Title VII, Part 1608 of the Civil Rights Act of 1964

7/28/2019 Title VII, Part 1608 of the Civil Rights Act of 1964

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PART 1608-AFFIRMATIVE ACTION APPROPRIATE UNDER TITLE VII OF THE CIVIL RIGHTSACT OF 1964, AS AMENDED

Sec.

1608.1 Statement of purpose.

1608.2 Written interpretation and opinion.1608.3 Circumstances under which voluntary

affirmative action is appropriate.

1608.4 Establishing affirmative action plans.

1608.5 Affirmative action compliance programsunder Executive order No. 11246, asamended.

1608.6 Affirmative action plans which are part of Commission conciliation or settlement agreements.

1608.7 Affirmative action plans or programs under State or local law.

1608.8 Adherence to court order.1608.9 Reliance on directions of other government

agencies.

1608.10 Standard of review.

1608.11 Limitations on the application of theseguidelines

1608.12 Equal employment opportunity plansadopted pursuant to section 717 of Title VII.

AUTHORITY: Sec. 723 the Civil Rights Act of 1964, as amended. 42 U.S.C. 2000e-12, 78 Stat. 265.SOURCE: 44 FR 4422 Jan. 19. 1979, unlessotherwise noted.

1608.1 Statement of purpose.

(a) Need for Guidelines . Since the passage of ti tle VII in 1964, many employers. labor organizations. and other persons subject to title VIIhave changed their employment practices andsystems to improve employment opportunities for minorities and women, and this must continue.These changes have been undertaken either on theinitiative of the employer. labor organization. or other person subject to title VU. or as a result of conciliation efforts under title VII. action under Executive Order 11246. as amended. or under other Federal. state. or local laws. or litigation. Manydecisions taken pursuant to affirmative action plansor programs have been race. sex. or national originconscious in order to achieve the Congressional

purpose of providing equal employment opportunity.Occasionally, these actions have been challenged asinconsistent with title VII, because they took intoaccount race, sex, or national origin. This the so-called "reverse discrimination" claim. In such asituation, both the affirmative undertaken to improvethe conditions of minorities and women, and the

objection to that action, are based upon the principles of title VII. Any uncertainty as to themeaning and application of title VII in such

situations threatens the accomplishment of the clear Congressional intent to encourage voluntaryaffirmative action. The Commission believes that bythe enactment of title VII Congress did not intend toexpose those who comply with the Act to chargesthat they are violating the very statute they areseeking to implement. Such a result wouldimmobilize or reduce the efforts of many who wouldotherwise take action to Improve the opportunities of minorities and women without litigation. thusfrustrating the Congressional intent to encouragevoluntary action and increasing the prospect of titleVII litigation. The Commission believes that It Lsnow necessary to clarify and harmonize the

principles of title VII In order to achieve theseCongressional objectives and protect thoseemployers. labor organizations, and other personswho comply with the principles of title VII.

Purposes of title VIL Congress enacted title VIIin order to improve the economic and socialconditions of minorities and women by providingequality of opportunity in the work place. Theseconditions were part of a larger pattern of restriction.exclusion. discrimination. segregation. and inferior treatment of minorities and women in many areas of life. 2 The Legislative Histories of title V7I. the EqualPay Act. and the Equal Employment Opportunity

Act of 1972 contain extensive analyses of the higher unemployment rate. the lesser occupational status,and the consequent lower Income levels of minoritiesand women. 3 The purpose of Executive Order No.22246, as amended, is similar to the purpose of titleVII. In response to these economic and socialconditions, Congress, by passage of title VII,established a national policy against discriminationIn

2 Congress has also addressed these conditions in other laws, including the EqualPay Act of 1963, Pub. L. 98-38, 77 Stat. 56 (1963), as amend ed; the other titles of theCivil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964), as amended; the VotingRights Act Of 1965, Pub. L. 89-110, 79 Stat. 437 (1965), as amended; the Fair HousingAct of 1968. Pub. L. 90-284. title VII, 82 Stat. 73, 81 (1963), as amended; theEducational Opportunity Act (title IX), Pub. L. 92-318, 86 Stat.373 (1972), as amended;and the Equal Employment Opportunity Act Of 1972, Pub. L. 92-261, 86 Stat. 103(1972), as amended.

