This document contained the first federal regulations on sexual harassment and summarized the comments on the regulations made by female activists working in blue-collar trades such as construction.
Title 41 -- Public Contract and Property Management
CHAPTER 60 -- OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, EQUAL EMPLOYMENT OPPORTUNITY, DEPARTMENT OF LABOR
PART 60-4 -- CONSTRUCTION CONTRACTORS -- AFFIRMATIVE ACTION REQUIREMENTS
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
SUMMARY: The regulations published today establish specific affirmative action standards for women in construction and consolidate and standardize requirements for construction contractors and subcontractors subject to Executive Order 11246, as amended to promote equal employment opportunity in the construction industry. In addition, this document deletes certain regulations which are superseded.
EFFECTIVE DATE: These regulations shall take effect May 8, 1979
FOR FURTHER INFORMATION CONTACT: William Raymond, Associate Director, OFCCP. Phone, 202-523-9447.
SUPPLEMENTARY INFORMATION: On August 16, 1977, the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, published in the FEDERAL REGISTER (42 FR 41378) a proposal to establish a new Part 41 CFR 60-4. The proposal set out specific regulations for the construction industry pursuant to Executive Order 11246, as amended. (30 FR 12319, 32 FR 14303) Comments from interested parties were received until October 15, 1977.
Over 510 separate written comments, presenting a broad spectrum of views, were submitted by individuals and groups. Over 235 comment letters were submitted by individuals on behalf of themselves; 61 by contractors; 56 by contractor associations; 48 by women's groups; 10 by law firms and consultant organizations; 42 by Federal, state, and local government agencies; and 32 by other organizations. Additional comments were received which were postmarked after October 15, 1977. These latter comments were analyzed and considered but they were not included in the count set forth above. Each submission has been thoroughly reviewed and each specific criticism and suggestion has been given careful consideration.
The majority of the comments were general in nature and contained no specific suggestion; rather they either expressed support for or opposition to the proposed rules. Two hundred forty-three of the comment letters, primarily from individuals, expressed general support and urged the Department of Labor to adopt the proposal as final regulations. Twenty-seven of the comments, primarily from contractors and unions, urged the Department of Labor either to delay the issuance of final regulations or to withdraw the proposal in its entirety. A small number of the comment letters requested that the Department of Labor delay final rulemaking and hold public hearings on the proposal.
SUMMARY OF COMMENTS
Other comments, primarily from contractors, expressed the view that the Department of Labor should withhold its decision on final regulations until the U.S. Supreme Court has rendered its decision in The Regents of the University of California v. Allen Bakke. These comments maintained that the Department's final regulation for the construction compliance program, particularly goal achievement level, would have to be consistent with the Supreme Court's decision in Bakke.
The obligation of federally involved construction contractors to take affirmative action to ensure equal employment opportunity, particularly for women, was a major issue treated by almost all the comments. In general, those comments received from contractors, contractor associations and unions, while recognizing that the industry's legal obligation to take affirmative action, expressed concern about the nature of the required actions. These comments characterize the goal levels as quotas and state that the goals would require contractors to hire unqualified persons, that qualified women craft workers are not available, that contractors would be required to displace other workers with women because of high unemployment in the industry, and that the required actions, particularly the recordkeeping requirements, placed an additional cost burden on contractors which would be difficult for small contractors to absorb.
Comments received from most women's organizations, community groups, and most of the Federal, state and local government agencies praised the proposal. These groups stated that without the specified affirmative action steps, particularly the goals and timetables, very little would be done to increase the participation of women in the construction industry. However, many of the comments from these groups stated that the specified goal levels were too low and achievement of them would constitute no real improvement of the position of women craft workers in the industry.
A number of comments from the construction industry (contractors and contractor associations) expressed the opinion that the obligation to take affirmative action to advance employment opportunity for minorities and females should be shared equally by contractors and their unions. Additionally, these comments stated that the effect of paragraphs 4 and 7d of the specifications in §60-4.3(a) would be to require contractors to violate the exclusive referral provision in collective bargaining agreements with the unions, which, they say. would subject them to litigation under the National Labor Relations Act.
