Regulation of Federal Contractors

Author:George Rutherglen

The most comprehensive prohibitions against discrimination by federal contractors are derived not from a statute but from a presidential order. Executive Order 11,246 prohibits discrimination and requires affirmative action on the basis of race, national origin, sex, and religion.[916] Like section 503 of the Rehabilitation Act,[917] the executive order is enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor. Unlike section 503, however, the executive order has never been explicitly authorized or enacted by Congress, a deficiency that gives rise to persistent questions about its scope and validity.

The executive order states the obligations of federal contractors in only the most general terms, which are then spelled out in great detail in the regulations issued by the OFCCP. The resulting scheme of regulations is as elaborate as the statutory law under Title VII, but differs from it in several crucial respects. First, the executive order requires affirmative action rather than simply the prohibition of discrimination. Second, it is enforced mainly through administrative procedures instead of private litigation. Third, the executive order has been interpreted and implemented primarily through administrative regulations rather than judicial opinions. A full account of the employment obligations of federal contractors would go into each of these features in great detail. This section can only summarize them briefly.

Executive Order 11,246 applies to all contractors with contracts in excess of $10,000, and it imposes increased compliance and reporting requirements on contractors with contracts in excess of $50,000.[918] It imposes nondiscrimination and affirmative action obligations, but only the latter have been controversial. Employers with contracts in excess of $50,000 must prepare written affirmative action plans containing a "work force analysis"; a determination whether any racial or ethnic minority group or women have been "underutilized" by the employer; and "goals and timetables" to remedy any underutilization found.[919] The regulations elaborate on each of these three requirements and add further requirements as well, and compliance is enforced by administratively imposed sanctions.[920] Moreover, special provisions apply to employers with federal construction contracts in excess of $10,000, including goals set by the OFCCP for employment of minority groups and women in most major...

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