3 Equal Pay Act of 1963: S. Rep. No. 176, 88 th Cong., 1 st Sess., 1-2 (1983). CivilRights Act of 1964: H.R. Rep. No. 914, pt. 2, 88 th Cong.. 1 st Sess. (1971). EqualEmployment Opportunity Act of 1972: H.R. Rep. No. 92-238, 92d Cong., 1 st Sess.(1971); S. Rep. No. 92-415. 92d Cong.. 1 st Sess. (1971). See also. Equal EmploymentOpportunity Commission, Equal Opportunity Report - 1975, Job Patterns for Women in

Private Industr y (1977); Equal Employment Opportunity Commission, Minorities and Women in State and Local Government - 1975 (1977); United States Commission onCivil Rights, Social Indicators of Equality for Minorities and Women (1978).

(b) employment on grounds of race, color, religion,sex, and national origin. In addition, Congressstrongly encouraged employers, labor organizations, and other

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persons subject to title VII (hereinafter referred to Ls"persons." see section 701(a) of the Act) to act on avoluntary basis to modify employment practices andsystems which constituted barriers to equalemployment opportunity, without awaiting litigationor formal government action. Conference,conciliation, and persuasion were the primary

processes adopted by Congress in 1964, andreaffirmed in 1972, to achieve these objectives, withenforcement action through the courts or agencies asa supporting procedure where voluntary action didnot take place and conciliation failed. See section706 of title VII.

(c) Interpretation in furtherance of legislative purpose . The principle of nondiscrimination inemployment because of race, color, religion, sex,or national origin and the principle that each

person subject to Title VII should take voluntaryaction to correct the effects of pastdiscrimination and to prevent present and future

discrimination without awaiting litigation, aremutually consistent and interdependent methodsof addressing social and economic conditionswhich precipitated the enactment of title VII.Voluntary affirmative action to improveopportunities for minorities and women must beencouraged and protected In order to carry outthe Congressional intent embodied In title VII. 4

Affirmative action under these principles meansthose actions appropriate to overcome the effectsof past or present practices, policies, or other

barriers to equal employment opportunity. Suchvoluntary affirmative action cannot be measured

by the standard of whether it would have beenrequired had there been litigation, for thisstandard would undermine the legislative

purpose of first encouraging voluntary actionwithout litigation. Rather, persons subject totitle VII must be allowed flexibility in modifyingemployment systems and practices to comportwith the purposes of title VII. Correspondingly,title VII must be construed to permit suchvoluntary action, and those taking such actionshould be afforded the protection against titleVII liability which the Commission isauthorized to provide under section 713(b)(1).

(d) Guidelines interpret Title VII and authorize

use of section 713(b)(1). These Guidelines describethe circumstances in which persons subject to titleVII may take or agree upon action to improveemployment opportunities of minorities and women,and describe the kinds of actions they may takewhich are consistent with title VII. TheseGuidelines constitute the Commissionsinterpretation of title VII and will be applied in the

processing of claims of discrimination which involvevoluntary affirmative action plans and programs. In

addition, these Guidelines state the circumstancesunder which the Commission will recognize that a

person subject to title VII is entitled to assert thatactions were taken in good faith, in conformitywith, and in reliance upon a written interpretation or opinion of the Commission," including reliance uponthe interpretation and opinion contained in theseGuidelines, and thereby invoke the protection of section 713(b)(l) of title VII.

(e) Review of existing plans recommended . Onlyaffirmative action plans or pro adopted In goodfaith, in conformity with, and in reliance uponthese Guidelines can receive the full protectionof these Guidelines, including the section 713(b)(1) defense. See 1608.10. Therefore, personssubject to title VII who have existing affirmativeaction plans, programs, or agreements areencouraged to review them in light of theseGuidelines, to modify them to the extentnecessary to comply with these Guidelines, and

to readopt or reaffirm them. 1608.2 Written interpretation and opinion.

These Guidelines constitute "a written interpretationand opinion" of the Equal Employment OpportunityCommission as that term is used in section 713(b)(1)of title VII of the Civil Rights Act of 1964, asamended, 42 U.S.C. 2000e-12(b)(1), and 1601.33of the Procedural Regulations of the EqualEmployment Opportunity Commission (29 CFR 1601.30; 42 FR 55, 394 (October 14. 1977)).Section 713(b)(1) provides:

In any action or proceeding based on any alleged

unlawful employment practice, no person shall besubject to any liability or punishment for or onaccount of (1) the commission by such person of anunlawful employment practice if he pleads and

proves that the act or omission complained of was ingood faith, in conformity with, and in reliance onany written interpretation or opinion of theCommission4 Affirmative action often improves opportunities for all members of the workforce, aswhere affirmative action includes the posting of notices of job vacancies. Similarly, theintegration of previously segregated jobs means that all workers will be providedopportunities to enter jobs previously restricted. See, e.g., EEOC v. AT&T, 419 F. Supp.1022 (E.D. Pa. 1976). affd, 556 F. 2d 167 (3rd Cir. 1977). Cert. denied 98 S. Ct. 3145(1978).

