CM-607 Affirmative Action

This guidance document was issued upon approval by vote of the U.S. Equal Employment Opportunity Commission.

This document addresses the use of affirmative action and employer use of affirmative action plans under Title VII

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

SECTION 607
AFFIRMATIVE ACTION

607.1 Introduction -

On January 19, 1979 the EEOC published its final Affirmative Action Guidelines (hereinafter referred to as "Guidelines"). [1] The Guidelines constitute the Commission's interpretation of Title VII with respect to affirmative action and give guidance to employers and others who want to take affirmative action. This interpretation has been supported by the Supreme Court in United States Steel Workers of America AFL-CIO-CLC v. Weber, et al., 433 U.S. 193, 20 EPD ¶ 30,026 (1979). The Guidelines address what appears to be a conflict between the statutory prohibition against considering race, sex, and national origin in making employment decisions, and the need, often through affirmative action, to eliminate discrimination and to correct the effects of prior discrimination. The Guidelines and the Weber decision make it clear that there is no conflict, that affirmative action is not prohibited by Title VII.

(a) Discrimination v. Affirmative Action -

Over the past several years, a number of so-called "reverse discrimination" suits have arisen out of this apparent conflict. Employers and others were being sued by White males because they took affirmative action to remedy the effects of past discrimination and to eliminate the adverse effects of present policies and practices. Under Title VII, there is no separate legal concept of "reverse discrimination." Discrimination against any individual on the basis of race, color, religion, sex, or national origin violates Title VII. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 12 EPD ¶ 10,997 (1976). [2] However, the Commission recognizes that race, sex, and national origin conscious decisions may be required in order to eliminate the effects of past discrimination and the adverse effects of present policies and practices.

Affirmative action under the Guidelines is not a type of discrimination but a justification for a policy or practice based on race, sex, or national origin. An affirmative action plan must be designed to achieve the purposes of Title VII; i.e., to break down old patterns of segregation and hierarchy and to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. It must be a concerted, reasoned program rather than one or more isolated events. It should be in effect only as long as necessary to achieve its objectives, and should avoid unnecessary restrictions on opportunities for the workforce as a whole. The Guidelines describe the types of affirmative action that are appropriate under Title VII, and outline what the Commission's response will be when appropriate action has been taken.

(b) Types of Plans

(1) Unapproved Plans - The Guidelines provide a method that enables an employer, labor organization, or other person to develop an affirmative action plan. The decision to develop and implement such a plan can be entirely voluntary on the employer's or labor organization's part, without any finding or admission of a Title VII violation. Such plans are referred to as "voluntary" or "unapproved" plans. (See § 607.11.) The Guidelines instruct the employer or labor organization on what steps to take to determine if voluntary affirmative action is appropriate and what types of action it can take (for the three step process, see § 607.1(e)). If the Commission determines that the action complained of in a charge was taken pursuant to a plan developed according to and/or meeting these standards, a no cause determination will be made.

(2) Approved Plans - An employer or labor organization might also be required to develop and implement a plan under Executive Order No. 11246 (not applicable to labor organizations), by a court order, the directions of a federal agency, or by a state 706 agency. Similarly, an employer or labor organization might develop and implement a plan as part of an agreement with the Commission or a state 706 agency. Where such a plan is reviewed and expressly approved by the agency or court involved, and the action complained of was taken pursuant to the plan, a no cause determination will be made. Such plans are referred to as "approved" plans. (See § 607.6.) However, where a plan is developed and implemented under Executive Order No. 11246, the directions of a federal agency, or by order of or in agreement with a state 706 agency, and it has not been expressly approved, it will be considered and handled as an unapproved plan. (See §§ 607.10 and 607.11(a)(3).)

(c) When Guidelines Apply -

It is important to remember that the Guidelines only apply when affirmative action has been taken. Affirmative action under the Guidelines means those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. There are other situations involving employment decisions based on race, sex, or national origin that do not involve affirmative action. For example, an employer may allege that an action based on sex or national origin is required because of a bona fide occupational qualification.

