NONDISCRIMINATION ON THE BASIS OF 86.56 Fringe benefits. SEX UNDER FEDERALLY ASSISTED EDUCATION 86.57 Marital or parental status. PROGRAMS AND ACTIVITIES 86.58 Effect of State or local law or other requirements. 86.59 Advertising. Subpart A-Introduction 86.60 Pre-employment inquiries. Sec. 86.61 Sex as bona-fide occupational qualification. 86.1 Purpose and effective date. 86.62-86.70 [Reserved]. 86.2 Definitions. 86.3 Remedial and affirmative action and self-evaluation. Subpart F- Procedures 86.4Assurance required. 86.5 Transfers of property. 86.71 Interim procedures. 86.6Effect of other requirements. 86.7Effect of employment opportunities. Subpart A-Introduction 86.8Designation of responsible employee and adoption of grievance procedures. 86.1Purpose and effective date. 86.9 Dissemination of policy. The purpose of this part is to effectuate title IX of the Subpart B-Coverage Education Amendments of 1972, as amended by Pub. L. 86.11 Application. 93-568, 88 Stat. 1855 (except sections 904 and 906 of 86.12 Educational institutions controlled by religious organiza- those Amendments) which is designed to eliminate (with tions. certain exceptions) discrimination on the basis of sex in 86.13 Military and merchant marine educational institutions. any education program or activity receiving Federal finan- 86.14 Membership practices of certain organizations. cial assistance, whether or not such program or activity 86.15 Admissions. is offered or sponsored by an educational institutionas de- 86.16 Educational institutions eligible to submit transition plans. fined in this part. This part is also intended to effectuate 86.17 Transition plans. 86.18-86.20 [Reserved], section 844 of the Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484. The effective date of thispart Subpart C-Discrimination on the Basis of Sex in shall be July 21. 1975. Admission and Recruitment Prohibited 86.21 Admission. (Secs. 901. 902. Education Amendments of 1972. 86 Stat. 373. 86.22 Preference in admission. 374: 20 U.S.C. 1681. 1682. as amended by Pub. 1.. 93-568, 88 86.23 Recruitment. Stat. 1855. and Sec. 844, Education Amendments of 1974. 88 86.24-86.30 [Reserved]. Stat. 484, Pub. L. 93-380) 86.2 RUI.ES AND REGULATIONS Definitions. Subpart D-Discrimination on the Basis of Sex in As used in this part, the term- Education Programs and Activities Prohibited (a) "Title 1X" means title IX of the Education Amend- Sec. ments of 1972. Pub. L. 92-318, as amended by section 3 86.31 Education programs anti activities. of Pub. L. 93-568, 88 Stat. 1855, excepts 904 and 906 86.32 Housing. thereof; 20 U.S.C. §§168I, 1682, 1683, 1685, 1686. 86.33 Comparable facilities. (b) "Department" means the Department of Health, Ed- 86.34 Access to course offerings. ucation, and Welfare. 86.35 Access to schools operated by L.E.A.s. (c) "Secretary" means the Secretary of Health, Educa- 86.36 Counseling and use of appraisal and counseling materials. tion, and Welfare. 86.37 Financial assistance. 86.38 Employment assistance to students. (d) "Director" means the Director of the Office for 86.39 Health and insurance benefits and 'services. Civil Rights of the Department. 86.40 Marital or parental status. (e) "Reviewing Authority" means that component of the 86.41 Athletics. Department delegated authority by the Secretary to ap- 86.42 Textbooks and curricular material. point, and to review the decisions of, administrative law 86.43-86.50 [Reserved]. judges in cases arising under this Part. (f)"Administrative law judge" means a person ap- Subpart E--Discrimination on the Basis of Sex in Employment pointed by the reviewing authority to preside over a hear- in Education Programs and Activities Prohibited ing held under this Part. (g) "Federal financial assistance" means any of the fol- 86.51 Employment. lowing, when authorized or extended under a law adminis- 86.52 Employment criteria. tered by the Department : 86.53 Recruitment. 86.54 Compensation. (1) A grant or loan of Federal financial assistance, in- 86.55 Job classification and structure. cluding funds made available for:

TEXTS OF REGULATIONS 111

-AL r-it) (1) The acquisition, construction, renovation, restora- (3) Awards no degree and offers no further academic tion, or repair of a building or facilityor any portion there- study, but operates ordinarily for the purpose of facilitating of; and research by persons who have received the highest graduate (ii) Scholarships, loans, grants, wagesor other funds degree in any field of study. extended to any entity for payment to or on behalf of (I)"Institutionof undergraduate higher educati, ,?" students admitted to that entity, or extended directlyto means: such students for payment to that entity. (1) An institution offering at least two but less than I.,- (2) A grant of Federal real or personal propertyor any interest therein, including surplus property, and the years of college level study beyond the high school lev..;, proceeds of the sale or transfer of such property, if the leading to a diploma or an associate degree, or whollyor Federal share of the fair market value of the property is principally creditable toward a baccalaureate degree; or not, upon such sale or transfer, properly accounted for to (2) An institution offering academic study leading toa the Federal Government. baccalaureate degree; or (3) Provision of the services of Federal personnel. (3) An agency or body which certifies credentials or (4) Sale or lease of Federal property or any interest offers degrees, but which may or may not offer academic study. therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition (m 1"Institution of professional education"means an of public interest to he served thereby, or permissionto use institution (except any institution of undergraduate higher Federal property or any interest therein without considera- education) which offers a program of academic study that tion. leads to a first professional degree in a field for which there (5) Any other contract, agreement, or arrangement is a national specialized accrediting agency recognized by which has as one of its purposes the provision of assistance the United States Commissioner of Education. to any education program or activity, except a contract of (n)"Institution of vocational education"means a school insurance or guaranty. or institution(except aninstitutionof professional or (h) "Recipient" means any State or political subdivision graduate or undergraduate higher education) which has thereof, or any instrumentality of a State or political sub- as its primary purpose preparation of students to pursue a division thereof, any public or private agency, institution, technical, skilled, or semiskilled occupation or trade,or to or organization, or other entity, or any person, to whom pursue study in a technical field, whether or not the school Federal financial assistance is extended directlyor through or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study. another recipient and which operates an educationprogram or activity which receives or benefits from such assistance, (o)"Administratively separate unit"means a school, including any subunit, successor, assignee, or transferee department or college of an educational institution (other thereof. than a local educational agency) admission to which is (i) "Applicant" means one who submits an application, independent of admission to any other component of such institution. request, or plan required to he approved by a Department official, or by a recipient, as a condition to becominga re- ( p) "Admission" means selection for part-time, full-time, cipient. special, associate, transfer, exchange, orany other enroll- ment, membership, or matriculation in or at an education (j)"Educational institution"means a local educational program or activity operated by a recipient. agency (I..E.A.) as defined by section 801(f) of the Ele- mentary and Secondary Education Act of 1965 (20 U.S.C. (q) "Student" means a person who has gained admission. 881), apreschool,aprivateelementary or secondary (r)"Transition plan"means a plan subject to the ap- school, or an applicant or recipient of the type defined by proval of the United States Commisioner of Educationpur- paragraph (k), (1). (m), or (n) of this section. suant to section 901(a) (21 of the Education Amendments of 1972, under which an educational institution operates in (k)"Institution of graduate higher education"means an institution which: making the transition from being an educational institution which admits only students of one sex to being one which (11 Offers academic study beyond the bachelor of arts admits students of both sexes without discrimination. or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sci- (Secs. 901. 902, Education Amendments of 1972. 86 Stat. ences; or 373. 37-1: 20 U.S.C. 1681. 1682) (21 Awards any degree in a professional field beyond the § 86.3Remedial and affirmative action and self- first professional degree (regardless of whether the first pro- evaluation. fessional degree in such field is awarded by an institution of undergraduate higher education or professional educa- (a)Remedial action.if the Director finds that a recipi- tion); or ent has discriminated against persons on the basis of sex in