. Such a defense, if established, shall be a bar tothe action or proceeding, notwithstanding that after such act or omission. such interpretation or opinion is modified or rescinded or Ls determined by

judicial authority to be invalid or of no legal effect.

The applicability of these Guidelines is subject to thelimitations on use set forth in 1608.11.

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1608.3 Circumstances under which voluntaryaffirmative action is appropriate.

(a) Adverse effect. Title VII prohibits practices, procedures, or policies which have anadverse impact unless they are justified by businessnecessity. In addition, title VII proscribes practices

which "tend to deprive" persons of equalemployment opportunities. Employers. labor organizations, and other persons subject to title VIImay take affirmative action based on an analysiswhich reveals facts constituting actual or potentialadverse impact, if such adverse impact is likely toresult from existing or contemplated practices.

(b) Effects of prior discriminatory practices .Employers, labor organizations, or other personssubject to title VII may also take affirmative actionto correct the effects of prior discriminatory

practices. The effects of prior discriminatory practices can be initially identified by a comparison between the employer's work force, or a part thereof,and an appropriate segment of the labor force.

(c) Limited labor pool . Because of historicrestrictions by employers, labor organizations, andothers, there are circumstances in which theavailable pool, particularly of qualified minoritiesand women, for employment or promotionalopportunities is artificially limited. Employers, labor organizations, and other persons subject to title VIImay, and are encouraged to take affirmative actionin such circumstances, including, but not limited to,the following:

(1) Training plans and programs,

including on-the-job training, which emphasize providing minorities and women with theopportunity, skill. and experience necessary to

perform the functions of skilled trades, crafts, or professions;

(2) Extensive and focused recruitingactivity;

(3) Elimination of the adverse impactcaused by invalidated selection criteria (see sections3 and 6, Uniform Guidelines on Employee SelectionProcedures (1978), 43 FR 38290; 38297; 38299(August 25. 1978));

(4) Modification through collective bargaining where a labor organization representsemployees, or unilaterally where one does not, of

promotion and layoff procedures.

1608.4 Establishing affirmative action plans.

An affirmative action plan or program under thissection shall contain three elements: a reasonableself analysis; a reasonable basis for concludingaction is appropriate; and reasonable action.

(a) Reasonable self analysis . The objective of aself analysis is to determine whether employment

practices do, or tend to, exclude, disadvantage,restrict, or result in adverse impact or disparatetreatment of previously excluded or restricted groupsor leave uncorrected the effects of prior discrimination, and if so, to attempt to determinewhy. There Is no mandatory method of conducting aself analysis. The employer may utilize techniquesused in order to comply with Executive Order 11246,as amended, and its implementing regulations,including 41 CFR part 60-2 (known as RevisedOrder 4), or related orders issued by the Office of Federal Contract Compliance Programs or itsauthorized agencies, or may use an analysis similar to that required under other Federal, state, or locallaws or regulations prohibiting employmentdiscrimination. In conducting a sell analysis, theemployer, labor organization, or other person subjectto title VII should be concerned with the effect on itsemployment practices of circumstances which may

be the result of discrimination by other persons or institutions. See Griggs v. Duke Power Co., 401U.S. 424 (1971).

(b) Reasonable basis. If the self anal ysisshows that one or more employment practices: (1)Have or tend to have an adverse effect onemployment opportunities of members of previouslyexcluded groups, or groups whose employment, or

promotional opportunities have been artificiallylimited; (2) leave uncorrected the effects of prior discrimination; or (3) result in disparate treatment,the person making the self analysis has a reasonable

basis for concluding that action is appropriate. It Isnot necessary that the self analysis establish aviolation of title VII. This reasonable basis existswithout any admission or formal finding that the

person has violated title VII, and without regard towhether there exists arguable defenses to a title VIIaction.

(c) Reasonable action . The action taken pursuant to an affirmative action plan or programmust be reasonable in relation to the problemsdisclosed by the self analysis. Such reasonableaction may include goals and timetables or other appropriate employment tools which recognize therace, sex, or national origin of applicants or

employees. It may include the adoption of practiceswhich will eliminate the actual or potential adverseimpact, disparate treatment, or effect, or pastdiscrimination by providing opportunities for members of groups which have been excluded.regardless of whether the persons benefited werethemselves the victims of prior policies or

procedures which produced the adverse impact or disparate treatment or which perpetuated pastdiscrimination

