neither case, however, did Justice file the suits requested by EEOC. In March 1970 the Department did sign a significant compliance agreement effective April 1 with a large number of West Coast motion picture producers, television networks, and craft unions which opened the way for increased minority hiring. c. OFCC and the Department of Justice

The Department of Justice has had more extensive dealings with OFCC (and its 15 compliance agencies) than with EEOC. Under Executive Order 11246, which authorizes OFCC to refer appropriate cases to Justice for litigation, eight matters have been referred and Justice has filed suit in each case.936 No formal referral procedures exist, but Justice officials do not believe they are necessary because of the small number of cases referred and the excellent coordination that exists between personnel of the two agencies.937

A problem which the OFCC and Justice have yet to resolve completely is what action OFCC should take when Justice is involved in a presuit investigation of a contractor who is not in compliance with the Executive order and who is being considered for a new Federal contract. OFCC regulations provide that all contractors with contracts in excess of $1 million must have an approved affirmative action plan on file. If a contractor does not have such a plan, the Federal contract is to be withheld. On several occasions, the Department of Justice has requested OFCC to disregard this procedure to allow the contracts to be awarded

or practice" suits against the 10 worst offending companies, but refused to do so. Id.

Hobson and Mintz interviews, supra notes 902 and 926. The cases were against: the St. Louis Building and Construction Trades Council, et al. (the St. Louis Arch case), Feb. 4, 1966; the Crown Zellerbach Corp., Jan. 30, 1968; East St. Louis Operating Engineers (Local 520), Jan. 17, 1969; East St. Louis Electrical Workers (Local 309), Jan. 17, 1969; East St. Louis Cement Masons (Local 90), Jan. 17, 1969; the Seattle Ironworkers (Local 86) et al., Oct. 31, 1969; National Lead Co. and (Local 1744) the Chemical Workers, Jan. 14, 1970; and the International Association of Bridge, Structural, and Ornamental Iron Workers (Local Union No. 392) (East St. Louis, Ill.), on June 2, 1970. Each of these cases represented a crisis or emergency situation for OFCC and Justice was reported to have reacted with dispatch. Id.

and to discontinue its conciliation efforts-so that the Department may develop the best possible case for its court suits.938 Thus far, the procedure has been to drop compliance activities and allow Justice to continue its presuit investigations.

A significant example of commendable coordination between OFCC and the Justice Department concerned Justice support of the legality of the "Philadelphia Plan" 939 in 1969. The Attorney General and the Secretary of Labor jointly released legal opinions and statements supporting the procedure.940 Further, there was considerable cooperation between attorneys at Justice and the Department of Labor leading up to the Attorney General's opinion.941

Other examples of coordination between the Department of Justice and OFCC include a Justice evaluation of OFCC regulations prior to their issuance in 1968; Justice assistance in the development of significant OFCCcontractor agreements; Justice reviews of briefs and other legal papers prepared by OFCC in preparation for hearings; and Justice analysis of the compliance enforcement potential of contract compliance agencies."""

942

2. MULTI-AGENCY COORDINATION

Coordinated action by all three agencies,

938 Interview with Ward McCreedy, Assistant Director for Contract Compliance, OFCC, Dec. 2, 1969. Mintz interview, supra note 926. Memorandum from David Rose, Special Assistant to the Attorney General for Title VI to Jerris Leonard, Assistant Attorney General, Civil Rights Division, Pending Matters of Significance in the Title VI Office, 6, 7, Jan. 28, 1969.

***For a discussion of the Philadelphia Plan, see sec. III of this ch., supra.

940

Departments of Justice and Labor News Releases, Sept. 23, 1970.

941 Pierson and Mintz interviews, supra notes 915 and 926. In fact, the Philadelphia field representative of the Community Relations Service of the Department of Justice and the U.S. Attorney in Philadelphia were active in the committee of the Philadelphia Federal Executive Board which developed the plan. Interview with Kenneth Kugel, Director, Operational Coordination and Management Systems Staff, Bureau of the Budget, Apr. 17, 1970. Representatives of the Department's Civil Rights Division had provided unofficial opinions supporting the legality of the Plan prior to the request for a formal opinion of the Attorney General. Rose and Mintz interviews, supra notes 929 and 926.

