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Debra A. Millenson

Excerpted from:  Debra , W(h)ither Affirmative Action: The Future Of Executive Order 11,246, 29 University of Memphis Law Review 679-737, (Spring/Summer, 1999) (Footnotes Omitted).

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III. History of the Executive Order Program

A. The War Years

The fundamental principle underlying basic economic theory--the law of supply and demand--applies to the labor market as it does to other areas of commercial endeavor. When the supply of labor exceeds demand, wages are relatively depressed; when demand ex-ceeds supply, wages rise. When an employer discriminates against a particular segment of the labor pool, for example, minorities, its supply of workers diminishes, and, accordingly, its wage costs rise. These costs are then passed along to the consumers, including the federal government.

Through the Federal Property and Administrative Services Act of 1949 (the Procurement Act), Congress authorized the President and his subordinates to purchase goods and services for the Executive Branch. The Act further authorizes the President to prescribe "such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of said Act." The President has authority to exercise this power subject to broad statutory guidelines, set out in section 201 of the Act, which establish that government procurement policy, "to the extent . . . advantageous to the Government," shall promote "economy, efficiency, or service." Thus, the procurement statute itself recognizes the broad discretion of the executive to determine appropriate procurement policies within the framework established by Congress.

The Executive Order assists the government in reducing expenditures and promoting greater efficiency. It requires the government to consider all qualified individuals for employment; to choose among them without regard to race, gender, or national origin; and to engage in outreach to encourage the broadest possible group of qualified individuals to enter the supply or applicant pool. In so doing, it advances the purposes of the Procurement Act.

The first Executive Orders addressing discrimination in private sector employment grew out of the unique labor market conditions created by America's entry into World War II. In 1941, President Roosevelt issued two Orders-- Executive Order 8802 and Executive Order 9001 -- which required that all defense contracts contain a clause pursuant to which the contractor agreed to refrain from discriminating on the basis of race or national origin. Where such a clause was not set forth expressly, Executive Order 9001 directed that it be incorporated by reference. These Orders found their basis in the President's war powers and were not challenged either in Congress or the courts. In 1943, the President extended the scope of Executive Order 8802 by requiring that all government contracts contain a nondiscrimination clause. Although the new Order extended to non-defense contracts, this expansion was grounded in the overall war effort and the need to maximize the pool of workers available for defense production. What began with war production was perpetuated by President Truman through a series of post-war Executive Orders. The responsibility for obtaining compliance with these nondiscrimination provisions was consolidated in the Committee on Government Contract Compliance created by Executive Order 10,308. The basis for this order, like those preceding it, continued to be the President's authority to provide for the national defense.

In 1954, Executive Order 10,557 again addressed the issue of employment discrimination by government contractors, specifically prohibiting those contractors from discriminating on the basis of race, religion, color, or national origin in "employment, upgrading, demotion or transfer." Although this order was the most far reaching pronouncement of its time, it did not address the issue of affirmative action. Affirmative action was first raised in 1961, when President Kennedy issued Executive Order 10,925. While asserting that affirmative action was designed to ensure "the most efficient and effective utilization of all available manpower(,)" the Order required no new action by contractors. It required only the certification that they would "take affirmative action to ensure that applicants are employed, and that employees are treated during (their) employment, without regard to their race, creed, color, or national origin."

In 1963, the President extended the coverage of Order 10,925 to include federally assisted contractors--for example, those whose business (typically construction) was supported by federal funds--by issuing Executive Order 11,114.

The affirmative action provision of 10,925 was unchanged by this Order; a contractor had to certify that it would take affirmative action but was not required to adopt any specific measures to accomplish this task.

B. Affirmative Action and the Discrimination/Economic Efficiency Nexus

Following the passage of Title VII of the Civil Rights Act of 1964, which signaled a significant national commitment to a social policy of dismantling discrimination, President Johnson issued Executive Order 11,246. Although initially limited to discrimination based on race, color, religion, or national origin, the Order was soon amended to address the issue of gender discrimination as well. This new Order reflected the President's perception that merely prohibiting future discrimination would not create equal employment opportunity for all. Rather, to truly level the playing field, affirmative measures were required to undo the consequences of the historic exclusion of minorities and women from many areas of the workplace. The President's authority to issue this Order derived from his authority to ensure that government procurement was conducted in an economical manner.

