when the complainant is found to have been discriminated against in the action at issue.132

In many instances, the matter is moot by the time the decision is rendered-the complainant may have already lost a conference or training opportunity, or may have been placed on an undesirable temporary special detail. Granting the complainant top priority for the next available opening may be the only remedy possible under the circumstances, but it does not afford full relief.

Other corrective actions have value from an equal employment opportunity standpoint, although they may be of little direct benefit to the complainant. CSC reports that supervisors found culpable in discriminatory actions have been "appropriately disciplined including demotion, reassignment, reprimand or warning, and removal from supervisory authority to make appointments or promotion selections." 133 Generally, in its decisions, the board does not recommend disciplinary action beyond that prescribed by the agency, but in a number of cases it has recommended that agencies take or consider taking disciplinary action, such as a reprimand or warning against the guilty official. In no instance, however, has BAR upheld a complainant's request for disciplinary action against a supervisor above and beyond what the agency has prescribed.134

Theoretically, CSC can require an agency to secure CSC's prior approval of every appointment and promotion it seeks to make. This authority represents a potentially strong sanction, which could be used against an agency persisting in discriminatory practices. But in fact, use of this sanction has never been seriously contemplated. Mr. Hampton takes a

** 48 Comp. Gen. No. B-165571, Jan. 31, 1969.

133 Mr. Hampton's reply of Sept. 22, 1969, to questions submitted by the Senate Subcomm. on Labor. (See covering letter of Sept. 22, 1969, from Hampton to Senator Harrison A. Williams, Jr., Chairman, Subcommittee on Labor, Committee on Labor and Public Welfare.) Data on the number of supervisors found guilty of discrimination and the number of those against whom discipilinary action has been taken are not available. Both CSC officials and agency EEO officers agree that the number in each instance is small. Moreover, little, if any, publicity is given to disciplinary actions which have been taken against supervisors found to have discriminated.

134 Berzak interview, supra note 127.

broader view of the role CSC should play in furthering the cause of equal opportunity:

Our reviews of equal employment opportunity indicate... that the obstacles to equality of opportunity are not so much overt acts of discrimination which can be proved and thus which could be overcome by the imposition of sanctions, but rather lack of affirmative action to achieve equality of opportunity. The thrust of our regulations and guidelines is therefore premised on the conviction that equality of opportunity must be achieved through positive action, and that it does not occur simply with the removal of discrimination." g. Collection and Evaluation of Data

135

Virtually every aspect of the Federal civil rights effort has suffered from lack of sufficient data on which to base compliance activity or evaluate the impact of existing programs. The Federal equal employment opportunity effort shares this deficiency and suffers from absence of data. Thus, access to accurate knowledge of the dimensions of a particular problem or a realistic assessment of the value of newer programs is diminished. The extent of the racial impact of examinations remains a matter of controversy in the absence of information by race of those being examined. The significance of current recruitment efforts cannot be appreciated without racial data on persons contacted and interviewed. Training efforts cannot be fairly appraised from an equal employment opportunity standpoint unless such material is collected and analyzed. Only in the matter of full-time Federal employment as of a specified date e.g., November 30, 1967, are racial data available. Although information is categorized by agency, grade, and race [other breakdowns, e.g., by CSC region, by State, by metropolitan area, are also compiled], much relevant information is either not gathered, not collated, or not widely available. Such data as years in grade by race, race by sex, rates of hiring, promotion, and separation by race, are not kept. A perennial problem, that of racial designations, has been particularly troublesome with respect to Spanish Americans. As used by CSC, this category includes "persons of Mexican American and Puerto Rican as well as other Latin American or Spanish origin or ancestry." The broad inclusion currently in use, however, may act to obscure the problems of

particular minority groups within the "Spanish American" category.136

(1) New Regulations

CSC officials have contended that past attempts to expand collection and maintenance of racial data have encountered opposition from civil rights groups. In the 1940's civil libertarians fought to expunge racial identifications from official records on grounds that they were being used to facilitate discrimination. In November 1942, CSC urged all agencies to eliminate photographs from the standard employment form. Many who had struggled to eradicate racial designations two decades earlier found it difficult to reverse their position in the 1960's. Until fairly recently the National Association for the Advancement of Colored People (NAACP) reportedly opposed racial head counts and the American Civil Liberties Union (ACLU) also raised objections based on allegations of invasions of privacy.137

In 1966, Federal employment statistics were gathered largely by means of an employee "self-designation" system, on a voluntary and confidential basis. Information obtained, however, was of doubtful validity.138 The following

136 CSC officials have indicated that the use of the category "Spanish American" is not as troublesome as it may appear. Since there is a high correlation between certain geographical areas, e.g., the five Southwestern States; the metropolitan New York City area; and the two major Spanish American subgroups (Mexican American and Puerto Rican), a more detailed breakdown is not essential for equal employment opportunity purposes. Thus, for example, most Spanish American employees in the New York Civil Service region are Puerto Rican.