THE CONFERENCE BOARD

11 6 an education program or activity, such recipient shall take are used to provide an education program or activity. such remedial action as the Director deems necessary to (2) In the case of Federal financial assistance extended overcome the effects of such discrimination. to provide personal property, such assurance shall obligate (b) Affirmative action. In the absence of a finding of the recipient for the period during which it retains owner- discrimination on the basis of sex in an education program ship or possession of the property, or activity,a recipient may take affirmative action to (3) In all other cases such assurance shall obligate the overcome the effects of conditions which resulted in limited recipient for the period during which Federal financialas- participation therein by persons of a particular sex. Nothing sistance is extended. herein shall he interpreted to alter any affirmative action (c)Form.The Director will specify the form of the obligations which a recipient may have under Executive assurances required by paragraph (a) of this section and Order 11246. the extent to which such assurances will he required of (c)Self-evaluation.Each recipient education institution the applicant's or recipient's subgrantees, contractors, sub- shall, within one year of the effective date of this part: contractors, transferees, or successors in interest. (i) Evaluate, in terms of the requirements of this part, its current policies and practices and the effects thereof (Secs. 901. 902. Education Amendments of 1972, 86 Stat. concerning admission of students, treatment of students, 373, 374; 20 U.S.C. 1681. 16821 and employment of both academic and non-academic per- § 86.5 sonnel working in connection with the recipient's education Transfers of property. program or activity; Ifarecipientsellsor otherwisetransfersproperty (ii) Modify any of these policies and practices which do financed in whole or in part with Federal financial assist- not or may not meet the requirements of this part; and ance to a transferee which operates any education program (iii) Take appropriate remedial steps to eliminate the or activity, and the Federal share of the fair market value effects of any discrimination which resulted or may have of the property is not upon such sale or transfer properly resulted from adherence to these policies and practices. accounted for to the Federal Government both the trans- (d) Availability of self-evaluation and related materials. feror and the transferee shall be deemed to he recipients, Recipients shall maintain on file for at least three years fol- subject to the provisions of SubpartB. lowing competition of the evaluation required under para- graph (c) of this section, and shall provide to the Director (Secs. 901, 902, Education Amendments of 1972. 86 Stat. upon request, a description of any modifications made pur- 373. 374: 20 U.S.C. 1681. 16821 suant to subparagraph (c) (ii) and of any remedial steps taken pursuant to subparagraph (c) (iii). § 86.6Effect of other requirements.

(Secs. 901. 902. Education Amendments of 1972. 86 Stat. (a) Effect of other Federal provisions.The obligations 373, 374: 20 U.S.C. 1681. 1682) imposed by this part are independent of, and do not alter, obligations not to discriminate on the basis of sex im- § 86.4Assurance required. posed by Executive Order 11246, as amended; sections (a) General.Every application for Federal financial assist- 799A and 845 of the Public Health Service Act (42 U.S.C. ance for any education program or activity shall as condi- 295h-9 and 298b -2): Title VII of the Civil Rights Act of tion of its approval contain or be accompanied by an assur- 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act (29 ance from the applicant or recipient, satisfactory to the U.S.C. 206 and 206(d): and any other Act of Congress or Director, that each education program or activity operated Federal regulation. by the applicant or recipient and to which this part applies (Secs. 901. 902. 905. Education Amendments of 1972. 86 will be operated in compliance with this part. An assurance Stat. 373. 374. 375: 20 U.S.C. 1681. 1682. 16851 of compliance with this part shall not be satisfactory to the Director if the applicant or recipient to whom such as- (h)Effect of State or local law or other requirements. surance applies fails to commit itself to take whatever The obligation to comply with this part is not obviated or remedial action is necessary in accordance with 86.3(a) alleviated by any State or local law or otherreqUi"ement to eliminate existing discrimination on the basis of sex or to which would render any applicant or student ineligit,:rz, or eliminate the effects of past discrimination whether occur- limit the eligibility of any applicant or student, on the ring prior or subsequent to the submission to the Director basis of sex, to practice any occupation or profession. of such assurance. (c) Effect of rules or regulations of private organiza- (h)Duration of obligation.(1) In the case of Federal tions.The obligation to comply with this part is not obvi- financial assistance extended to provide real property or ated or alleviated by any rule or regulation of any organiza- structures thereon. such assurance shall obligate the recipi- tion, club. athletic or other league, or association which ent or. in the case of a subsequent transfer. the transferee. would render any applicant or student ineligible to partici- for the period during which the real property or structures pate or limit the eligibility or participation of any applicant

TEXTS OF REGULATIONS 113

I-- or student, on the basis of sex, in any education program or unless Subpart C does not apply to the recipient, andthat activity operated by a recipient and which receivesor ben- inquiries concerning the application of title IX and this efits from Federal financial assistance. part to such recipient may be referred to the employee de- (Secs. 901,902. Education Amendments of 1972. 86 Stat. signated pursuant to § 86.8; or to the Director. 373. 374: 20 U.S.C. 1681. 1682) (2) Each recipient shall make the initial notificationre- quired by paragraph (a) (1) of this section within 90days It86.7Effect of employment opportunities. of the effective date of this partor of the date this part first applies to such recipient, whichevercomes later, which The obligation to comply with this Part isnot obviated notification shall include publication in:(i) Local news- or alleviated because employment opportunities inany oc- papers; (ii) newspapers and magazines operated by such cupation or profession are or may bemore limited for recipient or by student, alumnae, or alumnigroups for or in members of one sex than for members of the othersex. connection with such recipient; and (iii) memorandaor other written communicationsdistributed toevery student (Secs. 901. 902. Education Amendments of 1972. 86Stat. 373. 374: 20 U.S.C. 1681. 1682) and employee of such recipient. (b)Publications.(1) Each recipient shall prominently § 86.8Designation of responsible employee and adoption include a statement of the policy described in paragraph(a) of grievance procedures. of this section in each announcement, bulletin, catalog,or application form which it makes available toany person of (a) Designation of responsible employee.Each recipient a type described in paragraph (a) of this section, or which shall designate at least one employeeto coordinate its ef- is otherwise used in connection with the recruitment ofstu- forts to comply with and carry out its responsibilitiesunder dents or employees. this part, including any investigation ofany complaint com- (2) A recipient shall not use or distributea publication municated to such recipient alleging its noncompliancewith of the type described in this paragraph whichsuggests, by this part or alleging any actions which would beprohibited text or illustration, that such recipient treats applicants, by this part. The recipient shall notify all itsstudents and students, or employees differentlyon the basis of sex except employees of the name, office address and telephonenum- as such treatment is permitted by this part. ber of the employee or employees appointedpursuant to (c)Distribution.Each recipient shall distribute without this paragraph. discrimination on the basis of sex each publicationde- (b) Complaint procedure of recipient.A recipient shall scribed in paragraph (b) of this section, and shallapprise adopt and publish grievance proceduresprovidingfor each of its admission and employment recruitmentrepre- prompt and equitable resolution of student and employee sentatives of the policy of nondiscrimination describedin complaints alleging any action which would be prohibited paragraph (a) of this section, and require suchrepresenta- by this part. tives to adhere to such policy.

