MBE's in the Nati

A little background on our experience in der Nati. We had interest in a nightclub, Karma, at 1120 Jackson Street and during the 2001 rebellion we, and our white partners, couldn't get any help from the city, although we filled out the forms they or their contractors lost them twice. We had to close for a variety of reasons not the least the third dead body within blocks of the club.

My partner and myself worked on the Over the Rhine plan and have gotten grants from the Empowerment Zone for youth. Although not from here we started in 1996, at the 5th and Race Street Tower, to work and develop our company and organization here. We are an Architectural, Engineering, Construction Management and Business Consulting firm partnered with a female general contractor who started out as an IBEW journeyman.

What most people don't realize about their African American neighbors is that we are the result of a 400 year breeding experiment, that worked. For those who don’t know -slavery in America started in Florida in 1565

In this experiment the first 300 years the US government, when it was formed, had laws that keep blacks as uneducated as possible, except for those who built the infrastructure that whites used. The custom was codified in many ways but a speech that was delivered by Willie Lynch on the bank of the James River in the colony of Virginia in 1712 says it best, in our minds at least. Lynch was a British slave owner in the West Indies. He was invited to the colony of Virginia in 1712 to teach his methods to slave owners there. The term "lynching" is derived from his last name. The speech in whole is quoted here:

"Gentlemen. I greet you here on the bank of the James River in the year of our Lord one thousand seven hundred and twelve. First, I shall thank you, the gentlemen of the Colony of Virginia, for bringing me here. I am here to help you solve some of your problems with slaves. Your invitation reached me on my modest plantation in the West Indies, where I have experimented with some of the newest and still the oldest methods for control of slaves. Ancient Rome's would envy us if my program is implemented.

As our boat sailed south on the James River, named for our illustrious King, whose version of the Bible we Cherish, I saw enough to know that your problem is not unique. While Rome used cords of wood as crosses for standing human bodies along its highways in great numbers, you are here using the tree and the rope on occasions. I caught the whiff of a dead slave hanging from a tree, a couple miles back. You are not only losing valuable stock by hangings, you are having uprisings, slaves are running away, your crops are sometimes left in the fields too long for maximum profit, You suffer occasional fires, your animals are killed.

Gentlemen, you know what your problems are; I do not need to elaborate. I am not here to enumerate your problems, I am here to introduce you to a method of solving them. In my bag here, I HAVE A FULL PROOF METHOD FOR CONTROLLING YOUR BLACK SLAVES. I guarantee every one of you that if installed correctly IT WILL CONTROL THE SLAVES FOR AT LEAST 300 HUNDREDS YEARS[1792+300=2092].

My method is simple. Any member of your family or your overseer can use it. I HAVE OUTLINED A NUMBER OF DIFFERENCES AMONG THE SLAVES; AND I TAKE THESE DIFFERENCES AND MAKE THEM BIGGER. I USE FEAR, DISTRUST AND ENVY FOR CONTROL PURPOSES. These methods have worked on my modest plantation in the West Indies and it will work throughout the South. Take this simple little list of differences and think about them.

On top of my list is "AGE" but it's there only because it starts with an "A." The second is "COLOR" or shade, there is INTELLIGENCE, SIZE, SEX, SIZES OF PLANTATIONS, STATUS on plantations, ATTITUDE of owners, whether the slaves live in the valley, on a hill, East, West, North, South, have fine hair, course hair, or is tall or short.

Now that you have a list of differences, I shall give you a outline of action, but before that, I shall assure you that DISTRUST IS STRONGER THAN TRUST AND ENVY STRONGER THAN ADULATION, RESPECT OR ADMIRATION. The Black slaves after receiving this indoctrination shall carry on and will become self refueling and self generating for HUNDREDS of years, maybe THOUSANDS.