The relationship between the Executive Order and expansion of the supply of labor is not merely theoretical. Rather, research studies have demonstrated that employment opportunities for minorities and women have been measurably enhanced by the operation of the contract compliance program. The nexus between economy and efficiency and the Executive Order is promoted by its affirmative action provisions as well as its nondiscrimination provisions. Under the Executive Order program, affirmative action means outreach and recruitment efforts to broaden the contractor's labor supply, and systemic efforts by the contractor to find and eliminate any discrimination or to prevent it before it occurs. The affirmative action need not entail reverse discrimination or preferences, and, indeed, such discrimination and preferences are not permitted under the Executive Order program. The Executive's conclusion that the eradication of discrimination is empirically related to economy and efficiency in government contracting is a product of its expertise and is entitled to deference.

The required nexus is not diminished by the costs entailed in a contractor's developing and implementing an affirmative action program as required by the Executive Order. These costs are no different from those incurred by businesses required to comply with other federal procurement regulations. The Federal Acquisition Regulations (FAR), for example, consists of more than 5000 pages; the standards it sets for accounting, inspection, progress reports, and audits all constitute time-consuming and costly aspects of government contracting. The standard of reasonableness by which these requirements are judged is the same one that should be applied when looking at requirements relating to affirmative action.

The earliest challenges to the constitutionality of the Executive Order were directed at the scope of executive authority. During the 1970s, courts found that Executive Order 11,246 was an appropriate exercise of presidential discretion. The Order was found properly to serve the purpose of reducing the long-term cost of procurement, and hence to promote economy and efficiency in government contracting by ensuring that government "'suppliers are not over the long run increasing its costs and delaying its programs by excluding from the labor pool available minority workmen(.)"'

Courts have consistently held that "construction of a statute by those charged with its execution should be followed unless there are compelling reasons that it is wrong." This is particularly true where, as with the Procurement Act, the Executive Branch has been delegated by statute the express authority to promulgate such rules and regulations as the President deems necessary to carry out the provisions of the statute. Thus, the question of authority to issue the Executive Order has been limited to whether the President could reasonably determine that the Order furthers those purposes.

C. Congressional Review of the Executive Order Program

There are numerous examples of the review process by which Congress, over time, has made clear its view that the Executive Order program advances important government procurement objectives. Congress has also defined the scope and power of the Executive Order in relation to other federal equal employment opportunity remedies. Similarly, the courts have repeatedly recognized Title VII as a source of authority or approval for the Executive Order.

An early example of Congressional approval is found in the 1964 Civil Rights Act, in which Congress made express reference to Executive Order 10,295, the predecessor to Executive Order 11,246, in section 709(d). Section 709(d) plainly acknowledges the inter-relationship between Title VII and the Executive Order program; it prohibits the EEOC from requiring employers to submit reports if those employers are already submitting related reports under the Executive Order program.

In 1969, Congress defeated efforts to bar the Philadelphia Plan, a program under which OFCCP established minority goals applicable to federally assisted construction projects in the Philadelphia area. At the time the plan was adopted, the Attorney General analyzed the question of whether the goals it established were permissible; he upheld the plan. The Senate reacted to the program by adopting an amendment, Senate Report 616, to a pending supplemental appropriations bill, House Bill 15209, which provided:

No part of the funds appropriated or otherwise made available by this or any other Act shall be available to finance, either directly or through any Federal aid or grant, any contract or agreement which the Comptroller General of the United States holds to be in contravention of any Federal statute(.)

The surrounding remarks made it clear that this amendment was designed to invalidate the Philadelphia Plan. On December 22, 1969, however, the House refused to accept the Senate amendment; the Senate then agreed to its deletion from the appropriations bill.

During the debate, Representative MacGregor spoke in opposition to the Senate amendment "as a member of the House Committee. . . who was pleased to play a role in the draftsmanship and passage of Title VII," and remarked:

(T)he United States as a contracting party may not require an employer to engage in practices which Congress has prohibited. It does not follow, however, that the United States may not require of those who contract with it certain employment practices which Congress has not seen fit to require of employers generally.

Thus, the issue raised in the debate over the proposed amendment was clearly framed: whether the affirmative action provisions of the Executive Order as implemented in the Philadelphia Plan contravened legislative intent. By its vote, Congress declined to limit Executive authority.