Construction industry comments also expressed concern about the extension of coverage of the affirmative action requirements to all federally involved construction contracts in excess of $10,000. These comments pointed out that in the regulations for supply and service contractors, written affirmative action program requirements attach only to contracts of $50,000 or more. Women's organizations, community groups, and some Government agencies felt that this coverage was needed to provide equal employment opportunities for minorities and women.
A number of the construction industry comments raised two concerns about paragraph 12 of the Standard Federal Equal Employment Opportunity Construction Contract Specifications (hereinafter, Specifications) which is set forth in § 60-4.3(a). They were concerned about obtaining an up-to-date list of debarred contractors and whether the prohibition extended to the contractor's non-Federal work.
Construction industry comments also expressed an inability to comply with the antiharassment provision in paragraph 7a of the Specifications which would require the contractor to ensure and maintain a working environment free of harassment, intimidtion and coercion.
Women's organizations and a few Government agencies were concerned about the problems of double counting minority women. Women's organizations want minority women to be counted exclusively toward the achievement of the female goal level.
Construction industry comments expressed the view that paragraph 7o of the Specifications, which requires the contractor to document and maintain a record of all solicitations of offers from minority and female construction contractors and suppliers, constitutes a requirement to subcontract with minority and female companies and questioned the authority of the Department of Labor to impose such a requirement under the Executive Order.
The different requirements imposed on construction contractors by Federal, state and local laws was a concern of the construction industry. They suggested that the rules be revised to provide that the Federal EEO
action obligations. These affirmative action obligations, in large measure, are the good faith steps contained in the present Bid Conditions. Some of the good faith steps were modified before being adopted as required affirmative action obligations and other affirmative action obligations are entirely new.
Paragraph 7 and its subparagraphs establish the affirmative action obligations. Comments from contractor groups objected to the antiharassment provision in paragraph 7a. During the time it has considered extending specific affirmative action coverage to women in the construction industry, however, the Department of Labor has learned of many egregious examples of harassment of female workers. The comments do not challenge the existence of such conduct. The need to discourage harassment, intimidation and coercion is particularly important in an industry such as construction where the safety of workers may depend on a fellow worker. The contractor is in the best position to discourage such conduct and to ensure fair treatment of all employees. Objections also were raised to the provision which states that where possible the contractor will assign two or more women to each construction project. The Department is fully aware that the very nature of construction work, such as the use of small workforces in certain trades, would not always accommodate the assignment of two or more women by a single contractor. However, where large workforces are being employed it is reasonable to assume that two or more women would be assigned to a construction project. Such a practice also should help to eliminate harassment and intimidation. Moreover, a contractor should not feel that is has met its affirmative action obligation simply by placing a token woman on the project and at the same time should not refuse to assign a woman to a project because there are not two openings.
Contractor groups also expressed objections to what they perceived as recordkeeping requirements. In fact no specific recordkeeping formats have been established. It will be necessary for contractors to maintain documentation of some of the specific actions they have taken such as a list of their minority and female recruitment sources (see Specification subparagraph 7b) and the names, addresses and telephone numbers of minority and female off-the-street applicants (7c). Such documentation is essential in order for the contract compliance program to be able to assess whether the contractor is taking the required action. Moreover, it is fair to presume that contractors already have in place some recordkeeping system for these types of activities and where adequate records do exist the contractor is not obligated to establish new procedures.