Don't forget you must pitch the OLD black Male vs. the YOUNG black Male, and the YOUNG black Male against the OLD black male. You must use the DARK skin slaves vs. the LIGHT skin slaves, and the LIGHT skin slaves vs. the DARK skin slaves. You must use the FEMALE vs. the MALE. And the MALE vs. the FEMALE.

You must also have you white servants and over- seers distrust all Blacks. But it is NECESSARY THAT YOUR SLAVES TRUST AND DEPEND ON US. THEY MUST LOVE, RESPECT AND TRUST ONLY US. Gentlemen, these kits are your keys to control. Use them. Have your wives and children use them, never miss an opportunity. IF USED INTENSELY FOR ONE YEAR, THE SLAVES THEMSELVES WILL REMAIN PERPETUALLY DISTRUSTFUL

This was the mostly white manner of the Spanish, British and American slavery in the Americas. It was a plan that has succeeded. Now we must address the results of the breakdown.

In this city we have the resources:

We, the residents of the city of Cincinnati, own a rails road that pays us $16M a year;

we own a water works system that is worth over $400M dollars;

we own the Blue Ash Airport and its 200 developable acres;

we are designated a Empowerment Zone with over $100M locked up in it;

our city has the ability to issue up to $300M in revenue bonds to create employment for its residents;

our city has the only fully vested pension fund for city workers in the state of Ohio, in a major city, some 2 billion dollars, that is not invested in real estate here rather 50% or more is in stock on the New York Stock Exchange, and;

we have a plan in development for using these and the other resources at our disposal including creating a new police force that would be accountable directly to the residents of the communities it serves and ending the boycott based on the five point agenda set forth in Dr. Daniels report Executive Summary and Recommendations and his Executive Summary and Recommendations both are adobe PDF files.

Lets use it and Change Cincinnati NOW.

We start on Sunday in Walnut Hills at Peeples corner. We will join in with a group of African-American pastors from Methodist churches here is launching an outreach ministry [although our organization itself is not a faith based organization we do sponsor one and support this ministry] for men and boys to address violence that threatens city neighborhoods.

"We're trying to put a human face on Christianity from the male point of view - to show that you can be macho and a Christian," said Melvin Williams, president of the Cincinnati District United Methodist Men. "We're determined that we're going to bring in the white brothers from the suburbs," said the Rev. Dr. Fred Heath, pastor of Ammons United Methodist Church.

The pastors are inviting men from churches of all denominations - including white congregations in the suburbs - to join them at 9 a.m. Sunday. They will gather at 934 E. McMillan St. and march to Ammons United Methodist Church on Gilbert Avenue and McMillan. Each man is asked to bring a boy to mentor. Social service agencies such as Big Brothers-Big Sisters and Prisoners Helping Prisoners will set up booths at the church. The event is expected to last a little more than an hour.

Later that day at 5pm on at 2439 Auburn on the corner of McMillan and Auburn at the former Mt. Auburn United Methodist Church there will be a rally to plan about changing the city. Included will be a plan of action to redevelop OTR through revenue bonds, collateralized mortgage obligations and other financial instruments along with development and or support for over 100 businesses in OTR.

An affirmative action program (see entry AAP refers to Affirmative Action Program".

An AAP is a management tool designed to ensure equal opportunity in recruiting, hiring, training, promoting, and compensating individuals so that we all can live the American dream. A good affirmative action program is a diagnostic tool that evaluates the composition of the workforce and compares it with the composition of the relevant labor pool and then includes practical steps addressing under utilization of specific groups.

The federal Kerner Commission report on racial disorders, prompted by the riots of the 1960s, provided ample documentation of American institutional discrimination against blacks. The commission presented its findings in 1968, concluding that urban violence reflected the profound frustration of inner-city blacks and that racism was deeply embedded in American society. The report's most famous passage warned that the United States was "moving toward two societies, one black, one white — separate and unequal."

The Reverend Martin Luther King Jr., pronounced the report a "physician's warning of approaching death, with a prescription for life."