(Secs. 901, 902. Education Amendments of 1972.86 Stat. (Secs. 901.902. Education Amendments of 1972. 86 Stat. 377 374: 20 U.S.C. 1681. 1682) 373. 374; 20 U.S.C. 1681. 1682)

§ 86.9Dissemination of policy. Subpart BCoverage

(a) Notification of policy. (1)Each recipient shall im- § 86.11Application. plement specific and continuing steps to notify applicants for admission and employment, students andparents of Except as provided in this subpart, this Part 86 appliesto elementary and secondary schoolstudents,employees. every recipient and to each education program or activity sources of referral of applicants for admission and employ- operated by such recipient which receivesor benefits from ment, and all unions or professional organizations holding Federal financial assistance. collective bargaining or professional agreements withthe recipient, that it does not discriminateon the basis of sex § 86.12Educational institutions controlled by religious in the educational programs or activities which itoperates, organizations. and that is required by title IX and thispart not to dis- criminate in such a manner. Such notification shallcontain (a) Application.This part does not apply to an educa- such information, and be made in suchmanner, as the Di- tional institution which is controlled bya religious organi- rector finds necessary to apprise such persons of thepro- zation to the extent application of this part wouldnot be tections against discrimination assured them bytitle IX consistent with the religious tenets of such organization. and this part, but shall state at least that the requirement (b)Exemption.An educational institution which wishes not to discriminate in education programs and activities to claim the exemption set forth in paragraph (a) of this extends to employment therein, and to admissionthereto section, shall do so by submitting in writing to the Director

114 THE CONFERENCE BOARD a statement by the highest ranking othciai of the institution, tional institutions, Subpart C applies only to institutions identifying the provisions of this part which conflict witha of vocational education, professional education, graduate specific tenet of the religious organization. higher education, and public institutions of undergraduate (Secs. 901, 902, Education Amendments of 1972. 86 Stat. higher education. 373, 374; 20 U.S.C. 1681, 1682) (e) Public institutions of undergraduate higher education. Subpart C does not apply to any public institution ofun- § 86.13Military and merchant marine educational insti- dergraduate higher education which traditionally and con- tutions. tinually from its establishment has had a policy of admit- ting only students of one sex. This part does not apply to an educational institution (Secs. 901, 902, Education Amendments of 1972, 86 Stat. whose primary purpose is the training of individuals for 373, 374; 20 U.S.C. 1681, 1682) a military service of the United States or for the merchant marine. 14 86.16 Educational institutions eligible to submit trans- (Secs. 901, 902. Education Amendments of 1972, 86 Stat. ition plans. 373, 374: 20 U.S.C. 1681. 1682) (a) Application. This section applies to each educational ti 86.14Membership practices of certain organizations. institution to which Subpart C applies which: (1) Admitted only students of one sex as regular stu- (a) Social fraternities and sororities. This part does not dents as of June 23, 1972: or apply to the membership practices of social fraternities and (2) Admitted only students of one sex as regular stu- sororities which are exempt from taxation under Section dents as of June 23, 1965, but thereafter admitted as regu- 501(a) of the Internal Revenue Code of 1954, the active lar students, students of the sex not admitted prior to June membership of which consists primarily of students in 23, 1965. attendance at institutions of higher education. (b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp (h) Provision for transition plans. An educational insti- Fire Girls. This part does not apply to the membership tution to which this section applies shall not discriminate practices of the Young Men's Christian Association, the on the basis of sex in admission or recruitment in violation Young Women's Christian Association, the Girl Scouts, the of Subpart C unless it is carrying out a transition plan ap- Boy Scouts and Camp Fire Girls. proved by the United States Commissioner of Education (c)Voluntary youth service organizations. This part as described in § 86.17, which plan provides for the elimi- does not apply to the membership practices of voluntary nation of such discrimination by the earliest practicable youth service organizations which are exempt from taxa- date but in no event later than June 23, 1979. tion under Section 501(a) of the Internal Revenue Code of (Secs. 901. 902. Education Amendments of 1972. 86 Stat. 1954 and the membership of which has been traditionally 373. 374: 20 U.S.C. 1681. 1682) limited to members of one sex and principally to persons of less than nineteen years of age. § 86.17Transition plans.

(Secs. 901, 902. Education Amendments of 1972. 86 Stat. (a) 5uhmission of plans. An institution to which § 86.15 373. 374: 20 U.S.C. 1681. 1682: Sec. 3(a) of Pl.. 93-568. 88 Stat. 1862. amending Sec. 901) applies and which is composed of more than one adminis- tratively separate unit may submit either a single transition § 86.15Admissions. plan applicable to all such units, or a separate transition plan applicable to each such unit. (a) Admissions to educational institutions prior to June (h) Content of plans. In order to he approved by the 24, 1973, are not covered by this part. United States Commissioner of Education, a transition plan (b) Administratively separate units. For the purposes shall: only of this section, §§ 86.15 and 86.16, and Subpart C, (1) State the name, address, and Federal Interagency each administratively separate unit shall he deemed to he Committee on Eaucation (FICE) Code of the educational an educational institution. institution submitting such plan, the administratively sep- (c) Application of Subpart C. Except as provided in arate units to which the plan is applicable, and the name, paragraphs (c) and (d) of this section, Subpart C applies address. and telephone number of the person to whom to each recipient, A recipient to which Subpart C applies questions concerning the plan may he addressed. The per- shall not discriminate on the basis of sex in admission or son who submits the plan shall be the chief administrator recruitment in violation of that subpart. or president of the institution, or another individual legally (d) Educational institutions. Except as provided in para- authorized to bind the institution to all actions set forth in graph (e) of this section as to recipients which are educa- the plan.

