The Leadership Conference on Civil and Human Rights

October 1985: Volume 1, Number 2

The Administration's Anti-Affirmative Action Campaign Continues

With their campaign well underway in the courts to overturn consent decrees that call for race-conscious hiring and promotions, Attorney General Edwin Meese and Assistant Attorney General for Civil Rights Bradford Reynolds in August opened a new front, an assault on affirmative action required of government contractors by Executive Order 11246.

Background

E.O. 11246 is the most recent in a series of executive orders which since 1941 have impose nondiscrimination requirements and since 1961 have required affirmative action in the employment practices of contractors and subcontractors of the Federal Government. This federal commitment to affirmative action has been developed and supported by eight Republican and Democratic Administrations over the past forty-four years. Executive Order 11246, signed by President Johnson in 1965, and amended two years later states:

The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The 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.

Initially, affirmative action was not defined precisely and it has evolved with experience. I 1967, the Director of the Office of Contract Compliance (OFCCP) in the Department of Labor responsible for administering the program, offered the following definition:

There is no fixed and firm definition of affirmative action. I would say that in a genera way, affirmative action is anything that you have to do to get results ... Affirmative action is really designed to get employers to apply the same kind of imagination and ingenuity that they apply to any other phase of their operation.

Another definition, offered by U.S. Commission on Civil Rights in 1977 was that the term "encompasses any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from reoccurring in the future."

In 1965, after lesser affirmative action measures had failed to produce change, OFCCP established a series of special area programs to "assure minority group representation in all construction trades and in all phases of the work." Perhaps most well known is the Philadelphia plan. Established in 1967 and revised in 1969, it required that bidders for federal or federally assisted construction contracts submit goals for minority employee utilization and commit themselves to make "good faith" efforts to achieve such goals. The first regulations to implement Executive Order 11246 for non-construction contractors were issued in May 1968 and required that specific steps be taken by federal contractors in all their establishments. These steps were detailed in Order No. 4, an OFCCP instruction to the contracting agencies. During the Nixon Administration, Secretary of Labor George Schultz in 1970 issued a second set of regulations which were again revised in 1971. Referred to as Revised Order No. 4 it sets forth the p rocedures contractors must follow to comply with E.O. 11246. Still in effect today, it requires federal contractors to undertake an availability analysis to determine if there are fewer women or minorities in their employ than would be expected according to their availability for work. If this analysis reveals an underutilization of minorities and women, the contractor is required to develop measurable goals and timetables and make a good faith attempt to meet these targets. It is important to note that the order specifically states:

Goals may not be rigid and inflexible quotas which must be met, but must be targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work.