This happened just three years after the US Constitution was amended in January 1964, by the leadership of Republicans and Democrats, to prevent any local authority from using poll tax registration as a means of preventing any person from registering as a voter. Finally in 1965, a comprehensive Civil Rights Act, more correctly called the Voting Rights Act, was signed into law by President Johnson: this gave legislative enforcement to the constitutional amendment.

The law also suspended (and amendments later banned) the use of literacy tests for voters. The final abolition of the last literacy tests allowed high numbers of African Americans, who where previously denied the right to vote, to gain access to the vote. Remember this was just 40 years ago.

Now a federal commision reported that unless conditions were remedied, the country faced a “system of ’apartheid’” in its major cities. The Kerner report delivered an indictment of “white society” for isolating and neglecting African Americans and urged legislation to promote racial integration and to enrich slums—primarily through the creation of jobs, job training programs, and decent housing.

Excerpted passages from the Report of the National Advisory Commission on Civil Disorders (the Kerner Commission) -

Segregation and poverty have created in the racial ghetto a destructive environment totally unknown to most white Americans. What white Americans have never fully understood - but what the Negro can never forget - is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.

The black ghettos where segregation and poverty converge on the young to destroy opportunity and enforce failure. Crime, drug addiction, dependency on welfare, and bitterness and resentment against society in general and white society in particular are the result. At the same time, most whites and some Negroes outside the ghetto have prospered to a degree unparalleled in the history of civilization. Through television and other media, this affluence has been flaunted before the eyes of the negro poor and the jobless ghetto youth.

Frustrated hopes are the residue of the unfulfilled expectations aroused by the great judicial and legislative victories of the Civil Rights Movement and the dramatic struggle for equal rights in the South.

The police are not merely a "spark" factor. To some Negroes police have come to symbolize white power, white racism and white repression. And the fact is that many police do reflect and express these white attitudes. The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence of police brutality and in a "double standard" of justice and protection - one for Negroes and one for whites.

President Johnson, however, rejected the recommendations. In April 1968, one month after the release of the Kerner report, rioting broke out in more than 100 cities following the assassination of civil rights leader Martin Luther King, Jr.

By the election of 1968, Richard M. Nixon had gained the presidency through a conservative white backlash that insured that the Kerner Report's recommendations.

Also Roger Wilkins in his Racism Has Its Privileges: The Case For Affirmative Action provides the rationale for affirmative action. In general affirmative action requires institutions to search for qualified candidates in places beyond their ordinary searches or businesses.

"AAP" refers to Affirmative Action Program; and "OFCCP," to the Office of Federal Contract Compliance Programs (Department of Labor).

A. Introduction

1.The OFCCP is part of the U.S. Department of Labor’s Employment Standards Administration. It has a national network of six regional offices, each with district and area offices in major metropolitan centers. OFFCP enforces, among other things, Executive Order 11246. Executive Order 11246 prohibits discrimination in hiring or employment decisions on the basis of race, color, gender, religion, and national origin. It applies to all nonexempt government contractors and subcontractors and Federally assisted construction contracts and subcontracts in excess of $10,000.

2.Under Executive Order 11246, contractors and subcontractors with a Federal contract of $50,000 or more and 50 or more employees are required to develop a written affirmative action program that sets forth specific and result-oriented procedures to which a contractor commits itself to apply every good faith effort.

3.On November 13, 2000, only a few days after the Presidential election, the OFCCP issued important amendments to the regulations implementing Executive Order 11246, 41 C.F.R. Parts 60-1 and 60-2, 65 Fed. Reg. 68022 (Nov. 13, 2000). The amendments will change the way AAPs are written.

4.The regulations became effective December 13, 2000, and AAPs written after that date will have to conform to these new regulations.

B. The Contents of AAPs

1.Organizational Display or Workforce Analysis. Under 41 C.F.R. §60-2.11 (2001), non-construction contractors must prepare an "organizational profile." This consists of either the new "organizational display" or the older workforce analysis, which existed under the old regulations.