TEXTS OF REGULATIONS 115 (2) State whether the educational institutionor adminis- (2) A recipient shall not administer or operate any test tratively separate unit admits students of bothsexes, as or other criterion for admission which has a disproportion- regular students and, if so, when it began to doso. ately adverse effect on persons on the basis ofsex unless (3) Identify and describe with respect to the educational the use of such test or criterion is shown to predict validly institution or administratively separate unitany obstacles success in the education program or activity in question to admitting students without discrimination on the basis and alternative tests or criteria which do not have sucha of sex. disproportionately adverse effect are shown to be unavail- (4) Describe in detail the steps necessaryto eliminate able. as soon as practicable each obstacle so identified and in- (c) Prohibitions relating to marital or parental status. In dicate the schedule for taking these steps and the individual determining whether a person satisfies any policy or cri- directly responsible for their implementation. terion for admission, or in making any offer of admission, (5) Include estimates of the number of students, bysex, a recipient to which this subpart applies: expected to apply for, he admitted to, and enter each class 111 Shall not apply any rule concerning the actual or during the period covered by the plan. potential parental, family, or marital status ofa student or (61 Nondiscrimination. No policy or practice ofa recip- applicant which treats persons differently on the basis of ient to which § 86.16 applies shall result in treatment of sex; applicants to or students of such recipient in violation of (21 Shall not discriminate against or exclude any person Subpart C unless such treatment is necessitated byan ob- on the basis of pregnancy, childbirth, termination of preg- stacle identifie,.in paragraph (b 1 (3) of this section and nancy, or recovery therefrom, or establish or follow any a schedule for eliminating that obstacle has been provided rule or practice which so discriminates or excludes: as required by paragraph (h) (4) of this section. (3) Shall treat disabilities related to pregnancy, child- (d) Effects of past exclusion. To overcome the effects of birth, termination of pregnancy. or recovery therefrom in past exclusion of students on the basis of sex, each educa- the same manner and under the same policiesas any other tional institution to which § 86.16 applies shall include in temporary disability or physical condition: and its transition plan, and shall implement, specificsteps de- (4) Shall not make pre-admission inquiry as to the mar- signed to encourage individuals of the previously excluded ital status of an applicant for admission, including whether sex to apply for admission to such institution. Such steps such applicant is "Miss- or "Mrs.- A recipientmay make shall include instituting recruitmentprograms which em- pre-admission inquiry as to the sex of an applicant for ad- phasize the institution's commitment to enrolling students mission. but only if such inquiry is made equally of such of the sex previously excluded. applicants of both sexes and if the results of such inquiry (Secs. 901. 902. Education Amendments of 1972. 86 Stat. are not used in connection with discrimination prohibited 373, 374: 20 U.S.C. 16.81. 16821 by this part. (Secs. 901. 902, Education Amendments of 1972. 86 Stat. § 86.18-86.20[Reserved) 373, 374: 20 U.S.C. 1681. 1682 1

Subpart CDiscrimination on the Bask of Sex in fi Admission and Recruitment Prohibited 86.22Preference in admission. A recipient to which this subpart applies shall not give ti 86.21Admission. preference to applicants for admission, on the basis ofat- tendance at any educational institution or other school (a) General. No person shall, on the basis ofsex, be or denied admission, or he subjected to discrimination in ad- entity which admits as students [only]or predominantly mission. by any recipient to which this subpart applies, members of one sex, if the giving of such preference has except as provided in §§ 86.16 and 86.17. the effect of discriminating on the basis ofsex in violation of this subpart. (b) Specific prohibitions.( 11 In determining whether a person satisfies any policy or criterion for admission, or in ( Sees. 901. 902. Education Amendments of 1972. 86 Stat. making any offer of admission, a recipient to which this 373, 374: 20 U.S.C. 1681. 1682 ) Subpart applies shall not: ti86.23Recruitment. (i) Clive preference to one person over anotheron the bask of sex, by ranking applicants separatelyon such basis, (a) Nondiscriminatory recruitment. A recipient to which or otherwise: this subpart applies shall not discriminateon the basis of (ii) Apply numerical limitations upon the number or sex in the recruitment and admission of students. Are- proportion of persons of either sex who may he admitted: cipient may he required to undertake additional recruit- or ment efforts for one sex as remedial action pursuant to (iii) Otherwise treat one individual differently froman- 86.3(a ). and may choose to undertake such effortsas af- other on the basis of sex. firmative action pursuant to § 86.3(b).

116 THE CONFERENCE BOARD (h) Recruitment at certain institutions. A recipient to instruments, or by acts of foreign governments and re- which this subpart applies shall not recruit primarily or strictedto members of one sex, which are designed to exclusively at educational institutions, schools or entities provide opportunitiesto study abroad, and which are which admit as students only or predominantly members awarded to students who are already matriculating at or of one sex, if such actions have the effect of discriminating who are graduates of the recipient institution: Provided. a on the basis of sex in violation of this subpart. recipient educational institution which administers or as- (Secs. 901. 902. Education Amendments of 1972. 86 Stat. sists in the administration of such scholarships, fellowships, 373. 374: 20 U.S.C. 1681. 16821 or other awards which are restricted to members of one sex provides, or otherwise makes available reasonable oppor- 011 86.2486.30(Reserved! tunities for similar studies for members of the other sex. Such opportunities may he derived from either domestic Subpart DDiserimination on the Bask of Sex in Education or foreign sources. Programs and Activities Prohibited d) Programs not operated by recipient. (11 This para- graph applies to any recipient which requires participation ti86.31 Education programs and activities. by' any applicant, student, or employee in any education program or activity not operated wholly by such recipient, (a) General. Except as provided elsewhere in this part, or which facilitates, permits, or considers such participa- no person shall, on the basis of sex, he excluded from par- tion as part of or equivalent to an education program or ticipation in, he denied the benefits of, or he subjected to activity operated by such recipient. including participation discrimination under any academic, extracurricular,re- in educational consortia and cooperative employment and search, occupational training, or other education program student-teaching assignments. or activity operated by a recipient which receives or bene- (21 Such recipient: fits from Federal financial assistance. This subpart does not (i )Shall develop and implement a procedure designed apply to actions of a recipient in connection with admis- to assure itself that the operator or sponsor of such other sion of its students to an education program or activity education program or activity takes no action affecting any of (I) a recipient to which Subpart C does not apply, or applicant, student, or employee of such recipient which this (2) an entity, not a recipient, to which Subpart C would part would prohibit such recipient from taking: and not apply if the entity were a recipient. (ii)Shall not facilitate. require, permit. or consider such (b) Specific prohibitions. Except as provided in this sub- participation if such action occurs. part, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex: Sc. cs901. 902, Education Amendments of 1972. 86 Stat. (1) Treat one person differently from another in deter- 373. 374: 21) U.S.C. 1681. 168') mining whether such person satisfies any requirement or ti 86.32Housing. condition for the provision of such aid,.!..!nefit, or service: (21 Provide different aid. benefits, or services or pro- vide aid, benefits, or services in a different manner: (a) Generally. A recipient shall not, on the basis of sex, (3) Deny anperson any such aid, benefit, or service: apply different rules or regulations, impose different fees or ( 41 Subject any person to separate or different rules of requirements, or offer different services or benefits related behavior, sanctions, or other treatment: to housing, except as provided in this section (including (5) Discriminate against any person in the application housing provided only to married students). of any rules of appearance: (h) Housing provided by recipient. (1) A recipient may (61 Apply any rule concerning the domicile or residence provide separate housing on the basis of sex. of a student or applicant, including eligibility for in-state (2) Housing provided by a recipient to students of one fees and tuition: sex, when compared to that provided to students of the (7) Aid or perpetuate discrimination against any person other sex, shall he as a whole: by providing significant assistance to any agency, organiza- (i) Proportionate in quantity to the number of students tion, or person which discriminates on the bask of sex in of that sex applying for such housing: and providing any aid. benefit or service to students or em- (ii) Comparable in quality and cost to the student. ployees: (c) Other housing.(1 )A recipient shall not, on the ( S1 Otherwise limit any person in the enjoyment of any basis of sex, administer different policies or practices con- right, privilege, advantage. or opportunity. cerning occupancy by its students of housing other than ( .4.u/stance administered by a recipient educational provided by such recipient. institution to .stmly at a foreign in tjtution. A recipient edu- (2) A recipient which, through solicitation, listing, ap- cational institution may administer or assist in the adminis- proval of housing. or otherwise, assists any agency, organiza- tration of scholarships. fellowships, or other awards estab- tion, or person in making housing available to any of its lished by foreign or domestic wills. trusts, or similar legal students. shall take such reasonable action as may he neces-