942 Rose and Mintz interviews, supra notes 929 and 926.

Justice, EEOC, and OFCC, has been rare. It has been attempted in two instances. The first was a coordinated effort concerning a specific project. The second was a broader effort represented by the Interagency-Staff Coordinating Committee.

a. Textile Case

The one example of coordinated action by the three agencies on a specific project involved the effort to end discrimination in certain Southern textile mills.943 That example of coordination was limited in purpose and necessarily limited in result. It was done on an ad hoc basis and did not result in any agreement that similar efforts would be undertaken in the future. Although no substitute for systematic coordination, this kind of action can be of value when directed against employers in particular industries or specific geographic

areas.

b. Interagency Staff Coordinating Committee

The Interagency Staff Coordinating Committee was formed in July 1969 944 in response to the need for better coordination among the three agencies. Five persons representing the three policymaking agencies were designated to serve as representatives.945 The following

943 For a more complete discussion of the textile case, see sec. III of this ch., supra.

* Memorandum for James D. Hodgson, then Under Secretary of Labor; Arthur A. Fletcher, Assistant Secretary of Labor; William H. Brown III, Chairman, EEOC; Jerris Leonard, Assistant Attorney General, Civil Rights Division, Justice Department; and Lawrence Silberman, Solicitor of Labor; from Benjamin Mintz, Deputy Chief, Office of the Special Assistant to the Attorney General; re: Coordination of the Federal Government Equal Employment Opportunity Program -Formation of the Interagency Civil Rights Staff Committee, July 8, 1969.

For almost 2 years prior to July, there had been informal biweekly luncheon meetings of staff members of the three agencies, at which coordination issues were discussed. Alexander and Mintz interviews, supra notes 935 and 926.

915 Memorandum on "Interagency EEO Coordinating Committee" Robert R. Hobson, Senior Compliance Officer, OFCC, to Assistant Secretary of Labor, Arthur Fletcher, July 23, 1969.

The five individuals were: Benjamin Mintz, Deputy Chief, Office of the Special Assistant to the Attorney General, Department of Justice; William Oldaker, Administrative Assistant to the Chairman, EEOC; James E. Jones, Jr., Associate Solicitor, Department of Labor; Alfred G. Albert, Deputy Associate Solicitor, Labor

broad goals were established by the committee: 1. Establishment of priorities in enforcement activity;

2. Development of exchange of information; 3. Agreement upon uniform standards for compliance;

4. More effective marshalling of enforcement procedures; and

5. Ongoing operational coordination.946 Beginning with the July meeting,947 representatives of the agencies agreed to meet on a weekly basis to devise means for accomplishing these goals. Discussions at most of the early meetings were concerned with analyzing several agency contract compliance programs and determining which were priority issues.948 In November 1969 a Chairman and Vice Chairman were chosen and more formal procedures were inaugurated.949

Department; Robert Hobson, Senior Compliance Officer, OFCC.

946

July 8 memorandum, supra note 944. This memorandum referred nine items to the committee for study. They were: (1) referral by EEOC to OFCC for enforcement action under Executive Order 11246 of cases involving Government contractors and subcontractors where EEOC conciliation efforts fail and the case is not referred to Justice for a pattern or practice suit; (2) deferral of cases to OFCC for enforcement when appropriate by Justice; (3) development of procedures under which EEOC would refer cases to Justice at the earliest possible date after completion of investigation; (4) issuance of uniform testing guidelines by OFCC and EEOC; (5) uniform standards for corrective action programs for use of EEOC, OFCC, and Justice; (6) procedures to avoid duplicative and overlapping investigations; (7) jointly sponsored programs for the training of investigators; (8) joint investigations and negotiations by EEOC, OFCC, Justice and other agencies such as FPC and FCC if appropriate; (9) jointly sponsored public hearings.

947

A member of the White House staff, Bruce Rabb, Staff Assistant to the President, attended the first few meetings of the committee, but usually did not attend subsequent meetings. Interagency EEO Coordinating Committee Memorandum, supra note 945.

949 Interview with Alfred Blumrosen, Consultant to the Assistant Secretary of Labor, Dec. 2, 1969. The priority issues were determined to be the development of a joint testing order for OFCC and EEOC, and the construction of mechanisms to reduce investigative duplication and make maximum use of OFCC's sanction authority.

949 Id. The Chairman was Professor Alfred Blumrosen, Consultant to Assistant Secretary of Labor Fletcher. The Vice Chairman was Benjamin Mintz of the Department of Justice. The new Chairman insured that

Between November 1969 and May 1970 the Interagency Staff Coordinating Committee continued to hold regular weekly meetings to discuss various problems of coordination, but no substantial progress was made in resolving them.950

On May 20, 1970, however, as a result of the committee's efforts, the OFCC and EEOC announced the signing of a potentially significant memorandum of understanding. The memorandum deals primarily with the problem of investigative coordination and overlap and is aimed at facilitating the sharing of data; reducing investigative overlap by assigning OFCC complaints to EEOC for investigation; and employing OFCC's enforcement powers against contractors who refuse to conciliate with EEOC.951 The memorandum also indicates that EEOC and OFCC are to agree on the number of cases which EEOC can refer to OFCC during the 90-day initial phase of the agreement.952 The memorandum took effect immediately and was to operate for a 90-day trial period. At the end of that period it was

agendas were fixed for each meeting, minutes kept and discussions remained on point. Prior to the selection of a Chairman, the committee operated on a rather haphazard basis. Id.