The 1972 amendments to the 1964 Civil Rights Act provided yet another example of congressional approval of the Executive Order program. New section 718 of Title VII regulates the denial, suspension, and termination of contracts by OFCCP. This provision constitutes a specific recognition of OFCCP's power to deny or terminate a contract under the Order following a hearing, and to deny a contract without a hearing if the contractor does not have an approved affirmative action plan or has deviated substantially from an approved affirmative action plan.

Congressional approval of the Executive Order has been constant over time. In a series of enactments between 1979 and 1981, Congress gave its imprimatur to the Order's affirmative action program by requiring that various railroads honor "(any) affirmative action plan. . . required by. . . executive order." In 1988, through amendments to the Fair Housing Act, Congress enacted legislation which provided that the Secretary of Housing and Urban Development report annually to Congress and make available to the public such information as is required by, inter alia, Executive Order 11,246.

During the past decade, congressional endorsement of the Executive Order has continued. During the early debate over the Civil Rights Act of 1991, Senator Helms proposed an amendment to section 703(j) of Title VII outlawing preferential treatment on the basis of race, color, gender, or national origin. Although even this limiting amendment would have permitted an employer to maintain "an affirmative action program designed to recruit qualified minorities and women to expand the applicant pool," it was defeated sixty- seven to thirty-three following a lengthy debate in which many senators expressed the view that the need for affirmative action in employment remained.

In fashioning the Americans with Disabilities Act (ADA), Congress addressed the need to integrate the requirements of the new law with the existing demands of the Rehabilitation Act of 1973. Title I of the ADA, which is to be administered by the Equal Employment Opportunity Commission (EEOC), prohibits employers of a certain size from discriminating on the basis of disability. The Title thus resembles section 503 of the Rehabilitation Act but applies more broadly to employers who are not federal contractors. Turning to an existing model, Congress provided in section 107 of the ADA that OFCCP and EEOC were to establish mechanisms for coordinating enforcement of section 503 and the ADA similar to those the agencies established in 1981 to coordinate enforcement of the Executive Order and Title VII.

Most recently, Congress has studied the issue of regulatory burdens that federal laws in general place upon private businesses. In acting to reduce those burdens, however, Congress has expressly preserved the Executive Order program. Significantly, this approval has continued even after the Supreme Court decision in Adarand Constructors, Inc. v. Pena.

The intent to ratify Executive Order 11,246 can also be found in congressional action with respect to the procurement process generally. For example, when Congress created the Commission on Government Procurement, it charged the Commission with studying existing procurement regulations and policies and recommending changes to promote economy, efficiency, and effectiveness in the procurement process. 8 The Commission's final report called for, inter alia, the establishment of an Office of Federal Procurement Policy (OFPP) to centralize and streamline government procurement regulations and policies, a recommendation implemented by Congress in the 1974 Federal Procurement Act.

Congress charged the Administrator of OFPP with the ultimate authority to ensure that government-wide regulations, procedures, and forms relating to procurement are timely promulgated and properly maintained. The vehicle adopted to accomplish this task, the FAR, published by the Department of Defense, General Services Administration, and NASA under the general supervision of the OFPP Administrator, serves to codify and publish "uniform policies and procedures for acquisition by all executive agencies."

The FAR was promulgated in final form on September 19, 1983. Among the policies incorporated therein is Executive Order 11,246. Since its adoption, Congress has reviewed the procurement policies that were contained in the 1983 regulations, including the Executive Order, and approved them by enacting the Act of December 1, 1983, which provided: "Procurement policies, regulations, procedures, or forms in effect on December 1, 1983, shall continue in effect, as modified from time to time, until repealed, amended, or superseded by policies, regulations, procedures, or forms promulgated by the Administrator (of OFPP)." Although the FAR has been substantially revised over the past fifteen years, the provision containing the Executive Order has not been "repealed, amended or superseded."

Congress has engaged in ongoing and thorough oversight of OFCCP activities, repeatedly stating its concerns that the mission of the agency be effectively achieved. Between 1975 and 1986, for example, a total of twenty oversight hearings concerning OFCCP activities were conducted by the House Subcommittee on Employment Opportunities. The conclusion to be drawn from these oversight hearings was that Congress approved of Executive Order 11,246 and wished to see it effectively enforced. Senator Hatch noted:

It is because of our continued commitment to these goals (eliminating discrimination and improving employment opportunities for women and minorities) and our interest in renewing our national effort that we undertook a study of the Executive Order 11,246 program. We had two objectives in mind: one, to evaluate OFCCP's effectiveness in administering the Executive Order 11,246 program; and two, to develop answers as to how best the Federal Government can pursue two important national goals-- eliminate discrimination and increase employment opportunities for women and minorities--that was, of course, the original intent of the order.

