____________________ ________________________________, Date [District Director], (PLAN OR PROGRAM THAT RELIES ON GUIDELINES), TO: ______________________________, Director, FROM: Office of Legal Counsel, SUBJECT: Request for § 713(b)(1) Opinion Letter-Affirmative Action Plan Relying on Guidelines - Charge: _______________ v. _______________. For example, a plan might be established to benefit Hispanic applicants. Helpers would now do the unskilled jobs, while Junior Mechanics would continue to do tune ups. (It should be noted that under this subsection a plan can predate the adoption of the Affirmative Action Guidelines, without having to have been reviewed, revised, and reaffirmed after that date. Example - A White employee has been denied a promotion in favor of a Black employee. Similarly, a plan might include increasing the number of women in the employer's workforce from the present 10% of the civilian labor force to 20% next year, 30% the following year, and so on. In 2015, Justice Lewis Powell stated that in his opinion, lawful Affirmative Action programs could still exist if they were based on reasons beyond correcting past discrimination. (iii) Plans not approved - If no approved plan exists, the charge should be processed under §§ 607.11 et seq. In 2012, Fisher v. … Under the plan, R will increase the number of Blacks it hires into certain jobs gradually over a ten year period. The EOS should look for good faith on the part of respondent in terms of positive acts to keep the plan current and to accomplish the general goals outlined in the affirmative action plan. In order to reach the long range goal, the annual goals shouldn't be lower than the ultimate goal; they can, however, be equal to it or higher than it (as long as males are not excluded entirely). 11246 only if its Office of Federal Contract Compliance Programs (OFCCP) area or regional office requested one as part of a compliance review, or the plan is the result of a conciliation or settlement agreement or an agency order. (See § 607.8(a). (See § 607.15 for a discussion of what types of actions can be considered reasonable. OLC will submit its reasons for approving or denying respondent's request for a § 713(b)(1) LOD to the Commission's review process; OLC's evaluation of the LOD request will be based upon the general criteria for issuing opinion letters. They bring suit in federal district court, claiming that their First Amendment right to free speech was violated by the firing. Occidental Life Insurance Company of California v. EEOC, 432 U.S. 355, 14 EPD ¶ 7619 (1977). Respondent has requested a § 713(b)(1) letter of opinion. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. The Guidelines instruct the employer or labor organization on what steps to take to determine if voluntary affirmative action is appropriate and what types of action it can take (for the three step process, see § 607.1(e)). If the Commission denies respondent's § 713(b)(1) LOD request, then OLC will return the case to the district/area office under the cover memo at Exhibit 607-D with an explanation for denying respondent's request. The plan might not cover all job categories or all facilities. To establish the date of an unwritten plan, or of a written but undated plan, written corroboration should be obtained. In order to make this determination, the EOS should obtain a written statement from the respondent describing the affirmative action plan. The .gov means it’s official. Much of this conflict stems from the Supreme Court's decision in Regents of the University of California v. Bakke, 438 U.S. 265, 17 EPD ¶ 8402 (1978). 79-51, CCH Employment Practices Guide ¶ 6786; Commission Decision No. Mich. 1980); Minnick v. Department of Corrections, 95 Cal.App.3d 506, 20 EPD ¶ 30,233 (Ct.App. (6) To determine whether a respondent with a no cause determination is entitled to receive a § 713(b)(1) opinion letter, see § 607.5 above. (See §§ 607.11 et seq. 75-68, CCH Employment Practices Guide ¶ 6452; Commission Decision No. When a plan is accepted by the Commission as approved (pursuant to §§ 607.6 and 607.8(a) through (e)), then the entire plan is accepted -- including any actions set out in the plan (whereas, with general plans, the Commission must determine if the alleged discriminatory action taken furthered the plan's objectives). If the plan does not contain specific numerical goals and a timetable, the general goals and objectives should be evaluated against the progress made. (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont), (New Jersey, New York, Puerto Rico, Virgin Islands), (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia), (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee), (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin), (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming), (Arizona, California, Guam, Hawaii, Nevada). To be eligible for the letter, the respondent must meet the criteria set out in § 607.5(a)(1) below. A copy of the order, agreement, or submission should be obtained from the respondent or the 706 agency. When an affirmative action plan is approved (as defined in §§ 607.6 and 607.7) and adherence to the plan is found to be the basis for the complaint or the justification for the actions taken (according to § 607.8), a determination of no reasonable cause should be made. The White employee files a charge of race discrimination. 81-4, CCH Employment Practices Guide ¶ 6755. If there is a finding by a state or local Fair Employment Practices agency, whichever letter is used should be modified pursuant to § 5 of Volume I of this Manual.). A no cause determination in a charge involving an affirmative action plan means that the particular decision, practice, or policy involved in the charge was made pursuant to an affirmative action plan meeting the standards of the Guidelines. Example 1 - CPs, all Black, have filed a charge claiming that R has historically discriminated against Blacks in hiring. (See § 607.4). Example 1 - Upon analyzing its workforce and applicant flow, the Acme Engine Company realized that it employed very few women as mechanics, and that very few women applied for such jobs. [1] Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as amended, 44 Fed.Reg. President John F. Kennedy's Executive Order (E.O.)
