Executive Order 11246 as amended by 11375

Cites: The provisions of Executive Order Number 11246 (Sept. 24, 1965) appear at 30 Fed. Reg. 12,319, and are set out as a note in 42 U.S.C. § 2000e. Executive Order Number 11,246 prohibits employment discrimination on the basis of race, color, religion or national origin. Executive Order Number 11,246 was amended by Executive Order Number 11375 on October 13, 1967 (32 Fed. Reg. 14,303), effective October 1968, to include gender as a protected class. See 41 C.F.R. § 60-1.1, 41 C.F.R. Part 60-2.1, and 41 C.F.R. § 60-20.1 et seq.

The Law: Prohibits employment discrimination based on race, color, religion, sex, or national origin. Governs any entity with government contracts that total $10,000 or more in a 12-month period.

Actions Necessary:

  • Written affirmative action program. If federal contracts worth $50,000 or more, and the institution has 50 or more employees, the institution must prepare a written affirmative action program. See 41 C.F.R. § 60-1.7. The contents of the plan must include a workforce analysis including progression charts, seniority rosters, applicant flow data and applicant rejection ratios.
  • Compliance review. Contracts greater than $1 million require a compliance review, including an onsite inspection of records. Initial and annual compliance reports required.
  • Program summary.The affirmative action program must be summarized and updated annually.
  • Produce report. The Fall staff survey of the Integrated Postsecondary Education Data System (Form IPEDS) (in place of the EEO-6 Higher Education Staff Information Report) must be produced biennially. See 29 C.F.R. § 1602.48-50. Required to keep any personnel or employment record for a period of not less than two years from the date of the making of the record or the personnel action, whichever occurs later (150 employees and a government contract of at least $150,000).
  • Recordkeeping. Title VII and the Americans with Disabilities Act of 1990 require a three-year retention period for the records which must be kept to file the Fall staff survey of the IPEDS report. (Regulations still refer to higher education staff information report, Form EEO-6, but this has not been used for a while.) The final rule, 62 Fed. Reg. 44,174 (Aug. 17, 1997), sets forth a two-year record retention requirement for any personnel or employment record made or kept by a contractor. This applies to records made or kept on or after September 18, 1997. See 41 C.F.R. § 60-1.12.
  • Posted notice. The specific language for the notice that must be posted can be found at 41 C.F.R. § 60-1.42.
  • Special affirmative action required. An employer must take affirmative action to recruit women for jobs where they have been previously excluded, and to admit women to company management training programs. See 41 C.F.R. § 60-20.6.
  • Access to records. Records must be made available for compliance evaluations. See 41 C.F.R. § 60-1.43.
  • Contract clause. The text of the clause that must be inserted in contracts can be found at 48 C.F.R. § 52.222-26.

Employment Standards Administration: Notice of final interpretive standards for systemic compensation discrimination under Executive Order 11246; 71 Fed. Reg. 35123, June 16, 2006

These final interpretive standards set forth three principal ways to analyze the employer's pay system to look for potential discrimination. The three ways are the similarly situated standard, the use of multiple regression analysis, and reliance on anecdotal as well as statistical evidence in deterimining if systemic compensation discrimination existss. The guidelines are effective immediately and are largely the same as the proposed guidelines issued in November 2004. Note that Jackson Lewis is planning complimentary webinars to explain the guidelines and discuss practical steps contractors can take to respond. Reliance on the previously used "pay grade" theory that was used to compare similarly paid but dissimilar jobs is found by OFCCP to be inconsistent with Title VII standards and not an efficient and effective method for OFCCP to accomplish its goals. See the BNA write up of the new rules and self-evaluation guidelines, entitled OFCCP issues Rule on Pay Bias, Guide for Self Evaluation. See also the Morgan Lewis June 16, 2006 newsflash on this topic for cautions on how to deal with the new rule.

Systemic compensation discrimination; self-evaluation of compensation practices; voluntary guidelines, 71 Fed. Reg. 35114 June 16, 2006

The final Voluntary Self-Evaluation Guidelines only require a multiple regression analysis for those establishments or AAPs that have 500 or more employees. OFCCP emphasizes that a multiple regression analysis is not required under 41 CFR 60-2.17(b)(3); rather, a contractor can opt to perform a multiple regression if it desires to obtain the compliance coordination incentive provided by these Voluntary Guidelines. Specifically, if a contractor performs a multiple regression analysis, which reasonably meets the standards outlined in the voluntary guidelines and the analysis finds no discrimination, OFCCP will consider the contractor's compensation practices to be in compliance with Executive Order 11246; in other words, OFCCP will not further investigate the contractor's compensation practices.

OFCCP Frequently Asked Questions Regarding Internet Applicant Requirements: Oct. 27, 2006.

For an excellent short summary of the these new FAQs, see the Morgan Lewis newsletter dated Nov. 1st, 2006.

