The Legal Environment of Affirmative Action
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Table of Contents
|Federal Laws & Executive Orders
1- see below
|Federal Agency Regulations
|State Laws and Executive Orders
|Major Federal Court Cases
|Major State Court Cases
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
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
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
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
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
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.
- Section 501- requires affirmative action in Federal employment.
- 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.
- 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.
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