Contractors also contended that paragraph 4 and subparagraph 7d of the Specifications would require them to violate the exclusive referral provisions of their collective bargaining agreements. These arguments are unpersuasive and have been rejected in various court decisions upholding the principle that a contractor's noncompliance with its affirmative action obligations cannot be justified by the contractor's reliance on a collective bargaining agreement, and that the contractor must go outside of the terms of the agreement if that is the only way to maintain compliance with the Executive Order and the implementing rules, regulations and orders. See Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3rd Cir. 1971), cert. denied, 404 U.S. 854 (1971); Southern Illinois Builders Assn. v. Ogilivie, 471 F.2d 680 (7th Cir. 1974); Joyce v. McCrane, 320 F.Supp. 1284 (D.NJ. 1970); Associated General Contractors of Massachusetts v. Altschuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957 (1974); Equal Employment Opportunity Commission v. American Telephone & Telegraph Co. 556 F.2d 167 (3rd Cir. 1977); Savannah Printing Specialties & Paper Products Local Union 604 v. Union Camp Corp., 350 F.Supp, 632 (S.D. Ga. 1972). ***It should be emphasized that the Department's position has not precluded and will not preclude enforcement actions against labor organizations for impeding the nondiscrimination /affirmative action obligations of federally-involved construction contractors and subcontractors under E.O. 11246. Such actions are specifically authorized under sections 209(a)(2) and (3) of the Order. See, e.g., U.S. v. Carpenters Local 169, 457 F. 2d 210 (7th Cir. 1972), cert denied, 409 U.S. 851 (1972); U.S. v. Papermakers Local 189, 282 F. Supp. 30 (E.D. La. 1968), aff'd 416 F. 2d 980 (5th Cir. 1969). cert. denied, 397 U.S. 912 (1970); U.S. v. Operating Engineers Local 701, -- F. Supp. -- , 14 FEP Cases 1400 (D. Ore. 1977). Therefore, in order to facilitate enforcement efforts against labor organizations for interfering with the nondiscrimination/affirmative action obligations of federally-involved construction contractors, paragraph 7d of the specifications requires covered contractors and subcontractors to provide immediate written notification to the responsible compliance agency and to OFCCP when the union or unions with which the contractor has a collective bargaining agreement has not referred to the contractor a minority person or woman.sent by the contractor, or when the contractor has other information that the union referral process has impeded the contractor's efforts to meet its obligations.
Paragraph 9 of the Specification has been rewritten to address the concerns of the Deputy Comptroller General of the United States. The Deputy Comptroller General commented follows:
This provision [paragraph 9] would require, in effect, the renegotiation of goal after the contract has been awarded rather than specifying separate goals and timetables which must be met by contractors in categories determined to be employing "particular groups" in a "substantially disparate manner."
Paragraph 9 has been rewritten to eliminate the requirement to establish separate goals. However, the section also makes it clear that the goals include all groups and that the contractor may not be in compliance if it has achieved its goal levels generally but employs certain groups in a substantially disparate manner. The minority goal, for example, includes blacks, American Indians, Hispanics, Asian and Pacific Islanders, and a contractor may not be in compliance if it meets its goal by employing one group and totally ignores another.
Paragraph 12 prohibits the contractor from entering into contracts with debarred contractors. Contractors were concerned about receiving notice of debarred contractors and whether the contracting prohibition applied to nonfederal contracts as well. The OFCCP maintains a list of debarred contractors which may be secured from that agency. In addition, all debarments effected under Executive Order 11246 are published in the FEDERAL REGISTER. Finally, paragraph 12 is not intended to cover contracts awarded by a Federal contractor for work to be performed on a project which is neither Federal nor federally assisted.
Some comments suggested that Federal EEO requirements should preempt state and local EEO requirements. Other comments suggested that the more stringent standards, whether Federal or state or local, should apply. The Federal Government, of course, may not pre-empt state and local government regulation of the construction industry (Associated General Contractors of Mass. v. Altshuler, 490 F. 2d 9 (1st cir. 1973)). The OFCCP has attempted to apply uniform standards to contractors and to provide the greatest protection to the greatest number of people under the Executive Order.
Section 60-4.4 and 60-4.5. The major change made in these two sections is the proviso in § 60-4.5 which requires that each contractor participating in the plan make a good faith effort to achieve its goals and that the overall good performance by other contractors does not excuse any contractor. This change was made in response to those comments to the effect that
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