Organizational Display

The purpose of the organizational profile, like the workforce analysis, is to provide a depiction of the contractor’s workforce. However, the introduction of the organizational display, which eliminates the itemization of job titles and the reporting of gender, race, or salary information by job title, is intended to make this section of the AAP less burdensome for contractors to produce.

The organizational display is essentially an organizational chart annotated with race and gender incumbency numbers. The regulations define an organizational display as a detailed graphical or tabular chart, text, spreadsheet, or similar presentation of the contractor’s organization structure" that must:

Identify each organizational unit in the establishment; and show the relationship of each organizational unit to the other organizational units in the establishment. 41 C.F.R. §60-2.11(b).

An organizational unit is any component that is part of the contractor’s corporate structure.


The term includes an umbrella unit (such as a department) that contains a number of
subordinate units, and it separately includes each of the subordinate units (such as sections or branches). 41 C.F.R. §60-2.11(b)(2).

The organizational display must include:

1. The name of the unit;
2. The job title, gender, race, and ethnicity of the unit supervisor (if the unit has a supervisor);
3. The total number of male and female incumbents; and
4. The total number of male and female incumbents in each of the following groups: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. 41 C.F.R. §60-2.11(b)(3).
5. Alternatively, the contractor may use a "workforce analysis." 41 C.F.R. §60-2.11(c)".

A workforce analysis is a listing of each job title as it appears in applicable collective bargaining agreements or payroll records ranked from the lowest paid to the highest paid within each department or other similar organizational unit including departmental or unit supervision.

If there are separate work units or lines of progression within a department, a separate list must be provided for each such work unit, or line, including unit supervisors. For lines of progression there must be indicated the order of jobs in the line through which an employee could move to the top of the line.

Where there are no formal progression lines or usual promotional sequences, job titles should be listed by department, job families, or disciplines, in order of wage rates or salary ranges.

For each job title, the total number of incumbents, the total number of male and female incumbents, and the total number of male and female incumbents in each of the following groups must be given: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. The wage rate or salary range for each job title must be given. All job titles, including all managerial job titles, must be listed."

Job Group Analysis.

Under 41 C.F.R. §60-2.12 non-construction contractors must also prepare a "job group analysis" as a first step in the contractor’s comparison of the representation of minorities and women in its workforce with the estimated availability of minorities and women qualified to be employed:

In the job group analysis, jobs at the establishment with similar content, wage rates, and opportunities, must be combined to form job groups.
Similarity of content refers to the duties and responsibilities of the job titles which make up the job group.
Similarity of opportunities refers to training, transfers, promotions, pay, mobility, and other career enhancement opportunities offered by the jobs within the job group. 41 C.F.R. §60-2.12(b).
The job group analysis must include a list of the job titles that comprise each job group. If, under sections 60-2.12(d) and (e) the job group analysis contains jobs that are located at another establishment, the job group analysis must be annotated to identify the actual location of those jobs. If the establishment at which the jobs actually are located maintains an affirmative action program, the job group analysis of that program must be annotated to identify the program in which the jobs are included. 41 C.F.R. §60-2.12(c).

Although all jobs at each establishment must be included in the job group analysis under the new regulations, if a contractor has a total workforce of fewer than 150 employees, the contractor may prepare a job group analysis that uses EEO-1 categories as job groups. EEO-1 categories refers to the nine occupational groups used in the Standard Form 100, the Employer Information EEO-1 Survey: officials and managers, professionals, technicians, sales, office and clerical, craft workers (skilled), operatives (semiskilled), laborers (unskilled), and service workers. 41 C.F.R. §60-2.12(e).

The contractor must separately state the percentage of minorities and the percentage of women it employs in each job group. 41 C.F.R. §60-2.13.

Availability Analysis.

The new regulations still require contractors to determine the availability of minorities and women for jobs in their establishments, compare incumbency to availability, declare underutilization and establish goals to eliminate the underutilization.