TEXTS OF REGULATIONS 117 121 sary to assure itself that such housing as is provided to stu- (Sec. 901. 902. Education Amendments of 1972. 86 Stat. dents of one sex, when compared to that providedto stu- 373. 374: 20 U.S.C. 1681. 1682) dents of the other sex. is as a whole: (i) Proportionate in quantity and (ii) comparable in quality andcost to the stu- § 86.35 Access to schools operated by 1..E.A.s. dent. A recipient may render such assistanceto any agency. organization, or person which provides allor part of such A recipient which is a local educationalagency shall not. housing to students only of one sex. on the basis of sex, exclude any person from admissionto: (a) Any institution of vocational education operated (Secs. 901. 902. 907. Education Amendments of 1972. 86 by Stat. 373. 374. 375: 20 U.S.C. 1681. 1682. 1686) such recipient: or b) Any other school or educational unitoperated by 3:1 86.33 Comparable facilities. such recipient, unless such recipient otherwisemakes avail- able to such person. pursuant to thesame policies and A recipient may provide separate toilet, lockerroom, and criteria of admission, courses. services, andfacilities, com- shower facilities on the basis of sex. but such facilitiespro- parable to each course, service, and facilityoffered in or vided for students of one sex shall he comparableto such through such schools. facilities provided for students of the other sex. (Secs. 901. 902. Education Amendments of 1972.86 Stat. tSecs. 901. 9112. Education Amendments of 1972. 86 Stat. 373. 374 20 U.S.C. 1681. 1682) 373. 341 § 86.36Counseling and use of appraisal and counseling § 86,34Access to course offerings. materials. A recipient shall not provide any courseor otherwise carry out any of its education program or activity separate- la) Counseling. A recipient shall not discriminate against ly on the basis of sex. or require or refuse participation any person on the basis of sex in the counselingor guidance of students or applicants for admission. therein by any of itsstudents on such basis. including (b) Use of appraisal and counseling materials. health, physical education. industrial, business. vocational. A recip- ient which uses testing or other materials technical. home economics. mtisic, and adult education for appraising courses. or counseling students shall not use different materialsfor students on the basis of their la I With respect to classes and activities in physical edu- sex or use materials which permit or require different cation at the elementary school level. the recipient shall treatment of students on such basis unless such different materials comply fully with this section as expeditiouslyas possible cover the same occu- but in no event later than pations and interest areas and theuse of such different one year from the effective date materials is shown to he essential of thisregulation. With respect to eliminate sex bias. to physical education Recipients shall develop and classes and activities at the secondary and use internal procedures for post-secondary ensuring that such materials do levels. the recipient shall comply fully with this not discriminate on the section as basis of sex. Where the ti.se of expeditiously as possible but in no event later than a counseling test or other three instrument results in a substantially disproportionate years from the effective date of this regulation. num- ber of members of one sex in lb) This section does not prohibit grouping of students any particular course of study or classification, the recipient shalltake such action in physical education classes and activities byability as as is necessary to assure itself that such disproportionis assessed by objective standards of individualperformance not the result of discrimination in the instrumentor its developed and applied without regard tosex. application. (c) This section does not prohibit separation of students (el Disproportion in classes. Where by sex within physical education classes a recipient finds that or activities during a particular class contains a substanially disproportionate participation in wrestling, boxing. rugby, ice hockey. foot- number of individuals of one ball. basketball and other sports the sex, the recipient shall take purpose or major ac- such action as is necessary to tivity of which involves bodily assure itself that such dispro- contact. portion is not the result of discrimination ( d) Where use of a single standard of measuring skill on the basis of or sex in counseling or appraisal materials or by counselors. progress in a physical education class hasan adverse effect on members of one sex, the recipient shall use appropriate § 86,37Financial assistance. standards which do not have such effect. (e)Portions of classes in elementary and secondary (a) General. Except as provided in paragraphs(b). (e) schools which deal exclusively with humansexuality may and Id ) of this section. in providing financial be conducted in separate sessions for boys and girls. assistance to any of its students, a recipient shall not:( I) On the basis (f )Recipients may make requirements basedon vocal of sex. provide different amount or types of suchassistance. range or quality which may result in a chorusor choruses limit eligibility for such assistance wt,ich is ofany particu- of one or predominant one sex. lar type or source. apply different criteria,or otherwise