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Finally, I see hearings such as these--which focus on helping and even challenging our Government's agencies--as an effective vehicle for renewing our commitments and keeping our institutions responsive to the needs of the times.

Congress has been aware of the commitment of the Executive Branch to the Executive Order program, a commitment that has transcended partisan and ideological divisions. As President Nixon stated in his 1971 State of the Union message: "Neither the President nor the Congress nor the conscience of the nation can permit money which comes from all the people to be used in a way which discriminates against some of the people." Through annual appropriations legislation, Congress has required the Department of Labor to maintain the Executive Order program. Indeed, in fiscal year 1988, following publication of a House committee staff report recommending more vigorous enforcement of the Executive Order program, Congress substantially increased the funds available to the agency to raise OFCCP's staffing to a new total of 970 employees, 510 of whom were to be field office equal employment opportunity specialists. The committee report and appropriations measure were responses to an Executive proposal to downsize substantially the program. This congressional directive, accomplished through a yearly appropriations measure, specifically assured that the administration would continue its enforcement of the Executive Order program. Indeed, under appropriation laws, the Executive generally must spend funds for the purpose for which those funds are appropriated. Neither the changes in administrations, nor those involving control of Congress, have altered the commitment to fund OFCCP and the Executive Order.

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VII. Conclusion

Recent studies belie the suggestion that affirmative action in employment is no longer necessary thirty-five years after the adoption of Executive Order 11,246--that we are entering the new millennium as a color-blind society and that "further action to help bring about equality is both unnecessary and unconstitutional." Despite recent overall economic growth, substantial racial, ethnic, and gender disparities remain. As Congressman Cleo Fields stated:

After 250 years of slavery, 100 years of apartheid, the 1954 decision ending segregation, nondiscrimination laws--negative action to offset negative behavior, and then positive action to overcome the vestiges of a discriminatory past--we are not yet to the day of Dr. King's rainbow. It is a myth that affirmative action is no longer necessary.

While headlines in February, 1999, trumpeted the latest decline in unemployment rates for minorities, the Labor Department statistics documenting that decline still demonstrated that unemployment of African-Americans (7.8%) was more than twice that of whites (3.8%); unemployment of Hispanics (6.6%) was 75% higher than that of whites. The rate of unemployment for African-American teenagers in that month was more than 29%.

Among the employed, women and minorities remain predominantly at the lower rungs of the job ladder in both the public and private sector. During the 1990s, for example, total minority employment in the federal government increased slightly (from 27.4% to 29.4%). In 1997, minorities occupied nearly 43% of clerical positions, the lowest paying white collar jobs. In contrast, minority representation in professional jobs was less than 21%. The experience of women is similar. In 1997, women comprised 44% of the overall federal workforce and 49.5% of the white collar workforce. However, only 38.2% of government professionals were women, as opposed to 82.5% of clericals. Minorities represent only 12% of the government's approximately 7000 member Senior Executive Service; women hold 21% of those jobs.

Pay disparities between men and women, minorities and non-minorities abound, and the pay gap is not merely a blue collar phenomenon. The American Association of University Professors found recently that, although the percentage of women in academic positions increased by nearly 50% between academic years 1974-75 and 1997-98, the wage gap between men and women during that period widened. Tenured female professors earned 91% of the average wage paid in 1974-75 to tenured men. By 1997-98, women earned only 87.5% of the average male salary. OFCCP's recent pay equity initiative has recovered substantial back pay and obtained future salary adjustments for women and minorities in all sectors of private employment. Settlements ranging from thousands to millions of dollars have been achieved with companies such as Xerox, CoreStates Financial, Texaco, Fairfax (Virginia) Hospital, and USAirways.

In the legal profession, women and minorities suffer in pay, progress, and the terms and conditions of their employment in comparison to their white male colleagues. Minority attorneys now make up approximately 7% of the profession; women make up more than 40%. Yet a 1998 survey of more than 80,000 attorneys in thirty-two cities showed that only 3% of law firm partners were minorities, and only 14.9% of partners were women. These figures are confirmed on local levels. Of the fifty largest Los Angeles firms, six have female managing partners. In New Hampshire between 1988 and 1998, the percentage of female attorneys grew by more than 50%. At the same time, the average pay gap between male and female attorneys widened from $3000 to $13,000 per year. Women and minorities are greatly underrepresented as judges and academicians. Furthermore, nationwide, two-thirds of the women in private practice and one-half of those employed by corporations or private agencies reported experiencing or witnessing sexual harassment by male superiors.