Obligation To Solicit Race and Gender Data for Agency Enforcement Purposes; Final Rule, 70 Fed. Reg. 58946 (Oct. 7, 2005)

The final rule is intended to address recordkeeping requirements regarding applicants under all OFCCP recordkeeping and data collection requirements. While the rule appears at first glance to concern only internet applicants, it really covers more than this. If a search for a position yields applicants through both the internet and traditional means, this rule applies. It is effective Feb. 6, 2006 (with a grace period of 90 days) and imposes a record retention period of two years on all applicable records. Federal contractors are obligated to obtain gender, race and ethnicity data on employees, and where possible, on applicants. (41 CFR 60-1.12(c))Under the final rule, internet applicant is defined as follows:

Internet Applicant. (1) Internet Applicant means any individual as to whom the following four criteria are satisfied:
  1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies
  2. The contractor considers the individual for employment in a particular position
  3. The individual's expression of interest indicates the individual possesses the basic qualifications for the position
  4. The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position
(2) For purposes of paragraph (1)(i) of this definition, ``submits an expression of interest in employment through the Internet or related electronic data technologies,'' includes all expressions of interest, regardless of the means or manner in which the expression of interest is made, if the contractor considers expressions of interest made through the Internet or related electronic data technologies in the recruiting or selection processes for that particular position.

Note that what paragraph two is saying is that if you have a combination of a traditional search (hard copy resumes) and an internet search for a particular position, the record keeping requirements in this final rule cover both internet applicants and those persons sending in hard copy resumes. This is because comments to the rule indicated that the definition of applicant should not depend on the manner in which the application was made, as then any analysis of recruitment and hiring practices would not be meaningful.

For purposes of recordkeeping with respect to internal resume databases, the contractor must maintain a record of each resume added to the database, a record of the date each resume was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search; for purposes of recordkeeping with respect to external resume databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor . See the Bond, Schoenenck & King memo titled OFCCP Issues Final Rules On Federal Contractors' Recordkeeping Requirements With Regard To Internet Applicants for more information on the new rule.

Another resource is the DOL web page with a Internet Applicant Recordkeeping Rule.

Q and A to Clarify and Provide a Common Interpretation of Employee Selection Procedures as they relate to the Internet and Related Technologies, 69 Fed. Reg. 10152, March 4, 2004

The Uniform Guidelines on Employee Selection Procedures (found at 29 CFR Part 1607 and 41 CFR 60-3) were issued in 1978 by the EEOC, the Department of Labor, the Department of Justice, and the Office of Personnel Management under Title VII and Executive Order 11246. The UGESP serves two major purposes. First, it addresses certain recordkeeping issues. For example, UGESP describes the evidence that employers should have available to analyze whether their employment selection procedures had a disparate impact on protected groups. Second, UGESP details methods for validating tests and selection procedures that are found to have a disparate impact.

The focus of this document is interpreting the definition of "applicant" in the context of Internet and related electronic data processing technology. In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:

  1. The employer has acted to fill a particular position
  2. The individual has followed the employer's standard procedures for submitting applications
  3. The individual has indicated an interest in the particular position

If you feel unenlightened after reading this document, you are not alone. See Years of Waiting Produce Little Guidance For Employers on Definition of Applicant. Jackson Lewis Newsletter March 8, 2004.

Final Regulations on Federal Contractor Affirmative Action Programs

The Office of Federal Contract Compliance Programs (OFCCP) published final regulations on affirmative action requirements pursuant to Executive Order 11,246. See 165 Fed. Reg. 68021 (Nov. 13, 2000). The new regulations are effective December 13, 2000. Among the changes made by the regulations are the following:

  • The contractor may prepare either a traditional workforce analysis or a new "organizational profile." A sample organizational profile can be found in the comments to the regulations.
  • The eight-factor test for determining availability for job groups has been reduced to a two-factor analysis. These two factors are the same for minorities and for women. These two factors are:
    The percentage of minorities or women with requisite skills in the reasonable recruitment area. The reasonable recruitment area is defined as the geographical area from which the contractor usually seeks or reasonably could seek workers to fill the positions in question.
    The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization. "Trainable" refers to those employees within the contractor's organization who could, with appropriate training that the contractor is reasonably able to provide, become promotable or transferable during the affirmative action program year.
  • A number of required elements of the affirmative action program have been eliminated, and new components added.
  • The new regulations clarify that the recordkeeping provision on race, gender and ethnicity of applicants and employees is only applicable to applicants "where possible."
  • Each year, OFCCP will designate a substantial portion of all non-construction contractor establishments to prepare and file an Equal Opportunity Survey. OFCCP will notify those establishments required to prepare and file the Equal Opportunity Survey.

Revised Federal Race/Ethnicity Classifications:

The Office of Management and Budget has issued a directive containing revised standards for race/ethnicity reporting that must be utilized for all federal reporting. The initial deadline for the move to the new system was Jan. 1, 2003. NCES was given a waiver on implementation, and the new standards were to have been in place by academic year 2004-2005. This would have meant collection in the revised format would be mandatory for 2004 fall enrollment, and 2003-04 completion data. The latest word (as of May 2002) is that the revised method of data collection is now on hold . Universities will need to reengineer their data systems well in advance of whatever date is chosen for compliance with the new system.

Under the new reporting system, persons responding to the survey will be given the opportunity to select more than one racial category. When possible, the data collected should yield an aggregate count of those reporting they are of more than one race. A two-question format will be utilized. The first question will ask whether the individual is or is not of Hispanic or Latino ethnicity, and the second question will inquire as to the individual's race.