950

E.g., see Minutes and Notes for Meetings of Interagency Staff Coordinating Committee, Nov. 25, 1969; Dec. 2, 1969; and Jan. 13, 1970.

1 Memorandum of Understanding Between U.S. Department of Labor, Office of Federal Contract Compliance, and Equal Employment Opportunity Commission, concerning the Processing of Complaints of Employment Discrimination as Between the Two Agencies, May 20, 1970.

The memorandum contemplates OFCC issuing 30-day "show-cause" notices to Federal contractors who do not reach a conciliation agreement with EEOC. The "showcause" notice gives the contractor 30 days to demonstrate why enforcement proceedings should not be begun against him by OFCC.

It should be noted that the memorandum indicates that OFCC and not the compliance agencies would issue the "show-cause" orders and impose the appropriate sanctions. Although this is merely a continuation of present policy, it is contrary to the intent of the Executive order, which states that the compliance agencies will be primarily responsible for enforcement of its provisions. For a further discussion of this point see sec. II, supra.

962 Id. The exact number of referrals allowable was not a part of the memorandum, but is to be arrived at by the agencies during the first days of the agreement.

to be reevaluated and appropriate changes made.953

Issuance of the memorandum of understanding represents the Interagency Committee's only significant achievement. 954 Several reasons contribute to the committee's lack of success. Among these is the fact that individuals representing the three agencies are not at the policymaking level; and the committee has not established deadlines for decisions on each of the issues raised. Thus, coordination is still ragged and is not a priority issue for the member agencies.955

In addition, the agencies have traditionally seen themselves as having separate and independent roles, a posture which does not easily lend itself to close coordination. The Justice Department views itself as a litigator, which should not become too closely involved in the activities of agencies it may have to defend in court. 956 EEOC still operates a complaint-oriented program and OFCC, in the midst of internal reorganization, must take

953

Subsequent to the May 20, 1970 agreement, two additional coordinative actions have been undertaken. First, a set of procedures have been developed by OFCC and EEOC to implement the May 20 agreement. These procedures deal with: information exchange, agency actions prior to an EEOC or OFCC investigation or review, complaints filed with OFCC, and steps to be taken when there is a finding by EEOC that it has reasonable cause to believe that a contractor discriminates in his employment practices. Second, a new memorandum of understanding is being developed which fixes criteria; the roles of OFCC, EEOC, and the Justice Department; and coordination procedures regarding major employment discrimination cases. Representatives from each agency (including the responsible compliance agency) will be appointed to develop a common approach and to oversee the case to its conclusion. Memorandum from Robert R. Hobson, Director, OPO, OFCC to George Travers, Economist, OFCC, Aug. 25, 1970; "Procedures for Implementation of OFCC-EEOC Memorandum of Understanding of May 20, 1970" (Undated); (Draft) Memorandum of Understanding between EEOC and OFCC, "concerning the Processing of Employment discrimination matters of Major Public Concern" (not yet in effect as of Aug. 25, 1970).

into account the wishes and special needs of agencies in planning its enforcement program.

Thus, although some progress has been made in improving the coordinative mechanisms, the goal of a comprehensive Federal equal employment opportunity program is far from being achieved. Representatives of all three agencies have expressed doubt that this can be done under the existing governmental structure.957 Indeed, so long as responsibility is divided among three different agencies having different orientations and different priorities, their doubts seem warranted.

To the extent that problems of a coordinative nature persist, the Federal Government's ability to make its pledge of equal job opportunity a reality for all Americans is thereby significantly diminished. (There is need for a rethinking and reorganization of the Federal effort to secure equal employment opportunity.) 958

VII. SUMMARY

Equal employment opportunity is an unquestioned right of every American, protected by actions of the three branches of the Federal Government. Executive orders require nondiscrimination in employment by the Federal Government itself, and by those who contract with the Federal Government. Judicial decisions have interpreted post-Civil War civil rights laws and the National Labor Relations Act to require nondiscrimination in private employment. And Congress, through Title VII of the Civil Rights Act of 1964, has established as organic law equal employment opportunity in private employment.

Although the legal right to equal employment opportunity is broadly protected, one of the major means of securing it in fact, through enforcement, is frequently lacking. Indeed, the mechanisms established by Federal agencies charged with responsibility for administering

957 Mintz and Bierman interview, supra notes 926 and 955; interview with James Robinson, Acting Director, Plans and Program Staff, EEOC, Oct. 31, 1969.

958 For a discussion of the various ways in which the Federal effort to end employment discrimination might be organized, see R. Nathan, Jobs and Civil Rights (prepared for the U.S. Commission on Civil Rights by the Brookings Institution) 243-63 (1969).

and enforcing fair employment laws have been patently neglected.

