Under Executive Order 11246 and its implementing regulations, federal contractors having 50 or more employees and $50,000 in federal contracts must prepare a written affirmative action program. The Executive Order, signed by former President Lyndon Baines Johnson in 1965, requires both nondiscrimination and affirmative action. The written affirmative action program enables contractors to monitor their workforces, identify and eliminate barriers to equal employment opportunity, including hiring discrimination and unequal pay. Quotas are prohibited.

On September 9, 2005, the Department of Labor signed a memorandum advising contracting agencies that under the National Interest Exemption of the Order, companies receiving new contracts would not be required to comply with the affirmative action program requirements. Section 204 of Executive Order 11246 grants the Secretary of Labor the authority to exempt a contracting agency from the requirement of having an affirmative action program in the case of special circumstances in the national interest. “Equal opportunity laws should never take a holiday, even in the direst of circumstances” said Robert W. Ethridge, president of the American Association for Affirmative Action.

Companies who are currently federal contractors are not exempt from the Executive Order and new contractors have 120 days to prepare an affirmative action program. “Four months should be ample time to prepare a document that advances the interest of the federal government to prevent discrimination on projects funded by taxpayers,” he said. Small contractors have abbreviated requirements for preparing a program. Moreover, affirmative action programs are not required to be submitted to the OFCCP (Office of Federal Contract Compliance Programs) unless a compliance review is scheduled. Approximately 3% of the federal contractor universe is reviewed annually.

“Without the protections of Executive Order 11246 and other laws enforced by OFCCP, including the Rehabilitation Act and the Vietnam Era Veterans Act, women, minorities, individuals with disabilities and disabled veterans may be the last to benefit from employment opportunities created by federal construction and restoration projects.”

The Bush Administration has been criticized for racial insensitivity in responding to the crisis caused by Hurricane Katrina. Ethridge added, “The Labor Department should not exacerbate this perception by exempting federal nondiscrimination programs that would enable historically disadvantaged Americans who are qualified to compete for jobs the dignity that comes from gainful employment.”

About the Author: Shirley Wilcher is interim executive director American Association for Affirmative Action.

Published in In Motion Magazine October 13, 2005.

Also see:

• Highlights from the University of Michigan Cases
  by V.I. King
  Glendale, California
  
  
• The History of Affirmative Action Policies
  
  
• Interview with Shirley Wilcher
  Civil Rights Since the 2003 Supreme Court Affirmative Action Decisions
  Accokeek, Maryland
  
• "Preventing discrimination and promoting diversity"
  – Affirmative Action 2002 –
  Interview with Ayanna Hawkins
  Americans for a Fair Chance
  Washington, D.C.
  
• The Legacy of Affirmative Action
  Supreme Court decisions reverbrate in the community
  by Howard J. Shorr
  Oregon City, Oregon
  
• 28 Asian Pacific American organizations
  file support for affirmative action at the U. S. Supreme Court
  Interview with Vincent Eng
  National Asian Pacific American Legal Consortium
  Washington, D.C.