The Legal Environment of Affirmative Action
(continued ; section 2)

Federal Agency Regulations

Department of Education

Nondiscrimination in Programs Receiving Federal Financial Assistance through the Department of Education - effectuation of Title VI (34 CFR, Subtitle B, Chapter I Part 100)

Prohibits discrimination based on race, color or national origin directly, or through contracts, with regard to participation in or the provision of benefits under any program or activity receiving federal financial assistance.

Nondiscrimination on the Basis of Handicap (34 CFR, Subtitle B, Chapter I, Part 104)

Implements Section 504 of the Rehabilitation Act of 1973 which is designed to eliminate discrimination on the basis of handicap in programs or activities receiving federal financial assistance and applies to recipients of federal financial assistance from the Department of Education and to programs or activities receiving or benefiting from such assistance. It prohibits discrimination in the provision of benefits and participation in those programs or activities. Further, it requires those employers to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless it can be demonstrated that such an accommodation would impose an undue hardship on the operation of its program.

Nondiscrimination in Employment in Education Programs and Activities (34 CFR, Subtitle B, Chapter I, Part 106)

Implements Title IX of the Education Amendments of 1972, as amended. It prohibits discrimination based on sex in any education program receiving federal financial assistance. It also requires those employers to conduct a self- evaluation of their current policies and practices and authorizes them to undertake affirmative action to change any existing conditions that could limit participation by persons of a particular sex.

---

Equal Employment Opportunity Commission

Reporting and Record keepings (29 CFR, Chapter XIV, Part 1602)

Describes the type, manner and duration of records required to be maintained by an employer. Sections 1602.30 - 1602.37 specifically apply to state and local governments.

Sex Discrimination Guidelines (29 CFR, Chapter XIV, Part 1604)

Provides guidelines to employers, labor organizations and employment agencies regarding the principles the EEOC will follow in effectuating Title VIPs prohibition against discrimination on the basis of sex. The guidelines define sexual harassment and make such conduct a violation of Title VII.

Guidelines on Sexual Harassment

Sexual Harassment is defined by the EEOC Guidelines as:

"Unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature when:

1. submission to the conduct is either an implicit or explicit term or condition of employment; or
2. submission to or rejection of the conduct is used as a basis for an employment decision affecting the person rejecting or submitting to the conduct; or
3. the conduct has the purpose or effect of unreasonably interfering with an affected person's work performance, or creating an intimidating, hostile or offensive work environment."

Religious Discrimination (29 CFR, Part 1605)

Defines religious practice and clarifies the obligation imposed by Title VII on employers to accommodate the religious practices of employees and prospective employees unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.

National Origin Discrimination Guidelines (29 CFR, Part 1606)

Defines national origin discrimination broadly as including, but not limited to, the denial of equal employment. The guidelines prohibit citizenship requirements where the purpose or effect is discrimination on the basis of national origin. They advise that a requirement to speak English only at all times in the workplace is in violation of Title VII and will be closely scrutinized. The EEOC will apply the Uniform Guidelines on Employee Selection Procedures (see below) in determining if an employer's selection procedures had an adverse impact on the basis of national origin. Users are expected to evaluate height and weight requirements having adverse impact

Section 102 of the Immigration Reform and Control Act of 1986 provides for the appointment of a Special Counsel to prosecute "unfair immigration-related employment practices" which are protected by the Act. It is unlawful to intentionally discriminate in employment because of a person's national origin, citizenship status or intended citizenship status if an individual is lawfully entitled to work in the United States.

Uniform Guidelines on Employee Selection Procedures (29 CFR, Part 1607, 9/25118)

These guidelines, adopted jointly by the EEOC, the U.S. Civil Service Commission, the US Department of Labor, and the US Department of Justice, incorporate a single set of principles designed to assist employers, labor unions, employment agencies and licensing and certification boards in complying with the requirements of federal law prohibiting employment practices which discriminate on the basis of race, color, religion, sex and national origin. The guidelines apply to tests and other selection procedures which are used as a basis for making an employment decision. They require users to conduct validation studies, as described in the guidelines, where a selection procedure has had an adverse impact. In determining whether a selection procedure has had an adverse impact, the guidelines provide that the enforcing agencies will use the 4/5ths or 80% rule as a "rule of thumb": where the selection rate for any race, sex or ethnic group is less than 4/5ths or 80% of the selection rate of the majority group, it will be generally regarded as evidence of adverse impact.

Guidelines for Affirmative Action under Title VII of the Civil Rights Act of 1964 (29 CFR, Part 1608, 2120/79)

These guidelines provide guidance for employers in the development and implementation of voluntary affirmative action programs. They list circumstances under which voluntary affirmative action is appropriate. These include the remedying of adverse impact, correcting the effects of prior discriminatory practices and expanding limited labor pools. The guidelines prescribe three elements for affirmative action programs:

• a reasonable self-analysis;
• a reasonable basis for concluding action is appropriate; and
• reasonable action.

---

Department of Health and Human Services

Sex Discrimination in Health-Related Training Programs (45 CFR, Part 83)

Effectuate certain provisions of the Public Health Service Act. The objective of the regulations is to abolish the use of sex as admission criterion of individuals to all entities receiving support under the Act. This Act allows the maximum use of all available human resources in meeting the nation's need for qualified health personnel.