What is different is that instead of the unwieldy "8 factor analysis" formerly required, the new standard for availability includes only the consideration of:

1. Those with requisite skills; and
   
2. Those in the contractor workforce who are "promotable," "transferable," or "trainable."
   Specifically, the regulations only require a two-factor analysis:
   "The percentage of minorities and women with requisite skills in the reasonable recruitment area." 41 C.F.R. §60-2.14(c)(1); and
   "The percentage of minorities and women among those promotable, transferable and trainable within the contractor’s organization." 41 C.F.R. §60-2.14(c)(2).
   
3. The reasonable recruitment area is defined as the geographical area from which the contractor usually seeks or reasonably could seek workers to fill the positions in question. 41 C.F.R. §60-2.14(c)(1). The starting point is a zip code analysis of incumbents or applicants for each job title, which is a pretty good indicator of a reasonable recruitment area. This will normally show shorter distances for lower skills and broader scope for higher level positions. In urban locations, Standard Metropolitan Statistical Areas may be appropriate for lower level jobs. But executive-level jobs may be recruited nationwide.
   "The contractor may not draw its reasonable recruitment area in such a way as to have the effect of excluding minorities or women. For each job group, the reasonable recruitment area must be identified, with a brief explanation of the rationale for selection of that recruitment area." 41 C.F.R. §60-2.14(e).
   "The contractor may not define the pool of promotable, transferable, and trainable employees in such a way as to have the effect of excluding minorities or women. For each job group, the pool of promotable, transferable, and trainable employees must be identified with a brief explanation of the rationale for the selection of that pool." 41 C.F.R. §60-2.14(f).
   In general, historical promotional patterns will guide the promotable analysis.
   

Then the contractors must determine availability of minorities and women for each job group using the most current and discrete statistical information available to derive availability figures. Examples of such information include census data, data from local job service offices, and data from colleges or other training institutions.

But the most confusing requirement occurs when a job group is composed of job titles with different availability rates. Under these circumstances, the regulations demand that "a composite availability figure must be calculated." 41 C.F.R. §60-2.14(g). The composite availability figure represents a weighted average of the availability estimates for all the job titles in the job group.

To compute the composite availability figure, the contractor must separately determine the availability for each job title within the job group and must determine the proportion of job group incumbents employed in each job title. The contractor must weigh the availability for each job title by the proportion of job group incumbents employed in that job group. The sum of the weighted availability estimates for all job titles in the job group equals the composite availability for the job group.

This suggests that it may be better to limit groups to those with the same job titles.

Underutilization.

Availability is then compared to incumbency and if the percentage of minorities or women is lower than the availability – "less than would reasonably be expected given their availability percentage in that particular job group" the contractor must establish a "placement goal" (41 C.F.R. §60-2.15), i.e., the contractor must set placement goals to correct the underutilization.

Placement goals are described in 41 C.F.R. §60.2-16 with a fanfare of exculpatory language:

"Placement goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity." 41 C.F.R. §60.2-16(a).

"A contractor’s determination under section 60-2.15 that a placement goal is required constitutes neither a finding nor an admission of discrimination." 41 C.F.R. §60.2-16(b).

"Placement goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden." 41 C.F.R. §60.2-16(e)(1).

"In all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex, or national origin." 41 C.F.R. §60.2-16(e)(2).

"Placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results." 41 C.F.R. §60.2-16(e)(3).

"Placement goals may not be used to supersede merit selection principles. Affirmative action programs prescribed by the regulations in this part do not require a contractor to hire a person who lacks qualifications to perform the job successfully, or hire a less qualified person in preference to a more qualified one." 41 C.F.R. §60-2.16(e)(4)).

"A contractor near an Indian Reservation can express an employment preference for American Indians living at or near an Indian Reservation." 41 C.F.R. §60-2.16(f).

