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.
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.