In deference to objections of some Spanish-speaking groups to the terminology "Spanish American," the Civil Service Commission now refers to this minority as "Spanish surnamed."

137

Interview with Charles Sparks, Director, Bureau of Manpower Information Systems, Oct. 31, 1969. Sparks reported that "sometime in 1966 or 1967" he and Anthony Rachal (former Special Assistant to the Chairman for EEO) tried unsuccessfully to gain the support of the NAACP for the collection of racial data. About a year later the NAACP modified its position but was still reluctant to go on record. Sparks also reported that a spokesman for the ACLU was hesitant about the desirability of including race on personnel records. However, this same ACLU official reportedly expressed support for the new computerized data processing system recommended by the CSC in September 1969.

year statistics were obtained by a visual identification survey conducted by supervisory personnel. This same method was used in the November 30, 1969, census.139

Mindful of the need for an improved data base, CSC has authorized Federal agencies to institute new automated procedures.140 Taking account of earlier objections, CSC states that the conditions under which the employment statistics are to be maintained, "are designed to safeguard individual privacy and assure the separation of minority employment data from personnel records." 141 The procedures include four distinct phases:

(1) Initial identification and collection: Essentially, the same method is used as was used in the 1967 and 1969 censuses. However, the supervisor's visual identification is recorded on a list which includes the employee's name and identification number.

(2) Establishment of an independent minority identification file: The employee's name is removed and the identifying number with racial designation is fed into an automatic data file.

(3) Update of file: New employees are continuously added; separated employees are deleted.

(4) File output: Outputs, e.g., data by race on hiring, promotions, training, and separation, are achieved by merging the agency's personnel record file with the minority identification file. In all cases only gross data without identification of employees by name are to be used. After use, the merged file is destroyed or stored under safeguards for future use.

either failed to respond or deliberately gave facetious answers. A disproportionately high number of respondents designated themselves "American Indian" either for the reason stated or because a grandparent or great grandparent was an American Indian.

13 The 1969 census requirements were similar to those of the 1967 census. Significant changes included expanded coverage of Standard Metropolitan Statistical Areas (SMSA) from 41 to 75; salary groupings by every grade level (in contrast to subgroupings, each of which encompassed several grades); and reports from selected bureaus and other organizational units.

140 FPM Letter No. 290-2, "Automated Procedures for Processing Minority Group Statistics," Sept. 30, 1969. The letter authorizes and "encourages" agencies to install the approved procedures. However, they are not required to do so.

141 Id., at 1.

Specific authorization by agency head or responsible EEO official is required for its use.

Agencies were instructed to report to CSC if they planned to install the new procedures and, if so, by what date. Initial responses are encouraging.142

h. CSC's EEO Role Vis-a-Vis Other Federal Agencies

Since September 1965 when Executive Order 11246 assigned supervisory and leadership responsibility for equal employment opportunity programs within the executive branch to CSC, that agency has played an increasingly responsible role in this aspect of the Federal civil rights effort. With promulgation of Executive Order 11478 in August 1969, renewed emphasis was placed on equal employment opportunity in the Federal service, and, correspondingly, on CSC's jurisdiction in this effort. It is further reflected in its activity as

142 As of October 31, 1969, most agencies had responded and CSC reported:

"The following agencies plan to use automated procedures in taking the census and to automate statistical processing of the data, as of Nov. 30, 1969: Civil Service Commission; Navy; Air Force; Veterans' Administration; Agriculture; Interior (five bureaus now, remainder in 1970); Justice; Health, Education, and Welfare; Commerce; State; Transportation; and Treasury. Total number of employees, 1,432,779."

"The following agencies plan to use automated assistance in taking the census with later development of the statistical processing systems: Department of Defense, by December 1970; General Services Administration, beginning in February 1970; Interior, remaining bureaus in 1970; Post Office, under consideration for late 1970; and Labor, by August 1970. Total number of employees, 833,599."