The Bottom Line

The placement goal must be set at an annual percentage rate equal to the availability figure for women or minorities.

41 C.F.R. §60-2.16(c).

The regulations contemplate "a single goal for all minorities," but if there is a substantial disparity in the utilization of a particular minority group, the contractor may be required to establish separate goals for each group. 41 C.F.R. §60-2.16(d).

Other Required Contents for an AAP. Section 60-2.17 sets forth additional requirements that are only a little different than the old rules as follows:

Designation of responsibility. The contractor must provide for the implementation of equal employment opportunity and the affirmative action program by assigning responsibility and accountability to an official of the organization. Depending upon the size of the contractor, this may be the official’s sole responsibility. He or she must have the authority, resources, support of and access to top management to ensure the effective implementation of the affirmative action program.

Identification of problem areas. The contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist. At a minimum the contractor must evaluate:

(1) The workforce by organizational unit and job group to determine whether there are problems of minority or female use (i.e., employment in the unit or group), or of minority or female distribution (i.e., placement in the different jobs within the unit or group);

(2) Personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities;

(3) Compensation systems to determine whether there are gender-, race-, ethnicity-based disparities;

(4) Selection, recruitment, referral, and other personnel procedures to determine whether they result in disparities in the employment or advancement of minorities or women; and

(5) Any other areas that might affect the success of the affirmative action program.

Action-Oriented Programs.

The contractor must develop and execute action-oriented programs designed to correct any problem areas identified under section 60-2.17(b) and to attain established goals and objectives.

For these action-oriented programs to be effective, the contractor must ensure that they consist of more than following the same procedures that have previously produced inadequate results. Furthermore, a contractor must demonstrate that it has made good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results.

Internal audit and reporting system.

The contractor must develop and implement an auditing system that periodically measures the effectiveness of its total affirmative action program. The actions listed below are key to a successful affirmative action program:

(1) Monitor records of all personnel activity, including referrals, placements, transfers, promotions, terminations, and compensation, at all levels to ensure the nondiscriminatory policy is carried out;

(2) Require internal reporting on a scheduled basis as to the degree to which equal employment opportunity and organizational are attained;

(3) Review report results with all levels of management; and

(4) Advise top management of program effectiveness and submit recommendations to improve unsatisfactory performance.

These look similar to, but are less extensive than, the old requirements formerly contained in the regulations at 41 C.F.R. §60-2.20 et seq.

Equal Opportunity Survey

The new regulations introduce the use of a new survey that the OFCCP has and will continue to send to selected contractors and require them to complete. 41 C.F.R. §60-2.18.
The current survey asks for such information as the highest and lowest salaries for non-minority males, women, and minorities in major job groups. These results will undoubtedly be used to select contractors for more detailed audits.

Glass Ceiling Audit

41 C.F.R. §60-2.30 recognizes the practice of conducting "Corporate Management Compliance Evaluations" to identify and eliminate barriers to advancement into mid-level and senior-level positions.

EXECUTIVE ORDER 11,246

Affirmative action’s goal [in 1964] was to remove nonmerit barriers to upward social and economic mobility. At the federal level thris was accomplished through Executive Order 11,246 of Sept. 24, 1965, appear at 30 FR 12319, 12935, 3 CFR, 1964-1965 Comp., p.339, unless otherwise noted. This was

It is the policy of the Government of the United States [in 1965] to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of Federal employment policy and practice.

Orginal Executive Order 11,246
http://www.eeoc.gov/abouteeoc/35th/thelaw/eo-11246.html

Executive Order 11,246 requires that a federal contractor "will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.

Exec. Order No. 11,256, C.F.R. 339 (1964-1965 Comp.), reprinted as amended in 42 U.S.C. § 2000e-5(g)(1) (1993). That means this September 24, 2005 is the 40th year celebration of when America recognized that since 1565 Americans of African decent needed to have past wrongs addressed. In case you don't know, in 1565 the colony of Saint Augustine in Florida became the first permanent settlement in North America, and included an unknown number of African slaves.