An affirmative action plan must be designed to achieve the purposes of Title VII; i.e., to break down old patterns of segregation and hierarchy and to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. (7) Plans that are part of Commission conciliation or settlement agreements are CDP. Affirmative Action started in the United States thanks to an executive order by John F. Kennedy in 1961. Written plans usually will be dated; however, plans need not be written. ), When an affirmative action plan meets the requirements of §§ 607.11 through 607.15, the plan was in effect when respondent's actions were taken (see § 607.4), and adherence to the plan is found to be the basis for the complaint or the justification for the actions taken (according to § 607.16), a determination of no reasonable cause will be made. The court agrees and orders the university to rehire them. There is no requirement of an admission of prior discrimination before affirmative action can be taken. (See § 609, and contact OPI if further guidance is necessary.). (See § 604 of this Manual on disparate treatment.). Example 1 - R's major recruitment source for accountants is Ivy League universities, which are predominantly White and male. The legal system has played a powerful role in constructing and maintaining race and racial discrimination. However, if the respondent replies that its affirmative action plan was at least one consideration in its employment decision, then the EOS should resolve the affirmative action issue -- the respondent is essentially admitting that race, sex, or national origin (in the form of the affirmative action plan) was one factor in its decision. of Health, Education and Welfare); Commission Decision No. (2) Approved Plans - An employer or labor organization might also be required to develop and implement a plan under Executive Order No. The employer should look for the existence of adverse impact, disparate treatment, or practices and policies that leave uncorrected the effects of past discrimination. One of the general standards for reasonable action is that the plan be temporary. 29 C.F.R. (1) Past, Continuous, or New Discrimination - A respondent need not admit to past or present discrimination in order to adopt an affirmative action plan. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} A respondent may adopt the affirmative action plan described in the Equal Employment Opportunity Coordinating Council's "Policy Statement on Affirmative Action." Find your nearest EEOC office
(5) Transportation - A respondent may have a plant located away from minority residential areas; e.g., the plant may be located in the suburbs, while most minority group members live in the center city. (See § 607.4.) Then the Office of the Clerk of the issuing court should be contacted and copies requested. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} The policy now called affirmative action came as early as the Reconstruction Era (1863–1877) in which a former slave population lacked the skills and resources for independent living. (2) Determine whether the approved plan or agreement was still in effect when respondent's actions were taken. In the example above, Acme Engine Company also arranged for Mechanics Helpers to observe and assist Junior Mechanics in doing tune ups. (5) See § 607.9 below for instructions on when to make a no cause determination based on the information obtained in § 607.7(c)(1) through (4). A respondent might assert its affirmative action plan or program as a justification (defense) to a charge of discrimination, and fail to ask for a written opinion under § 713(b)(1) of Title VII. See Commission Decision No. (2) Determine whether the order or decree was issued to enforce a federal, state, or local fair employment practices law or regulation. However, if the respondent's actions were taken after the order or decree expired, the charge should be processed under §§ 607.11 et seq. In some instances a respondent may allege that the charge involves policies or practices taken pursuant to an approved affirmative action plan, but there may not be adequate evidence of approval or, for other reasons, investigation may not show that the plan or program was approved in the manner set forth in § 607.7 above. If there is any uncertainty as to the authority of the approving official, contact the agency or office directly. 79-62, CCH Employment Practices Guide ¶ 6798 . The long term effect of the pre-Act discrimination, then, is that all of R's current supervisors are those White employees hired prior to 1964. Another interpretation might require some sort of formal administrative, legislative, or judicial approval. For federal contractors and subcontractors, affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. CP's charge of discrimination based on R's failure to meet the plan's goals should be dismissed for lack of jurisdiction. affirmative defense of lack of jurisdiction and, on occasion, the affirmative defense of the statute of limitations. Approval by these agencies or the Department of Labor directly would be indicated either by a letter from the appropriate official accompanying the plan or agreement or by the signature of that official directly on the plan or agreement. R has a reasonable basis for believing that affirmative action is appropriate. 81-13, CCH Employment Practices Guide ¶ 6766; Commission Decision No. (2) Determine whether the agreement was still in effect when the respondent's actions were taken. For example, in Commission Decision No. R claimed that sex played no part in its selection decision, but noted that the selection helped fulfill the 50% goal.