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State Management Personnel Manual

The Legal Environment of Affirmative Action

0400 Affirmative Action
March, 1990
This document has been broken down into five sections for faster downloading. Use the arrows at the top and bottom of each to go to the next section or return to the previous one. Use the Table of Contents below to go to any section directly. Please note that this material was scanned in and this results in errors. We have corrected those we've found, but...

Table of Contents

Federal Laws & Executive Orders
1- see below
Federal Agency Regulations
State Laws and Executive Orders
Major Federal Court Cases
3 and 4 and 5
Major State Court Cases
Go to Section Two


The legal evolution of affirmative action requirements has its roots in the United States Constitution. First, civil rights were provided for increasing numbers of citizens. Next, acts interfering with those rights were prohibited, which in turn provided the foundation for the laws and regulations that require affirmative action to provide redress for citizens denied the exercise of those rights.

The following is a summary of the major laws, regulations and court cases which affect current policy and programs dealing with employment practices.

Federal Laws and Executive Orders

1st Amendment to the Constitution - provides for the free establishment and exercise of religion, freedom of speech and the press, the right to peacefully assemble, and the right to petition the government to redress grievances.

5th Amendment to the Constitution - provides for due process of law if a person is to be deprived of life, liberty or property.

13th Amendment to the Constitution - abolished slavery and involuntary servitude and provides for Congressional enforcement by appropriate legislation.

14th Amendment to the Constitution - prohibits the states from making or enforcing any law which diminishes the privileges and immunities of citizens of the United States; prohibits states from depriving any person of life, liberty or property without due process of law or denying any person the equal protection of the laws.

Civil Rights Act of 1866 and 1870 (42 USC Section 1981) -1870 "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens..."

Civil Rights Act of 1871(42 USC Section 1983) - "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or. Territory... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Civil Rights Act of 1871(42 USC Section 1985) - makes it unlawful to conspire to deprive any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws. It allows the injured party to take action to recover damages from one or more of the conspirators.

Presidential Executive Order 11141 (29 FR 2477) - prohibits discrimination by Federal contractors and subcontractors against persons because of their age in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment except upon the basis of a bona fide occupational qualification (BFOQ), retirement plan or statutory requirement. Additionally, it prohibits contractors and subcontractors from specifying a maximum age limitation in solicitations or advertisements for employees, unless a BFOQ

Civil Rights Act of 1964 - Title VI (42 USC Section 2000d) - prohibits discrimination on the basis of race, color or national origin, in programs or activities that receive Federal financial assistance.

Title VII (42 USC Section 2000e, et seq) - defines unlawful employment practices and prohibits employment discrimination on the basis of race, color, religion, sex or national origin. The Equal Employment Opportunity Act of 1972 extended coverage of Title VII to all states and their political subdivisions.

Presidential Executive Order 11246 (30 FR 12319) - requires every nonexempt Federal government contract to contain pro- visions barring contractors and subcontractors from discriminating against employees or applicants on the basis of race, color, religion, sex or national origin. It mandates the use of affirmative action to insure that applicants and employees are employed without regard to those factors. Responsibility for administration was delegated to the Secretary of Labor.

Further, it prohibits discrimination in Federal employment on the basis of race, color, religion, sex or national origin and delegates authority to the U.S. Civil Service Commission to provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment.

Presidential Executive Order 11375 (32 FR 14303) - amended Executive Order 11246 to change creed to religion and to prohibit sex discrimination.

Age Discrimination in Employment Act of 1967, as amended in 1978, (AREA) (29 USC Sections 621-634) - prohibits employers, labor organizations, employment agencies, and State and political subdivisions from employment discrimination against individuals who are at least 40 but less than 70 years of age. The EEOC is responsible for enforcing the AREA.

The AREA was amended in 1986 to remove the maximum age limitation and to provide that it shall not be unlawful for a state, a political subdivision, agency, its subsidiary, or an interstate agency to fail or refuse or hire or to discharge individuals because of age due to to their employment as firefighters or law enforcement officers because of an age requirement in state or local law in effect on March 3,1983. Enforcement of the law in the hiring of firefighters and law enforcement officers is suspended until December 31, 1993.