Federal Employment

In many respects, the Federal Government, as the largest employer in the Nation, serves as the standard bearer in the employment field for the entire country. History shows that in the past, the Government has been seriously remiss in safeguarding each citizen's right to equal employment opportunity. In recent years, however, a variety of actions has been initiated to improve employment and promotional opportunities for minority groups and eliminate discrimination within the Federal service.

Less than 50 years ago, Federal Government policy sanctioned racial segregation and exclusion in its own employment. Less than a generation ago, that policy changed and some of the more overt manifestations of racial and ethnic prejudice were abolished, although many discriminatory practices persisted. But only within the past decade have solid efforts been made to open opportunities in the Federal service to all persons on an equal basis. Executive orders promulgated in 1961 and 1965 called upon the Civil Service Commission to "supervise and provide leadership" in the conduct of equal employment opportunity programs of all executive departments and agencies. Until recently, however, CSC's role has been characterized by passivity and progress lagged. A November 1967 census of minority group employment in the Federal service, for example, revealed striking inequities. All agencies had disproportionately low minority group representation at middle and upper grade levels. And in some regions of the country, nonwhite employment at all grade levels ran substantially below the proportion of nonwhites within the region.

Taking cognizance of the persisting problems, President Nixon issued Executive Order 11478 in August 1969, which extended and enlarged the policy set forth in previous Executive orders. CSC responded by centralizing, elevating, and otherwise reorganizing its equal employment opportunity program. Internal coordination was facilitated and CSC's effectiveness vis-à-vis other Federal agencies was enhanced.

CSC's revitalized operation has not only con

tinued to encourage a variety of equal employment opportunity activities inaugurated before promulgation of Executive Order 11478 but has also moved vigorously in several new directions.

Efforts to recruit blacks, Spanish-speaking Americans, and members of other minority groups have been intensified.

The testing process has been brought under close scrutiny to eliminate cultural bias and develop examinations which actually assess a person's potential for job performance, rather than measure general intelligence or other abilities of little relevance to job performance.

A variety of innovative programs, designed to recruit, train, and employ thousands of disadvantaged youth has been initiated in recent years.

Efforts to eliminate discrimination in promotion practices were furthered by a revised Federal merit promotion policy in August 1968.

Closely related to promotion policy, has been increased emphasis on upward mobility, the searching out underutilized employees, as part of a Governmentwide program of maximum utilization of skills and training.

All first-line supervisors are now required to take training designed to improve their supervisory abilities and heighten their awareness of equal opportunity problems.

Agencies are being encouraged to make wider use of CSC training and non-Government resources to improve the skills of disadvantaged employees.

In its supervisory role, CSC has increased its attention to the equal employment opportunity aspects of agency programs under periodic review by CSC's Bureau of Inspections. A comprehensive set of guidelines, developed by CSC to help agencies formulate equal opportunity plans of action, was issued in December 1969 emphasizing results and suggesting various affirmative actions. They stop short, however, of requiring specific numerical or percentage goals for minority employment.

Revisions in procedures for processing complaints of discrimination in Federal employment went into effect in July 1969. Utilizing agency counselors, they encourage informal resolution of grievances wherever possible. Although indications are that the number of formal discrimination complaints has declined

in recent months, no evaluation of the new system in terms of the basic goal of eliminating discrimination in Federal employment has been undertaken. Remedies, in cases where allegations of discrimination have been substantiated, have generally been inadequate.

Efforts to identify sources of problems or even to measure the equal employment opportunity status of Federal agencies at any given point in time have been handicapped by lack of adequate data. Addressing itself to some shortcomings in this area, CSC has authorized agencies to institute automated data procedures designed, among other things, to provide current information on a variety of Federal employment practices. The new procedures were installed by a number of Federal agencies in conjunction with the November 1969 census of minority group employment in the Federal Government.

CSC has made greater efforts within the past few years to exercise its leadership role with respect to other Federal agencies, as envisioned by the 1965 and 1969 Executive orders. By such means as an Interagency Advisory Group, Federal Personnel Manual, letters, meetings, and seminars with Federal officials, private groups, and individuals, CSC has sought to disseminate its own policies widely and facilitate communication with Federal agencies as well as private groups trying to improve equal employment opportunity in the Federal Government.

Measures which have been undertaken by CSC in recent years have gone far toward attaining equal opportunity within the concept of a merit system of Federal employment. However, in the context of a society which has for generations systematically discriminated against millions of its citizens and has produced a large class of disadvantaged Americans, even an optimally functioning merit system will inevitably reflect these inequities. Therefore, it is doubtful whether continued efforts to eliminate inequity within the confines of the merit system can be entirely successful. Ultimately, it may well be necessary to specifically shape the Federal effort to attainment of equitable representation of minority groups in all agencies and at every level of Federal employment.