Executive Order 11246 on Affirmative Action

Executive Order 11246 (or EO 11246) was issued by President Johnson in 1965; it is the end product of a series of prior executive orders written by presidents Roosevelt, Truman, Eisenhower, and Kennedy. Amendments were subsequently added by Johnson himself and by Nixon and Carter. In its current form, EO 11246 applies to (a) federal agencies, (b) procurement contractors, and (c) construction contractors. Participation for federal agencies is mandatory and is administered by the Equal Employment Opportunity Commission (EEOC). Participation for outside contractors is termed “voluntary,” but contracts for $10,000 or more are subject to rules written by the Office of Federal Contract Compliance Programs (OFCCP) of the (U.S. Department of Labor (DOL), under penalty of forfeiture of the right to contract with the federal government. The following discussion focuses on the contractors.

Unlike nondiscrimination laws such as Title VII, which protect minorities and nonminorities as well as men and [Page 199]women, EO 11246 applies only to minorities (blacks, Hispanics, Native Americans, and Pacific Islanders) and to women. The key requirement is the affirmative action plan (AAP) to correct underutilization, defined as a statistical disparity between percentages of minorities and women in the contractor's workforce as compared to percentages of qualified and available minorities and women in the labor pool. The OFFCP has broader powers to administer EO 11246, as compared, for example, to the EEOC's role regarding Title VII of the Civil Rights Act of 1964 and other similar statutes. For example, in Title VII, the employer must lose in federal court before submitting to remedies; in EO 11246, the OFCCP may impose remedies such as suspension and/or cancelation of the right to contract, and even affected class rulings (payments to individual victims). To challenge such rulings, the contractor must first appeal (and lose) to the U.S. Secretary of Labor and then submit to the remedies before receiving a hearing in federal court. Consequently, there have been very few court challenges to OFCCP rulings; see, for example, United States v. Duquesne Light Co. (1976) and St. Regis Paper v. Marshall (1979).

Under most conditions, the OFCCP rules dictate that contractors conduct the availability analysis and write written AAPs with goals and timetables to correct underutilization (or decrease disparities between workforce versus labor pool percentages). The OFCCP also has “imposed plans” for contracts of $1 million or more, so-called hometown plans, written by various contractors in anticipation of OFCCP requirements (see, for example, the “Boston Plan” in Contractors Association of Eastern Pennsylvania v. Secretary of Labor (1971), and the so-called standard clause, for preapproval on a per contract basis by any contractor. Regardless of how the AAP is formed, the OFCCP has a monitoring system that includes compliance reviews. If the OFCCP finds noncompliance, it may then order the remedies just cited.

There are two critical misconceptions about EO 11246. First, it is not the only form of affirmative action (AA). Second, EO 11246 itself does not require what nondiscrimination laws such as Title VII and the constitutional amendments prohibit.

Regarding the first misconception, EO 11246 is one of four sources of AA. The other three include (a) court-ordered affirmative action as a remedy for committing egregious discriminatory acts such as a pattern or practice of discrimination (see United States v. Paradise, 1987); (b) court-approved consent decrees in lieu of (or to head off) litigation in pattern-or-practice cases (see Local 93 v. Cleveland, 1986); and (c) government set-aside programs for MBEs or minority business enterprises (see City of Richmond v. Croson, 1989) and for DBEs or disadvantaged business enterprises (see Adarand v. Pena, 1995). Challenges to any form of AA are made in so-called reverse discrimination claims under Title VII and/or constitutional amendments. Included among these are challenges to programs conducted under EO 11246 itself (see Regents v. Bakke, 1979, United Steelworkers v. Weber, 1979, and Johnson v. Transportation, 1987). However, critically, there is no mechanism for alleged victims to challenge an employer's failure to abide by EO 11246; this power is reserved exclusively for the OFCCP.

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