Civil Rights Act of 1968 (18 USC Section 245) - similar to the Civil Rights Act of 1871, it lists certain federally protected rights and makes it unlawful to willfully injure, intimidate or interfere with any person because of their race, color, religion or national origin or because they are exercising rights which include, but are not limited to: a person's participation in federal protected benefits or activities, such as enrolling or attending public school or college; serving in any court as a grand or petit juror, and traveling in or using any facility of inter-state commerce. It provides for enforcement by the US Attorney General.

Presidential Executive Order 11478 (34 FR 12985) - superseded Part I of Executive Order 11246 and those parts of Executive Order 11375 which apply to federal employment. It prohibits discrimination in federal employment on the basis of race, color, religion, sex or national origin and requires the head of each executive department and agency to establish and maintain an affirmative program of equal employment opportunity. It assigns responsibility to the US Civil Service Commission to provide leadership and guidance and to provide for the prompt, fair, and impartial consideration of discrimination complaints.

State and Local Fiscal Assistance Act of 1972 - Revenue Sharing Act (31 USC Section 6701, et seq) - provides for the sharing of funds collected from the federal income tax with state and local governments. Section 6716, the nondiscrimination provision of the Act, prohibits a state government or unit of local government from discriminating on the basis of race, color, national origin or sex under any program or activity receiving funds made available by the Act; applies prohibitions of the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973; prohibits discrimination on the basis of religion as provided in the Civil Rights Acts of 1964 and Title VIII of the Civil Rights Act of 1968. This Act falls under the authority of the Secretary of the Treasury, who is required to try to make agreements with heads of state agencies to investigate non-compliance. The United States Attorney General has been delegated the authority to initiate pattern-or-practice suits against state or local governments for violations of this provision.

Rehabilitation Act of 1973, as amended (29 USC Section 701 et seq) authorizes programs to promote and expand employment opportunities in the public and private sectors for handicapped individuals.

Important provisions:

  1. Section 501- requires affirmative action in Federal employment.
  2. Section 503 -Obliges federal contractors and subcontractors not to discriminate against employees and applicants on the basis of handicap and to undertake affirmative action to provide employment opportunities for the handicapped. Responsibility for enforcement rests with the OFCCP of the US Department of Labor.
  3. Section 504 -Prohibits discrimination against otherwise qualified handicapped persons by federal agencies and in programs or activities receiving federal financial assistance. Enforced by compliance offices in each individual federal agency with overall enforcement responsibility held by the Attorney General. The penalty for noncompliance is termination of finding to the program found to be in violation.

Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38 USC Sections 2011, 2012, 2014) - requires federal contractors to take affirmative action to employ and advance qualified special disabled veterans and veterans of the Vietnam Era. The term "special disabled veteran" means a veteran who is entitled to compensation under laws administered by the Veterans' Administration for a disability rated at 30 percent or more, or a person discharged or released from active duty because of a service connected disability. The Act provides for the Secretary of Labor to investigate and take appropriate action with regard to complaints by such veterans that contractors are not carrying out these provisions.

Age Discrimination Act of 1975 - This Act, similar to Title VI of the Civil Rights Act of 1964, prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance, including assistance under the State and Local Fiscal Assistance Act of 1972. The Department of Justice is responsible for enforcement. This Act does not supersede or modify the Age Discrimination in Employment Act of 1967.

Civil Rights Attorney's Fees Awards Act of 1976 (42 USC Section 1988) - permits courts to allow reasonable attorney's fees as part of costs to the prevailing party, other than the United States, in actions to enforce 42 USC Sections 1981,1983,1985 and 1986, Title VI of the Civil Rights Act of 1964 and Title IX of Public Law 92-318.

Presidential Executive Order 12250 (45 FR 72995) - revokes Executive Order No. 11764 and provides for the Attorney General to coordinate the implementation and enforcement of the following laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973, as amended. Although in effect, this order is 'under review" by the Federal Task Force on Regulatory Relief.

Go to Section Two

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