Nondiscrimination on the Basis of Handicap Rules for Federally Assisted Programs (45 CFR, Part 84)

This Act prohibits any program or activity receiving federal financial assistance from the Department of Health and Human Services from any form of handicapped-based discrimination, especially if that discrimination affects participation in any benefits that could be derived from the program.

---

Department of Labor

Apprenticeship and Training - Equal Employment Opportunity (29 CFR, Part 30, 4/12/78)

This Act is designed to promote equality of opportunity in apprenticeship programs by prohibiting discrimination based on race, color, religion, national origin or sex It requires affirmative action to provide equal opportunity.

Affirmative Action Requirements for Government Non- construction Contractors (Revised Order #4) - (41 CFR, Part 60-2)

These requirements are for non-construction contractors and subcontractors who meet certain other conditions, to develop a written affirmative action plan for each of their establishments and to designate an equal opportunity director. The required contents of an affirmative action program, including a utilization analysis and goals and timetables, are set forth in detail.

Affirmative Action Requirements for Government Construction Contractors (41 CFR, part 60-4)

These apply to all contractors and subcontractors which hold any federal or federally assisted construction contract in excess of $10,000. Specific published goals for the employment of women and minorities are issued by the Director of the OFCCP.

Sex Discrimination Guidelines for Government Contractors (41 CFR, Part 60-20)

These guidelines prohibit employment discrimination on the basis of sex and provide that wages must not be based on or related to the sex of an employee. They require employers to take affirmative action to recruit women to apply for those jobs from which they have been previously excluded.

Guidelines on Discrimination Because of Religion or National Origin (41 CFR, Part 60-50)

These prohibit discrimination by employers on the basis of national origin or religion and require affirmative action to remedy underutilization They require employers to make accommodations for religious observances and practice unless they would cause undue hardship on the performance of the contractor's business.

Affirmative Action Program for Disabled Veterans and Veterans of the Vietnam Era (41 CFR, Part 60-250)

This program applies to government contracts totaling $10,000 or more. It requires government contractors to take affirmative action to employ and advance qualified disabled veterans and veterans of the Vietnam Era. It requires each agency and contractor to include the affirmative action clause, as set forth in the regulation, in each of its contracts, which includes a statement that they will list all suitable openings with the appropriate office of the state employment service system. Contractors employing 50 or more employees who meet certain requirements are required to have a written affirmative action plan. They are also mandated to accommodate the physical or mental handicap of a disabled veteran unless it can be shown that it imposes an undue hardship on the business' operation. In determining the extent of a contractor's obligation, business necessity and financial costs and expenses may be considered.

Affirmative Action Obligations for Handicapped Workers (41 CFR, Part 60-741)

Government contractors with contracts of $2,500 or more are required to take affirmative action to employ and advance qualified handicapped individuals. Employers with 50 or more employees who meet certain other requirements are required to provide written affirmative action plans. Contractors must make reasonable accommodation to the physical or mental limitations of employees and prospective employees unless such accommodations can be shown to impose an undue hardship on the business' operation. Further, employers are required to designate an affirmative action director and to evaluate supervisors on the basis of their affirmative action effort.

Equal Pay for Equal Work under Fair Labor Standards Act (29 CFR, Part 800)

This Act provides official Department of Labor interpretations on the meaning and application of the equal pay provisions added to the Fair Labor Standards Act by the Equal Pay Act of 1983; it included a provision which prohibits discrimination on the basis of sex in the payment of wages with the exceptions of differentials based on:

1. a seniority system,
2. a merit system,
3. a system which measures earnings by production quality or quantity,
4. any other factor other than sex Equality of pay cannot be achieved by lowering the wage rate of any employee. Equal work in jobs is measured by equality of skill, effort, and responsibility required for performance and similarity of working conditions.

Age Discrimination in Employment (29 CFR, Part 860)

This provides guidelines to employers and employees as to how the Department of Labor will apply the Age Discrimination in Employment Act of 1967.

---

Office of Personnel Management

Nondiscrimination in Federally Assisted Programs in the Office of Personnel Management (5 CYR, Part 900, Subpart D)

Designed to effectuate Title VI of the Civil Rights Act of 1964, these regulations prohibit discrimination based on race, color or national origin in programs or activities receiving federal financial assistance from OPM. No person may be excluded from participation in, be denied the benefits of or be otherwise subjected to discrimination on those bases in any such program or activity. Application for assistance must contain an assurance that the requirements of this part will be complied with.

Standards for a Merit System of Personnel Administration (5 CFR, Part 900, Subpart F)

This part is designed to implement Title II of the Inter- governmental Personnel Act of 1970. It relates to federally required merit personnel systems in state and local agencies for employees engaged in administration of grant-aided programs. The standards include but are not limited to;

1. recruitment, selection and advancement of employees on the basis of relative ability, knowledge and skill, including open consideration of qualified applicants for initial appointment;
2. provision of equitable and adequate compensation; and
3. training employees, as needed, to assure high quality performance.

Nondiscrimination on the Basis of Handicap - Rules for OPM Assisted Programs (5 CFR, Part 900, Subpart G)

This effectuates Section 504 of the Rehabilitation Act of 1973 to eliminate discrimination on the basis of handicap in any program or activity receiving Federal assistance from OPM.

Return to Top ^