"Those agencies indicating in writing that they do not intend to automate are: Army (Army has since indicated it will automate by January 1971); Federal Deposit Insurance Corporation; Selective Service; and National Capital Housing Authority. Total number of employees, 479,334."

CSC furher noted:

"This was not intended to be a comprehensive survey, but in covering agencies employing the bulk of the Federal work force, it is apparent that a large percentage will take advantage of the capabilities of ADP in maintaining and processing data for the management of equal employment opportunity programs. The total of the first two groups above is 2,266,378 personnel, or 74 percent of the work force." U.S. CSC unpublished report, "Report on Implementation PlansAutomated Procedures for Minority Group Identification and Processing of Statistics," Oct. 31, 1969.

coordinator of the Federal equal employment opportunity effort.

(1) Interagency Advisory Group

A major device for developing and exchanging ideas and proposals on personnel policies, projects, and continuing programs has been the Interagency Advisory Group (IAG), established in January 1954. Composed of approximately 60 top personnel officials from all departments and most agencies, the full IAG meets under CSC auspices about once a month and follows an agenda prepared by its Secretariate.143 The Secretariate is also responsible for establishing ad hoc committees, preparing memoranda, notices, and correspondence, providing CSC staff assistance, and for general administration.

Much of IAG business is performed by a variety of ad hoc and standing committees. The chairman of each is an official from the CSC bureau most closely related to the function of the committee. In fiscal year 1969, 29 committees were active and met a total of 56 times.144 However, most committee work is simply handled by phone and correspondence. In addition to full IAG meetings and those of its various committees, informal luncheon meetings are held about once a month for each of four subgroups of the IAG (about 15 persons each).145

Although equal employment opportunity matters occasionally provide the agenda for the monthly IAG meetings 146 and have been the concern of various committees, it was not until

143 Interview with Donald Williams, then Director, Office of Complaints, Oct. 29, 1969. The Secretariat was actually the office of Donald Williams who served as Executive Vice Chairman of the IAG and also acted as CSC's Director of the Office of Complaints (largely an information and referral function). The position is now held by Clinton Smith.

144

"U.S. CSC Interagency Advisory Group Annual Report, July 1, 1968-June 30, 1969.

145 Two of the groups are comprised of representatives from large agencies; two of the groups are made up of personnel directors from smaller ones. These meetings are designed to give IAG members a chance to become better acquainted with one another and/or serve for special consultative purposes in lieu of full IAG consultation. Williams interview, supra note 143.

148 Id. Mr. Williams reported that equal employment opportunity was the subject of four meetings within the past year and a half (April 1968 through October 1969).

November 1966 that a standing committee on equal employment opportunity was established. During fiscal year 1969, Directors of Personnel and Equal Employment Opportunity Officers from the score of agencies 147 comprising the Equal Employment Opportunity Committee met four times under the chairmanship of Edward A. Dunton, Director, Bureau of Recruiting and Examining.148 The group's attention was directed primarily to the revised discrimination complaint procedures. Although the group also made suggestions regarding the agency equal employment opportunity action plans, there is no way of determining the extent of its influence. In the final analysis Government-wide policy decisions on equal employment opportunity are made by the CSC. (2) Other Types of Liaison

In addition to the IAG, other devices have been used in recent months to convey Federal equal employment opportunity policy and to elicit suggestions for improvements. On September 4, 1969, CSC convened a meeting of Department Assistant Secretaries for Administration, Agency Executive Directors, Directors of Equal Employment Opportunity, Directors of Personnel, Coordinators for the Federal Women's Program, and others, to hear Mr. Hampton and CSC staff members describe some of the new directions taken and being contemplated. Although the meeting was billed as a discussion and a question and comment period was provided for, it proved to be mainly a one-way communication medium.

Somewhat different, however, was the 2-day seminar on equal employment opportunity in the Federal service which was held by CSC on December 4 and 5, 1969. Representatives from a number of private civil rights groups, labor unions, professional associations, and a few Federal agencies were invited to participate. CSC bureau and division heads described various equal employment opportunity efforts in recruiting, examining, promoting, training, complaint processing, and other related areas.

Each speaker was subjected to questionsoften sharply hostile-from seminar participants. For much of the 2-day session there was free discussion, with CSC officials receiving criticism for the Federal Government's failure to increase minority representation more substantially.149

The December 4 and 5 seminar reflected an attempt to narrow the communication gap between CSC, as the embodiment of the Federal equal employment opportunity effort, and representatives of the minority community. However, unless the Government can point to results in terms of minority representation, as well as procedures, it is doubtful that this gap can be fully closed. Creation of equal employment opportunity committees, conferences and workshops of Federal officials, meetings and dialogues with private groups, will be perceived as palliatives rather than as solutions.