These requirements were implemented through regulations promulgated by the Nixon-Ford administration, found at 41 C.F.R. Part 60. That was less than 30 years ago. They have since been admended. E.O. 11246 and its regulations are administered and enforced by the Employment Standards Administration’s Office of Federal Contract Compliance Programs (OFCCP).

Executive Order 11246, As Amended http://www.dol.gov/esa/regs/statutes/ofccp/eo11246.htm

Affirmative action, or positive measures, must be taken by covered employers to recruit and advance qualified minorities and women for jobs in which they are underutilized relative to their availability. Affirmative actions include training programs, outreach efforts, and other positive steps. These procedures should be incorporated into the company’s written personnel policies. Employers with written affirmative action programs must implement them, keep them on file and update them annually.

Employers are also required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against an individual for filing a complaint or participating in a proceeding under the Executive Order.

LIMITATION PERIOD & FILING REQUIREMENTS

Individuals may file complaints if they believe they have been discriminated against by federal contractors or subcontractors. Complaints also may be filed by organizations on behalf of the person or persons affected.

Complaints must be filed within 180 days from the date of the alleged discrimination, although filing time can be extended for a good reason.

If a complaint filed under Executive Order 11246 involves discrimination against only one person, OFCCP will normally refer it to the EEOC. Cases involving groups of people or indicating patterns of discrimination are generally investigated and resolved by OFCCP. Complaints may be filed directly with any of OFCCP's regional or district offices throughout the country, or with OFCCP in Washington, D.C.

REMEDIES

It is now well established that state and local initiatives that seek to employ "race conscious" measures of ensuring equal opportunity must satisfy the most exacting standards, in order to comply with prevailing interpretations of constitutional requirements. Even though the prevous 400 plus years of overt government enforced discrimination did not have to meet any standards except the color of your skin.

THE CROSON CASE

These standards were applied and closely examined by the Supreme Court in City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989), 709 S.Ct. 706, and their applicability extended in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097 (1995). In many respects the Supreme Court's 1989 decision, City of Richmond v. J.A. Croson Co., was the most significant civil rights case of the nineteen eighties. It set new standards of review in equal protection cases and quickly became a decisive precedent in the areas of public employment, higher education, and voting rights laws.

Reference on the Croson decision is at:
http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0488_0469_ZS.html

The Croson decision represents the definitive legal precedent that established "strict scrutiny" as the standard of review by which state and local programs that grant or limit government opportunities on the basis of race are evaluated.

The Adarand decision subsequently extended the "strict scrutiny" standard of review to race conscious programs enacted by the federal government.

The Croson decision exempted federally administered programs, although many of them demanded that local governments create Minority Business Enterprise (MBE) requirements for locally administered, federally-funded programs. See, e.g., 49 C.F.R. § 23.45 (1996) (requiring recipients of Department of Transportation contracts to establish certain MBE procedures).

However, in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Supreme Court required that the same strict scrutiny standard be applied to federal programs as Croson applied to state and local programs.In view of the position taken by the Court in Croson, states, municipalities, and otherlocal governments must satisfy the narrow tailoring prong, and in doing so, the following factors must be analyzed:

Whether the MBE program covers minorities or women for which there is evidenceof discrimination (i.e. statistical disparity, anecdotal evidence, etc.),

1. Whether the size of the MBE participation goal is flexible and contains waiver provisions for prime contractors who make a "good faith" effort to satisfy MBE utilization goals, but are unsuccessful in finding any qualified, willing and able MBEs;

2. Whether there is a reasonable relationship between the numerical goals set and the relevant labor pool of MBEs capable of performing the work in the marketplace;

3. Whether race-neutral alternatives were considered before race-conscious remedies were enacted; and

4. Whether the MBE program contains sunset provisions or other mechanisms for periodic review to assess the program's continued need.