118 THE CONFERENCE BOARD 12 2 discriminate; (2) through solicitation,listing,approval, (1) Shall assure itself that such employment is made provision of facilities or other services, assist any founda- available without discrimination on the basis ofsex; and tion, trust, agency, organization, or person which provides (2) Shall not render such services to anyagency, or- assistance to any of such recipient's students ina manner ganization, or person which discriminateson the basis of which discriminates on the basis of sex;or (3) apply any sex in its employment practices. rule or assist in application of any rule concerning eligibility (b)Employment of students by recipients.A recipient for such assistance which treats persons ofone sex dif- which employs any of its students shall not doso in a ferently from persons of the other sex with regardto manner which violates Subpart E. marital or parental status. (b)Financial aid established by certain legal instruments. (Secs. 901. 902. Education Amendment. of 1972. 86 Stat. ( I )a recipient may administer or assist in the administra- 373. 374: 20 U.S.C. 1681, 1682) tion of scholarships, fellowships, or other forms of financial § 86.39Health and insurance benefits and services. assistance established pursuant to domesticor foreign wills, trusts, bequests, or similar legal instruments or by acts ofa In providing a medical, hospital, accident,or lifein- foreign government which requires that awards be madeto surance benefit, service, policy, or plan to any of its stu- members of a particular sex specified therein;Provided. dents, a recipient shall not discriminate on the basis ofsex, thatthe overall effect of the award of such sex-restricted or provide such benefit, service, policy, or plan in a man- scholarships, fellowships, and other forms of financialas- ner which would violate Subpart E if it were provided to sistance does not discriminate on the basis of sex. employees of the recipient. This section shall not prohibit (2) To ensure nondiscriminatory awards of assistanceas a recipient from providing any benefit or service which required in subparagraph (b) ( 1) of this paragraph. recip- may he used by a different proportion of students of one ients shat! develop and use procedures under which: sex than of the other, including family planning services. (i ) Students are selected for award of financial assistance However, any recipient which provides full coverage health on the basis of nondiscriminatory criteria and not onthe service shall provide gynecological care. basis of availability of funds restricted to members ofa particular sex; (Sees. 901. 902. Education Amendments of 1972. 86 Stat. 173, 374: 20 U.S.C. 1681. 1682) (ii) An appropriate sex-restricted scholarship, fellow- ship, or other form of financial assistance is allocatedto § 86.40Marital or parental status. cast student selected under subparagraph (h) (2) (i )of this paragraph; and (a)Status generally.A recipient shall not apply any rule (iii) No student is denied the award for which heor she concerning a student's actual or potential parental, family, was selected under subparagraph (b) (2)(i) of this para- or marital status which treats students differently on the graph because of the absence of a scholarship. fellowship. basis of sex. or other form of financial assistance designated for a mem- (b)Pregnancy and related conditions. (1 )A recipient ber of that student's sex. shall not discriminate against any student,or exclude any (c )Athletic scholarships.(I)To the extentthat a student from its education program or activity, including any class or extracurricular activity, on the basis of such re -ipient awards athletic scholarships or grants-in-aid,it must provide reasonable opportunities for such awards for student's pregnancy, childbirth, false pregnancy, termina- members of each sex in proportion to the number of stu- tion of pregnancy or recovery therefrom. unless the student dents of each sex participating in interscholasticor inter- requests voluntarily to participate in a separate portion of collegiate athletics. the program or activity of the recipient. (2) Separate athletic scholarships or grants-in-aid for (2) A recipient may require such a student to obtain the member. of each sex may he provided as part of separate certification of a physician that the student is physically and emotionally able to continue participation in thenor- athletic teams for members of each sex to the extentcon- sistent with this paragraph and ;586.41 of this part. mal education program or activity so long as sucha cer- tificationis required of all students for other physicalor (Secs. 901. 902. Education Amendment. of 1972. 86 Stat. emotional conditions requiring the attention of a physician. 373, 374: 20 U.S.C.1681.1682: and See. 844. Education (3) A recipient which operates a portion of it': education Amendments of 1974. Pub. L. 93-380. 88 Stat. 484 ) program or activity separately for pregnant students, admit- tance to which is completely voluntary on the part of the § 86.38Employment assistance to students. student as provided in paragraph (1,)(1) of this section shall ensure that the instructional program in theseparate (a) Assistance by recipient in waking available outside programiscomparable to thatofferedto non-pregnant employment.A recipient which assists any agency. organi- students. zation or person in making employment available toany of (4) A recipient shall treat pregnancy, childbirth, false its students: pregnancy, termination ,1 pregnancy and recovery there-

TEXTS OF REGULATIONS 119

19 0^ from in the same manner and under the same policies as (v) Opportunity to receive coaching and academic tu- any other temporary disability with respect to any medical toring; or hospital benefit, service, plan or policy which such re- (vi)Assignment and compensation of coaches and cipient administers, operates, offers, or participates in with tutors; respect to students admitted to the recipient's educational (vii) Provision of locker rooms, practice and competitive program or activity. facilities; (5) In the case of a recipient which does not maintain (viii)Provision of medical and training facilities and a leave policy for its students, or in the case of a student services; who does not otherwise qualify for leave under such a (ix) Provision of housing and dining facilities and serv- policy, a recipient shall treat pregnancy, childbirth, false ices; pregnancy, termination of pregnancy and recovery there- (x) Publicity. from as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the Unequal aggregate expenditures for members of each sex student's physician, at the conclusion of which the student or unequal expenditures for male and female teams if a shall be reinstated to the status which she held when the recipient operates or sponsors separate teams will not con- leave began. stitute noncompliance with this section, but the Director may consider the failure to provide necessary funds for (Secs. 901. 902. Education Amendments of 1972. 86 Stat. teams for one sex in assessing equality of opportunity for 373. 374: 20 U.S.C. 1681. 1682) members of each sex. (d)Adjustment period.A recipient which operates or 486.41Athletics. sponsors interscholastic, intercollegiate, club or intramural (a) General.No person shall, on the basis of sex, be athletics at the elementary school level shall comply fully excluded frqm participation in, be denied the benefits of, be with this section as expeditiously as possible but in no treated differently from another person or otherwise he event later than one year from the effective date of this discriminated against in any interscholastic, intercollegiate, regulation. A recipient which operates or sponsors inter- club or intramural athletics offered by recipient, and no scholastic, intercollegiate, club or intramural athletics at the recipient shall provide any such athletics separately on such secondary or post-secondary school level shall comply fully basis. with this section as expeditiously as possible but in no event later than three years from the effective date of this (b)Separate learns. Notwithstanding the requirements of regulation. paragraph (a) of this section, a recipient may operate or sponsor separate teams for membership of each sex where (Secs. 901. 902. Education Amendments of 1972,86 Stat. selection for such teams is based upon competitive skill or 373.374: 20 U.S.C.1681,1682; and Sec. 844, Education the activity involved is a contact sport. However, where a Amendments of 1974, Pub. L. 93-380, 88 Stat. 484) recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such §86.42Textbooks and curricular material. team for members of the other sex, and athletic opportuni- ties for members of that sex have previously been limited, Nothing in this regulation shall be interpreted as requir- members of the excluded sex must be allowed to try-out ing or prohibiting or abridging in any way the use of par- for the team offered unless the sport involved is a contact ticular textbooks or curricular materials. sport. For the purposes of this part, contact sports include (Secs. 901. 902. Education Amendments of 1972. 86 Stat. boxing, wrestling, rugby, ice hockey, football, basketball 373, 374; 20 U.S.C. 1681. 1682) and other sports the purpose of major activity of which involves bodily contact. § 86.43-86.50(Reserved) (c) Equalopportunity.A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural Suhpart E Discrimination onthe Basis of Sex in Employment athleticsshallprovideequalathleticopportunityfor in Education Programs and ActivitiesProhibited members of both sexes. In determining whether equal op- portunities are available the Director will cou.ider, among § 86.51Employment. other factors: (a)General. (1)No person shall, on the basis of sex, (i) Whether the selection of sports and levels of compe- he excluded from participation in, he denied the benefits of, tition effectively accommodate the interests and abilities of or be subjected to discriminatiot, in employment, or re- members of both sexes; cruitment, consideration, or selection therefor, whether full- (ii) The rrovision of equipment and supplies; time or part-time, under any education program or activity (iii) Scheduling of games and practice time; operated by a recipient which receives or benefits from (iv) Travel and per diem allowance; Federal financial assistance.

