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
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:
- submission to the conduct is either an implicit or explicit term
or condition of employment; or
- 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
- 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
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,
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
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
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
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
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
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
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:
- a seniority system,
- a merit system,
- a system which measures earnings by production quality or quantity,
- 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;
- recruitment, selection and advancement of employees on the basis
of relative ability, knowledge and skill, including open consideration
of qualified applicants for initial appointment;
- provision of equitable and adequate compensation; and
- 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 ^