Texas Law Review VOL 58:845, 1980 supposition that the group as a whole, rather than damaged individuals regardless of their ethnic group, is the appropriate claimant. X Moral obligations are not weakened in any way by a refined anaiysis of the injuries from which they arise and of the instruments appropriate for the redress of those injuries. The wrongs done to blacks and others have been grievous; they cry for remedy. Affirmative action carefully tailored to give just remedy and to insure that the habits and devices of discrimination are thoroughly eliminated is a moral—and often a legal-duty. The fulfillment of that duty is hindered, even undermined, by those who treat affirmative action loosely, who use its good name to advance ill-designed remedial policies. Excess of zeal will prove not only unjust, but counterproductive; it will confuse and erode the moral convictions upon which healthy affirmative action depends. Justice to all parties requires that we design, imaginatively and firmly, yet precisely and with restraint, programs of affirmative action in both public and private sectors. Affirmative action entails both compensatory and prophylactic programs, to give redress to those injured and to keep like injuries from being done to others. Affirmative action does not entail, and must be carefully distinguished from, preference simply on the basis of ethnic identification. EXHIBIT D 4 Contractor Obligations under Executive Order 11246 to Provide Financial Relief By David A. Copus and Linda E. Rosenzweig* The OFCCP recognizes two major kinds of "affected classes" of women and minorities for whom financial relief may be required: (1) rejected applicants and (2) incumbent employees. Chapter 2 discussed the process for identifying an affected class of rejected applicants. This chapter deals with problems of incumbent employee affected classes and subsequently analyzes the legal authority for OFCCP back pay claims for both types of affected classes. Affected Class The OFCCP defines an "affected class" of incumbent employees as a group of workers who continue to suffer the present effects of past discrimination. According to this definition, no current violation need be shown and no individual victims of specific acts of discrimination need be identified. The OFCCP claims that any current practice that perpetuates prior discrimination is a violation of Executive Order 11246. Normally, the "original" See About the Editors, p. 233. Federal Contract Compliance discrimination being perpetuated involved hiring and assignment policies. The "perpetuation-of-past-discrimination" theory was developed years ago under Tide VII of the Civil Rights Act of 1964. A vast body of Title VII law exists on that theory and its application to a wide variety of factual situations. Ironically, just after the OFCCP began to apply the theory under Executive Order 11246, the Supreme Court declared that the theory was not a valid interpretation of Title VII. On May 31, 1977, in Teamsters v. United States and United Air Lines v. Evans, the Supreme Court categorically struck down the perpetuation-of-past-discrimination theory under Title VII. After Teamsters and United Air Lines, in order to prevail under Title VII, a plaintiff must show that he or she has been specifically victimized by a currently active discriminatory policy. Generally this means that each affected class member must show that he or she applied for a traditionally white or male job and was turned down within the statute of limitations period. It seems clear that the reasons that led the Supreme Court to reject the perpetuation-of-past-discrimination theory under Title VII would lead to the same result under the executive order. Nevertheless, the OFCCP has interpreted Teamsters and United Air Lines as restricted to Title VII, and the agency continues to insist on applying the perpetuation-of-past-discrimination theory. Many contractors have chosen to receive show cause notices rather than conform to the OFCCP's demands. In the two court cases decided to date, the contractors have prevailed.3 Despite these losses, however, the OFCCP persists in its position. The agency generally finds an affected class of incumbent employees where women or minorities are concentrated in lowpaying jobs or in jobs where working conditions are poor or where there is less opportunity for skill development and advancement, so-called "focus job titles" (or "focus job areas"). 1. 431 U.S. 324 (1977). 2. 431 U.S. 553 (1977). 3. United States v. East Tex. Motor Freight Sys. Inc., 564 F.2d 179 (5th Cir. 1977); United States v. Trucking Mgt., Inc., 20 Empl. Prac. Dec. 130171, 20 Fair Empl. Prac. Cas. 343 (D.D.C. 1979). 84-280 0-83-40 Obligations to Provide Financial Relief The OFCCP does not require affected class members to have applied for any other job. It assumes that all affected class members would have applied for better jobs but would have been turned down. According to the OFCCP, the identification of an affected class is basically a six-step process*: 1. idenäfying concentrations of minorities and women; 4. eliminating the lack of seniority and ability as possible 5. identifying policies which perpetuate past discrimination; and 6. determining affected class relief. STEP 1: IDENTIFYING CONCENTRATIONS The OFCCP's affected class analysis treats white-collar clerical, white-collar nonclerical, and blue-collar workers separately. Therefore, to identify concentrations of women or minorities according to the OFCCP procedure, the contractor should first determine the following: 1. percentage of women among all its white-collar clerical workers; 2. percentage of minorities among all its white-collar clerical employees; 4. The Federal Contract Compliance Manual lists the following ten steps for conducting an affected class analysis: (1) determine appropriate units of analysis (ie, job areas); (2) perform five basic types of analyses: JAAR, IRA. salary distribution, frequency distribution, and preliminary cohort: (3) formulate hypotheses of systemic discrimination and identify needed additional data: (4) test hypotheses; (5) eliminate seniority or job-related qualifications as explanations for concentrations; (6) verify conclusions through records sample; (7) formulate conclusions; (8) identify membership in the affected class; (9) provide anecdotal and documentary evidence supporting affected class determination; and (10) identify adverse impact in rejections for hire and/or in terminations. Federal Contract Compliance 3. percentage of women among all its white-collar nonclerical employees; 4. percentage of minorities among all its white-collar nonclerical employees; 5. percentage of women among its blue-collar employees; and 6. percentage of minorities among its blue-collar workers. Then, using the work force analysis, the contractor should compare the percentage of women and minorities among all of its white-collar clerical employees with the percentage of women or minorities in various large white-collar clerical job titles, lines of progression, and departments. The same process should then be followed using data on the contractor's whitecollar nonclerical and blue-collar workers. The OFCCP assumes that the contractor's female and minority white-collar clerical workers should be more or less randomly distributed among all white-collar clerical jobs, lines of progression, and departments. The agency makes the same random distribution assumption about a contractor's minority and female white-collar nonclerical and blue-collar employees. For example, assume the following figures are a hypothetical employer's work force statistics: • Percentage of females in white-collar derical jobs-16 percent. • Percentage of minorities in white-collar clerical jobs3 percent. The next step is to compare the percentage of females and minorities in various white-collar clerical job titles, lines of progression, and departments to the overall white-collar percentages. For the purpose of illustration, assume that a review of the job titles, lines of progression, and departments in the hypothetical employer's white-collar clerical sector reveals the following statistics: |