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(1) Illustrations of appropriateaffirmative action . Affirmative action plans or

programs may include, but are not limited to, thosedescribed in the Equal Employment OpportunityCoordinating Council "Policy Statement onAffirmative Action Programs for State and LocalGovernment Agencies." 41 FR 38814 (September 13, 1976), reaffirmed and extended to all personssubject to Federal equal employment opportunitylaws and orders, in the Uniform Guidelines onEmployee Selection Procedures (1978) 43 FR 33290,38300 (Aug. 25, 1978). That statement reads, inrelevant part:

(i) When an employer hasreason to believe that its selection procedures have exclusionary effect , it should initiateaffirmative action steps to remedy the situation.Such steps, which in design and execution may berace, color, sex, or ethnic conscious, include, butare not limited to, the following:

(1) Theestablishment of a long term goal and short range,interim goals and timetables for the specific jobclassifications, all of which should take into accountthe availability of basically qualified persons in therelevant job market;

(2) A recruitment program designed to attract qualified members of thegroup in question;

(3) A systematiceffort to organize work and re-design jobs in waysthat provide opportunities for persons lacking

journeymen level knowledge or skills to enter and,with appropriate training, to progress in a career field;

(4) Revampingselection instruments or procedures which have notyet been validated in order to reduce or eliminateexclusionary effects on particular groups in

particular job classifications;

(5) The initiation of measures designed to assure that members of theaffected group who are qualified to perform the jobare included within the pool of persons from whichthe selecting official makes the selection;

(6) A systematic effortto provide career advancement training, bothclassroom and on-the-job, to employees locked intodead end jobs; and

(7) The establishmentof a system for regularly monitoring the effectivenessof the particular affirmative action program, and

procedures for making timely adjustments in this program where effectiveness is not demonstrated.

(2) Standards of reasonable action . Inconsidering the reasonableness of a particular affirmative action plan or program, the Commissionwill generally apply the following standards:

(i) The plan should betailored to solve the problems which were identified

in the self analysis, see 1608.4(a), supra, and toensure that employment systems operate fairly in thefuture, while avoiding unnecessary restrictions onopportunities for the workforce as a whole. Therace, sex, and national origin conscious provisions of the plan or program should be maintained only solong as is necessary to achieve these objectives.

(ii) Goals and timetablesshould be reasonably related to such considerationsas the effects of past discrimination, the need for

prompt elimination of adverse impact or disparatetreatment, the availability of basically qualified or qualifiable applicants, and the number of employment opportunities expected to be available.

(c) Written or unwritten plans or programs -(1) Written plans required for 713(b)(1) Protection .The protection of section 713(b) of title VII will beaccorded by the Commission to a person subject totitle VII only if the self analysis and the affirmativeaction plan are dated and in writing, and the planotherwise meets the requirements of section 713(b)(1). The Commission will not require that there beany written statement concluding that a title VIIviolation exists.

(1) Reasonable cause determinations .Where an affirmative action plan or program is

alleged to violate title VII, or is asserted as a defenseto a charge of discrimination, the Commission willinvestigate the charge in accordance with its usual

procedures and pursuant to the standards set forth inthese Guidelines, whether or not the analysis and

plan are in writing. However. the absence of awritten self analysis and a written affirmative action

plan or program may make it more difficult to provide credible evidence that the analysis wasconducted, and that action was taken pursuant to a

plan or program based on the analysis. Therefore,the Commission recommends that such analyses and

plans be in writing.

1608.5 Affirmative action compliance programsunder Executive Order No. 11246, as amended.

Under title VII, affirmative action compliance programs adopted pursuant to Executive Order 11246, as amended, and its implementingregulations, including 41 CFR part 60-2 (RevisedOrder 4), will be considered by the Commission inlight of the similar purposes of title VII and theExecutive Order, and the Commissionsresponsibility under Executive Order 12067 to avoid

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or is alleged to be the justification for an actionwhich is challenged under title VII, theCommission will Investigate to determine:

(b) Whether the affirmative action plan or program was executed by an employer,labor organization, or person subject to the

statute or ordinance;(c) Whether the agreement was

approved by an appropriate official of the stateor local government,

(d) and, Whether adherence to the plan or program was the basis of thecomplaint or justification

(i) Previously Approved Plans or Programs . If the Commission finds thefacts described in paragraph (a) of this section, theCommission will, in accordance with the"substantial weight" provisions of section 706 of the

Act, find no reasonable cause where appropriate.(ii) Plans or Programs not

previously approved . If the plan or program has not been approved by an appropriate official of the stateor local government, the Commission will follow the

procedure of 1608.10 of these Guidelines. If theCommission finds that the plan or program doesconform to these Guidelines, the Commission willmake a determination of no reasonable cause as setforth in 1608.10(a).