III. FEDERAL CONTRACT COMPLIANCE A. Introduction

Fully one-third of the Nation's labor force is employed by companies which are Government contractors. Generally, these companies are among the Nation's largest and most prestigious business firms. Typically, they are leaders in the business community and the policies they adopt are frequently the prototypes which other businesses follow.

Over the years elaborate mechanisms have been established to assure effective administration and enforcement of the Government's equal employment opportunity policy within industry. Resources of the various Federal departments and agencies which contract with private businesses are available to monitor compliance. Particular agencies have been assigned responsibility for compliance in specific industries and mechanisms have been established for coordinating and overseeing the entire Federal compliance effort. Further, strong sanctions, such as termination of Government contracts and debarment from future contracts are available to assure full compliance with equal opportunity requirements.

Despite the increasingly strong Presidential commitment to the goal of equal employment

149 Observations of U.S. Commission on Civil Rights staff members who attended the seminar.

opportunity, despite the strength of the sanctions available to secure it, and despite the potential effectiveness of the Federal monitoring mechanisms, equal opportunity in Government contract employment, when measured in terms of employment of minorities, has not been achieved. Presidential commitment has not been realistically communicated to the community of Government contractors; sanctions have rarely been used; and the Federal monitoring mechanisms have proved relatively in

nocuous.

B. Patterns of Discrimination

The responsibilities given by Executive Order 11246 to the Department of Labor are extremely significant in civil rights terms. It is estimated that almost one-third of the Nation's labor force is employed by Government contractors and that there are more than 100,000 contractor facilities covered by the order. 150 In fact, a major proportion of the largest industrial employers are Government contractors.

Documentation abounds that the minority labor force continues to face a serious disparity in the rate of unemployment and promotional opportunities. 151 Indeed, in its public hearings across the country, this Commission has heard innumerable charges of flagrant employment discrimination. Employment statistics submitted by major Federal contractors appear to bear out the assertion, at least as measured by the acid test of results, that Executive Order 11246 and its predecessors have

150 OFCC Order No. 1 to Heads of All Agencies, Oct. 24, 1969. Though estimates vary, it appears that the government had more than 225,000 contractors facilities and sites with at least 20 million workers in 1969. The Budget of the United States Government, 1969 Appendix, at 711.

151

See, for example, Hearings on Discrimination in White Collar Employment Before the United States Equal Employment Opportunity Commission, held in New York, N.Y., Jan. 15-18, 1968 (particularly the employment report on pages 527-668); Hearings on Utilization of Minority and Women Workers in Certain Major Industries Before the United States Equal Employment Opportunity Commission, held in Los Angeles, Calif., Mar. 12-14, 1969 (particularly the background data on pages 350-58); and F. H. Schmidt, Spanish Surnamed Americans Employment in the Southwest (a study prepared for the Colorado Civil Rights Commission under the auspices of the Equal Employment Opportunity Commission) (1970).

not been successful in bringing about equality of job opportunities for America's minorities.

For example, in a May 1967 Commission hearing in the San Francisco Bay Area of California, a review was made of one large federally funded construction project-the Bay Area Rapid Transit (BART) system. For this construction, the Commission was told, BART anticipated grants of up to $80 million in Federal funds and employment of about 8,000 people at peak construction periods. As of May 1967, the Commission found no Negroes among the electricians, ironworkers, or plumbers engaged in this construction.152

In April and May 1968, the Commission held a 5-day hearing in Montgomery, Ala., in which it examined problems affecting the economic security of blacks in a predominantly rural 16-county area of Alabama.153 The Commission found that blacks had been largely excluded from the new industrial jobs created in the area; 154 that Government contractors in the region had done little to improve the situation for the area's black people; and that many contractors had, in fact, contributed tangibly to patterns of segregation and oppression.

155

Among the large Government contractors, with several facilities in the hearing area, was the American Can Co. At its pulp and paper mill in Choctaw County, American Can had contracts with the General Services Administration in the first three quarters of fiscal 1968 for more than $1.7 million. The Commission found that of 1,550 persons employed at this mill, only 108, or 7 percent, were Negro, and that only several of these employees occupied skilled positions. This mill draws its employees from an area whose population is approximately 57 percent black. Since 1960, American Can Co. also had owned a company