The disparities are not limited to law firms and are reflective of the treatment of professionals in other fields. In the corporate world, the glass ceiling is alive and well. According to Congressman Cleo Fields:

The Glass Ceiling Report, a study commissioned by the Department of Labor and created by the 1991 Civil Rights Act by a bipartisan majority in this Congress, and a Republican administration, found that women in the largest corporations hold less than 5 percent of the top management posts, while African-Americans, Latinos, and Asian-Americans, hold less than 1 percent of these positions. White males comprise 43 percent of the work force, yet hold 95 percent of these jobs.

Women receive one-third of all MBAs and one-half of undergraduate degrees in business and management, but women hold only 10% of the positions as corporate officers of the nation's 500 largest corporations and only 3% of top officer posts (CEO, COO, President, Chair, Vice Chair, and Executive Vice President).

Discrimination in our country reaches from the board rooms to the playing fields and to places in between. Although 52% of NCAA Division I-A (major tier) college football players are African- American, only five of the 112 head football coaches at that level are black. At the next level, Division I, fully 60% of the players are African-American, compared with just 28% of head coaches. Outside the nation's historically black universities, only eleven of the 310 athletic directors in Division I are African-American. The situation is mirrored in professional sports: the National Football League presently has only three African-American head football coaches; the National Basketball Association, in which more than 70% of the players are African-American, has a head coaching roster that is more that 75% white.

The images we see on our television news programs are similarly unrepresentative of America. A study for the Center for Media and Public Affairs reports that for the past three years, the top five visible anchors on the national news were white men, as were fifteen of the top twenty visible reporters. In 1998, women reported 19% of news stories and represented 25% of the top twenty visible reporters; minorities reported 10% of the national stories, and only one of the top twenty visible reporters was a minority individual. According to the Center's Director, Robert Lichter, the networks now "have higher priorities" than diversity. One commentator noted:

Opponents of affirmative action, who use the issue as a wedge to divide society for the sake of political expediency, uniformly deny that discrimination continues to be a pervasive evil--a fact of life for a majority of Americans. Opponents perpetuate the idea of achieving a color-blind society despite overwhelming evidence of discrimination against people of color. When opponents present their rationale for eliminating affirmative action as a remedy for such discrimination, they often take Dr. King's quote about "judging people by the content of their character and not the color of their skin" out of context. What Dr. King actually said was that "He looked forward to the day" that people would be judged by the content of their character, not the color of their skin. We know that such a day has yet to arrive.

The belief that we as a nation have overcome our discriminatory past and that our government no longer has a compelling interest in affirmative action distorts the reality of our society at the end of the millennium. It leads us to ignore the message of Judge A. Leon Higgenbotham, Jr.: "(O)ut of 268 first-year students enrolled at the law school of the University of California (after the passage of Proposition 209), only one is African-American. Out of 468 at the University of Texas School of Law (after Hopwood), only four are." 3 Moreover, it leads us to ignore the blatant racism of Texaco's "black jelly beans" comments and the factory-wide, systematic sexual harassment at Mitsubishi. 3 It fails to foresee that in 1998, firemen in Queens, New York, would wear black face at a Labor Day parade, tossing pieces of watermelon, posing next to fried chicken cartons, and dangling from the back of a pickup truck to mimic the race- motivated dragging murder of James Byrd, Jr., in Jasper, Texas. In other words, it denies that racism and sexism still exist, and that measures to even the playing field are still an element of fairness and not necessarily tantamount to favoritism.

Inclusive affirmative action like that required by Executive Order 11,246 is necessary to ensure that women and minorities are made aware of the opportunities present in their places of work, and that employers remain cognizant of their obligation to afford those opportunities to all employees without either conscious or unconscious bias. Affirmative action serves only to foster competition and cannot justifiably be defined as an unconstitutional program of racial, ethnic, or gender classification. The history of racial and gender exclusion in this country is long. For the past thirty-five years, Executive Order 11,246 has assisted us in overcoming that heritage; it has withstood constitutional challenges throughout its existence. Its continued vitality is essential if America is to continue its journey toward an equal and color-blind society.