120 THE CONFERENCE BOARD

194 (2) A recipient shall make all employment decisions in (a) Use of such test or other criterion is shown to pre- any education program or activity operated by such recip- dict validly successful performance in the position in ques- ient in a nondiscriminatory manner and shall not limit, tion; and segregate, or classify applicants or employees in any way (b) Alternative tests or criteria for such purpose, which which could adversely affect any applicant'sor employee's do not have such disproportionately adverse effect, are employment opportunities or status because of sex. shown to be unavailable. (3) A recipient shall not enter into any contractualor other relationship which directly or indirectly has the effect (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) of subjecting employees or students to discriminationpro- hibited by this Subpart, including relationships withem- ti86.53Recruitment. ployment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to (a) Nondiscriminatory recruitment and hiring.A recipient employees of the recipient. shall not discriminate on the basis of sex in the recruitment (4) A recipient shall not grant preferences to applicants and hiring of employees. Where a recipient has been found for employment on the basis of attendance at any educa- to be presently discriminating on the basis of sex in the tional institution or entity which admitsas students only or recruitment or hiring of employees, or has been found to predominantly members of one sex, if the giving of such have in the past so discriminated, the recipient shall recruit preferences has the effect of discriminating on the basis of members of the sex so discriminated against so as to over- sex in violation of this part. come the effects of such past or present discrimination. (b)Application.The provisions of this subpart apply to: (b)Recruitment patterns.A recipient shall not recruit (1) Recruitment, advertising, and the process of applica- primarily or exclusively at entities which furnish as appli- tion for employment; cants only or predominantly members of one sex if such (2) Hiring, upgrading, promotion, consideration for and actions have the effect of discriminating on the basis ofsex award of tenure, demo )n,transfer, layoff, termination, in violation of this subpart. application of nepotism policies, right of return from layoff, (Secs. 901, 902, Education Amendments of 1972, 86 Stat. and rehiring; 373, 374; 20 U.S.C. 1681. 1682) (3) Rates of pay or any other form of compensation, and changes in compensation; 86.54Compensation. (4) Job assignments, classifications and structure, includ- ing position descriptions, lines of progression, and seniority A recipient shall not make or enforce any policyor prac- lists; tice which, on the basis of sex: (5) The terms of any collective bargaining agreement; (a) Makes distinctions in rates of pay or other compen- (6) Granting and return from leaves of absence, leave sation; for pregnancy, childbirth, false pregnancy, termination of (b) Results in the payment of wages to employees of pregnancy, leave for persons of either sex to care for chil- one sex at a rate less than that paid to employees of the op- dren or dependents, or any other leave; posite sex for equal work on jobs the performance of which (7) Fringe benefits available by virtue of employment, requires equal skill, effort, and responsibility, and whichare whether or not administered by the recipient; performed under similar working conditions. (8) Selection and financial support for training, including (Secs. 901, 902. Education Amendments of 1972, 86 Stat. apprenticeship,professionalmeetings,conferences,and 373, 374; 20 U.S.C. 1681. 1682) other related activities, selection for tuition assistance,se- lectionfor sabbaticals and leaves of absence to pursue 86.55Job classification and structure. training; A recipient shall not: (9) Employer-sponsored activities, including social or (a) Classify a job as being for males or for females; recreational programs; and (b) Maintain or establish separate lines of progression, (!0) Any other term, condition, or privilege ofem- ployment. seniority lists, career ladders, or tenure systems basedon sex; or (Secs. 901. 902, Education Amendments of 1972, 86 Stat. (c) Maintain or establish separate lines of progression, 373. 374: 20 U.S.C. 1681. 16821 seniority systems, career ladders, or tenuresystemsfor similar jobs, position descriptions, or job requirements 86.52Employment criteria. which classify persons on the basis of sex, unlesssex is a A recipient shall not administer or operate any testor bona-fide occupational qualification for the positions in other criterion for any employment opportunity which has question as set forth in § 86.51. a disproportionately adverse effect on persons on the basis (Secs. 901. 902. Education Amendments of 1972, 86 Stat. ofse::4.,iless: 373. 374: 20 U.S.C. 1681, 1682)

TEXTS OF REGULATIONS 121 127, § 86.56Fringe benefits. cy, termination of pregnancy and recovery therefrom as a justificationfor a leave of absence without pay for a (a) "Fringe benefits" defined. For purposes of this part, reasonable period of time, at the conclusion of which the "fringe benefits" means: any medical, hospital, accident, employee shall be reinstated to the status which she held life insurance or retirement benefit, service, policy or plan, when the leave began or to a comparable position, without any profit-sharing or bonus plan, leave, and any other decrease in rate of compensation or loss of promotional op- benefit or service of employment not subject to the provi- portunities, or any other right or privilege of employment. sion of §86.54. (b) Prohibitions. A recipient shall not: (Secs. 901. 902, Education Amendments of 1972, 86 Stat. 373. 374: 20 U.S.C. 1681. 1682) (1) Discriminate on the basis of sex with regard to mak- ing fringe benefits available to employees or make fringe § 86.58Effect of State or local law or other requirements. benefits available to spouses, families, or dependents of em- ployees differently upon the basis of the employee's sex; (aProhibitory requirements. The obligation to comply (2) Administer, operate, offer, or participate in a fringe with this subpart is not obviated or alleviated by the exist- benefitplan which does not provide eitherfor equal ence of any State or local law or other requirement which periodic benefits for members of each sex, or for equal con- imposes prohibitions or limits upon employment of mem- tributions to the plan by such recipient for members of bers of one sex which are not imposed upon members of each sex; or the other sex. (3) Administer, operate, offer, or participate in a pen- (b) Benefits. A recipient which provides any compensa- sion or retirement plan which establishes different optional tion, service, or benefit to members of one sex pursuant to or compulsory retirement ages based on sex or which other- a State or local law or other requirement shall provide the wise discriminates in benefits on the basis of sex. same compensation, service, or benefit to members of the other sex. (Secs. 901. 902. Education Amendments of 1972. 86 Stat. 373. 374; 20 U.S.C. 1681, 1682) (Secs. 901, 902. Education Amendments of 1972. 86 Stat. 373. 374: 20 U.S.C. 1681. 1682) § 86.57Marital or parental status. § 86.59Advertising. (a) General. A recipient shall not apply any policy or take any employment action: A recipient shall not in any advertising related to em- (1) Concerning the potential marital, parental, or family ployment indicate preference, limitation, specification, or status of an employee or applicant for employment which discrimination based on sex unless sex is a bona-fide occu- treats persons differently on the basis of sex; or pational qualification for the particular job in question. (2) Which is based upon whether an employee or appli- (Secs. 901, 902. Education Amendments of 1972. 86 Stat. cant for employment is the head of household or principal 373. 374: 20 U.S.C. 1681. 1682) wage earner in such employee's or applicant's family unit. (b) Pregnancy. A recipient shall not discriminate against § 86.60Pre-employment inquiries. or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false (a) Marital status. A recipient shall not make pre- pregnanacy, termination of pregnancy, or recovery there- employment inquiry as to the marital status of an appli- from. cant for employment including whether such applicant is (c) Pregnancy as a temporary disability. A recipient "Miss or Mrs." shall treat pregnancy, childbirth, false pregnancy, termina- (b) Sex. A recipient may make pre-employment inquiry tion of pregnancy, and recovery therefrom and any tem- as to the sex of an applicant for employment, but only if porary disability resulting therefrom as any other tempo- such inquiry is made equally of such applicants of both rary disability for all job related purposes, including com- sexes and if the results of such inquiry are not used in mencement, duration and extensions of leave, payment of connection with discrimination prohibited by this part. disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit (Secs. 901. 902. Education Amendments of 1972. 86 Stat. offered to employees by virtue of employment. 373. 374 20 U.S.C. 1681, 1682) (d) Pregnancy leave. In the case of a recipient which does not maintain a leave policy for its employees, or in § 86.61Sex as a bona-fide occupational qualification. the case of an emplpyee with insufficient leave or accrued employment time to qualify for leave under such a policy, A recipient may take action otherwise prohibited by this a recipient shall treat pregnancy. childbirth, false pregnan- subpart provided it is shown that sex is a bona-fide ocdupa-