(b) Reliance on these guidelines . In addition,if the affirmative action plan or program has beenadopted in good faith reliance on these Guidelines,

the provisions of section 713(b)(l) and 1608.10(b),of this part, may be asserted by the respondent.

1608.8 Adherence to court order.

Parties are entitled to rely on orders of courts of competent jurisdiction. If adherence to an Order of aUnited States District Court or other court of competent jurisdiction, whether entered by consentor after contested litigation, in a case brought toenforce a Federal, state, or local equal employmentopportunity law or regulation, is the basis of acomplaint filed under title VII or is alleged to be the

justification for an action which is challenged under title VII, the Commission will Investigate todetermine:(a) Whether such an Order exists and

(b) Whether adherence to the affirmative action plan which is part of the Order was the basis of the complaint or justification.

If the Commission so finds, it will issue adetermination of no reasonable cause. TheCommission interprets title VII to mean that actions

taken pursuant to the direction of a Court Order cannot give rise to liability under title VII.

1608.9 Reliance on directions of othergovernment agencies.

When a charge challenges an affirmative action planor program, or when such a plan or program israised as justification for an employment decision,and when the plan or program was developed

pursuant to the requirements of a Federal or statelaw or regulation which in part seeks to ensure equalemployment opportunity, the Commission will

process the charge In accordance with 1608.10(a).Other agencies with equal employment opportunityresponsibilities may apply the principles of theseGuidelines in the exercise of their authority.

1608.10 Standard of review.

(a) Affirmative action plans or programs not specifically relying on these guidelines . If, during

the investigation of a charge of discrimination filedwith the Commission, a respondent asserts that theaction complained of was taken pursuant to and inaccordance with a plan or program of the typedescribed in these Guidelines, the Commission willdetermine whether the assertion is true, and if so,whether such a plan or program conforms to therequirements of these guidelines. If the Commissionso finds, it will issue a determination of noreasonable cause and, where appropriate, will statethat the determination constitutes a writteninterpretation or opinion of the Commission under section 713(b)(1). This interpretation may be reliedupon by the respondent and asserted as a defense in

the event that new charges involving similar factsand circumstances are thereafter filed against therespondent, which are based on actions taken

pursuant to the affirmative action plan or program.If the Commission does not so find, it will proceedwith the investigation in the usual manner.

(b) Reliance on these guidelines . If arespondent asserts that the action taken was pursuantto and in accordance with a plan or program whichwas adopted or implemented in good faith, inconformity with, and in reliance upon theseGuidelines, and the self analysis and plan are inwriting, the Commission will determine whether such assertion is true. If the Commission so finds, itwill so state in the determination of no reasonablecause and will advise the respondent that:

(1) The Commission has found thatthe respondent is entitled to the protection of section713(b)(1) of title VII; and

(2) That the determination is itself anadditional written interpretation or opinion of theCommission pursuant to section 713(b)(1).

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1608.11 Limitations on the application of @guidelines.

(a) No determination of adequacy of plan or program . These Guidelines are applicable only withrespect to the circumstances described in 1608.1(d), of this part. They do not apply to, and the

section 713(b)(1) defense is not available for the purpose of, determining the adequacy of anaffirmative action plan or program to eliminatediscrimination. Whether an employer who takessuch affirmative action has done enough to remedysuch discrimination will remain a question of fact ineach case.

(b) Guidelines inapplicable in absence of affirmative action . Where an affirmative action planor program does not exist, or where the plan or

program is not the basis of the action complained of,these Guidelines are inapplicable.

(c) Currency of plan or program . Under section 713(b)(1), persons may rely on the plan or

program only during the time when it is current.Currency is related to such factors as progress incorrecting the conditions by the self analysis. Thecurrency of the plan or program is a question of factto be determined on a case by case basis. Programsdeveloped under Executive Order 11246, asamended, will be deemed current in accordance withDepartment of Labor regulations at 41 CFR chapter 60, or successor orders or regulations.

1608.12 Equal employment opportunity plansadopted pursuant to section 717 of Title VII.

If adherence to an Equal Employment OpportunityPlan, adopted pursuant to section 717 of title VII,and approved by an appropriate official of the U.S.Civil Service Commission, is the basis of acomplaint filed under title VII, or is alleged to be the

justification for an action under title VII, theseGuidelines will apply in a manner similar to that setforth in 1608.5. The Commission will issueregulations setting forth the procedure for processingsuch complaints.

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Title VII, Part 1608 of the Civil Rights Act of 1964

Documents

Transcript of Title VII, Part 1608 of the Civil Rights Act of 1964