122 THE CONFERENCE BOARD 123 tional qualification for that action, such that consideration §§ 86.62-86.70 [Reserved] of sex with regard to such action is essential to successful operation of the employment function concerned. A recip- Subpart FProcedures [Interim] ient shall not take action pursuant to this section which is § 86.71Interim procedures. based upon alleged comparative employment characteristics or stereotyped characterizations of one or the other sex, or For the purposes of implementing this part during the upon preference based on sex of the recipient, employees, period between its effective date and the final issuance by students, or other persons, but nothing contained in this the Department of a consolidated procedural regulation ap- section shall prevent a recipient from considering anem- plicable to title IX and other civil rights authorities admin- ployee's sex in relation to employment in a locker room istered by the Department, the procedural provisions appli- or toilet facility used only by members of one sex. cable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These pro- (Secs. 901, 902, Education Amendments of 1972, 86 Stat. cedures may be found at 45 CFR §§ 80-6-80-11 and 45 373, 374; 20 U.S.C. 1681, 1682) CFR Part 81.

TEXTS OF REGULATIONS 123 127 Court Cases Cited

Adams v. Richardson Adams v. Weinberger 32 Albemarle Paper Co. v. Moody 8 Albemarle Paper Co. v. Moody 18 Alexander v. Gardner-Denver Co. 15 AT&T Consent Decree . 4 AT&T Proposed Supplemental Order 5 AT&T Proposed Supplemental Order 45 Bank of California Consent Decree 7 Barnett v. W. T. Grant Co. ;9 Brennan v. Houston Endowment Inc. 38 Bridgeport Guard., Inc. v. Members of Bridgeport C.S. Com'n. 52 Brito v. Zia Company 28 Brown v. D. C. Transit System, Inc. 62 Carey v. Greyhound Bus Co., Inc. 13 Cleveland Board of Education v. La Fleur 23 Cohen v. Chesterfield School Board, et al. 23 Corning Glass Works v. Brennan 38 Cummins v. Parker Seal Company 64 Diaz v. Pan Am. World Airways, Inc. 37 Douglas v. Hampton 5 EEOC v. Detroit Edison Company 49 EEOC v. Detroit Edison Company 50 El Paso Natural Gas Co. Agreement 7 Emporium Capwell Co. v. Western Addition Community Organization 63 Franks v. Bowman Transportation Company 22 Franks v. Bowman Transportation Company 61 Geduldig v. Aiello 26 Gilmore v. Kansas City Terminal Railway Company 57 Green v. Board of Regents of Texas Tech University 55 Griggs v. Duke Power Co. 1 Griggs v. Duke Power Co. 3 Guerra v. Manchester Terminal Corporation 14 Guerra v. Manchester Terminal Corporation 34 Head v. Timken Roller Bearing Company 7 Hodgson v. Behrens Drug Company 58 Hodgson v. Greyhound Lines, Inc. 36 Hodgson v. Robert Hall Clothes, Inc. 59 Hollander v. Sears, Roebuck & Co. 43 Hughes Aircraft Company v. Schlesinger 67 Jersey Cent. Pow. & Co. v. Local Un. 327, etc. of I.B.E.W. 21 Johnson v. Railway Express Agency, Inc. 34 Legal Aid Society of Alameda County v. Brennan 32 McDonnell Douglas Corp. v. Green 16 McDonald v. General Mills, Inc., et al. 43 McDonald v. Santa Fe Trail Transp. Co. 65

Meadows v. Ford Motor Company . . 50 Natural Res. Def. Coun., Inc., v. Securities & Exch. Com'n. 32

124 THE CONFERENCE BOARD

126 Newmon v. Delta Air Lines, Inc. 65 Pacific Gas and Electric Co. Agreement 7 Patterson v. Newspaper Mail Del. U. of N.Y. & Vic. 62 Rios v. Enterprise Assn. Steamfitters Local 638 of U.A. 12 Rodriguez v. East Texas Motor Freight 60 Rogers v. International Paper Company 58 Sears, Roebuck & Co. v. GSA 66 Steel Industry Consent Agreement 9 Trucking Industry Consent Agreement 9 U.S. v. Georgia Power Company 7 U.S. v. Georgia Power Company 44 U.S. v. Georgia Power Company 50 U.S. v. N. L. Industries, Inc. 7 U.S. v. N. L. Industries, Inc. 56 U.S. v. United States Steel Corporation 9 Vulcan Soc. of N.Y. City Fire Dept., Inc., v. Civil Service Commission 53 Ward law v. Austin School District 61 Waters v. Wisconsin Steel Works of Int. Harvester Co. Watkins v. United Steelworkers of America Loc. 2369 Westinghouse Electric Corporation v. Schlesinger 67 Wetzel v. Liberty Mutual Insurance Company 25 Wetzel v. Liberty Mutual Insurance Company 44

COURT CASES CITED 125 1 ,9 0 Related Conference Board Publications

Corporate Response to Employees' Housing Needs 676 Supervisory Training 612 Organization Development: A Reconnaissance 605 Nondiscrimination in Employment: Changing Perspectives, 1963-1972 589 Women, A Demographic, Social and Economic Presentation 587 Social Responsibility and the Smaller Company: Some Perspectives 568 Organization Change: Perceptions and Realities 561 Staffing Systems: Managerial and Professional Jobs 558 Employing the Disadvantaged: A Company Perspective 551 Technician EducationWho Chooses It? 543 Business Leadership in Social Change 529 Manpower Planning: Evolving Systems 521 Business and the Development of Ghetto Enterprise 517 Job Design for Motivation 515 Combating Knowledge Obsolescence: II. Employee Tuition-Aid Plans SPP 221 Managing Programs to Employ the Disadvantaged SPP 219 Behavioral Science Concepts and Management Applications SPP 216 Managing byand withObjectives SPP 212