(d) Voluntary Action -

The legislative history of Title VII indicates that Congress intended that voluntary compliance with Title VII be the primary method of eliminating employment discrimination. Occidental Life Insurance Company of California v. EEOC, 432 U.S. 355, 14 EPD ¶ 7619 (1977). Title VII has two purposes. On the one hand, it sets out the legal requirement that all employment decisions be made without unlawfully discriminating on the basis of race, sex, etc. On the other hand, it seeks to promote voluntary action to accomplish the policy objective of eliminating, as much as possible, all manifestations of discrimination no matter how caused and whether justifiable or not. The Supreme Court has recently recognized that voluntary compliance may involve voluntary affirmative action designed to eliminate racial imbalances in traditionally segregated job categories. The racial imbalance need not have resulted from past discrimination by the employer or other person taking affirmative action. There is no requirement of an admission of prior discrimination before affirmative action can be taken. See United Steel Workers of America AFL-CIO-CLC v. Weber, et al, supra. [3] This decision supports and reinforces the Commission's Affirmative Action Guidelines.

(e) Three Step Process -

Voluntary affirmative action consistent with the requirements of the Guidelines does not violate Title VII. The Guidelines require that affirmative action be taken pursuant to a plan or program. This plan or program must be a concerted and reasoned program, rather than a series of isolated events. An isolated action giving preference to minorities or women, that is not part of an affirmative action plan, will not be considered as raising an affirmative action issue; a charge about such an action should be processed under the other sections of Volume II of this manual. (See especially §§ 604.2 through 604.6 on disparate treatment, and the "Caucasian Charging Party" heading in Exhibit 603-A, Partial Index of Commission Decision Precedent Decisions.) A three step process is therefore required to develop a voluntary affirmative action program or plan: a reasonable self analysis (see § 607.13), a reasonable basis for concluding that affirmative action is appropriate (see § 607.14), and reasonable action (see § 607.15).

(f) Adequacy of Plan -

The Guidelines do not address the question of whether a specific plan or program is sufficient to remedy discrimination. This remains a question of fact to be determined on a case by case basis. (See § 607.3.)

607.2 Identifying the Affirmative Action Issue

(a) Affirmative Action as Justification for Race-, Sex-, or National Origin-Based Practices -

Affirmative action under the Guidelines is not a type of discrimination, but a justification for a policy or practice based on race, sex, or national origin. No affirmative action issue exists unless respondent has acted on the basis of race, sex, or national origin. A charging party might claim that an action taken pursuant to an affirmative action plan, or that the plan itself, violates Title VII, or a respondent might raise a plan as a justification for a policy or practice that adversely affects a charging party or a class.

Example - R has a policy of hiring one Hispanic for every two vacancies in the job category of Plumber's Assistant. The basis of this policy is R's goal of increasing the representation of Hispanics in that category to 25%. A vacancy occurred in March of 1980, and a Hispanic male was hired for the position. CP, an Anglo male, filed a charge alleging that he was not selected because of his race and national origin. R may acknowledge that race and national origin played a part in this particular selection, and raise the affirmative action plan as a relevant justification.

(b) When Justification Applies to Charge Resolution Process

(1) The existence of an affirmative action plan only applies as a justification if the employer's action actually involved consideration of race, sex, or national origin. If an employer has an affirmative action plan, an employee or applicant may erroneously conclude that the plan affected a personnel action involving him/her when the action was actually based on relative qualifications or some other facially neutral criteria. Should this be the case, there would be no issue of an affirmative action justification under the Guidelines. Commission Decision No. 76-136, CCH Employment Practices Guide ¶ 6698; Commission Decision No. 77-4, CCH Employment Practices Guide ¶ 6707; Commission Decision No. 77-5, CCH Employment Practices Guide ¶ 6708.

Example - While R has a national origin conscious hiring policy for Plumber's Assistants, it hires Plumbers without regard to national origin. An Anglo male CP applied for a Plumber position and was rejected in favor of an Hispanic male. CP erroneously believed that R had the same national origin conscious hiring policy for Plumbers as it did for Plumber's Assistants. R in fact hired the Hispanic male because it believed him to be better qualified than CP. In this charge, then, there would be no issue of an affirmative action justification.

(2) A respondent might deny that a decision, policy, or practice was based on race, sex, or national origin, but note that the decision, policy, or practice had the effect of helping to fulfill the goals of an affirmative action plan or program.

Example - R has an affirmative action plan with a goal of increasing the percentage of women in its entire workforce to 50%. The plan provides that, where a male applicant and female applicant have similar qualifications, the female applicant will be hired. R hired a female with what it believed to be better qualifications than the male CP. R claimed that sex played no part in its selection decision, but noted that the selection helped fulfill the 50% goal.

The EOS should ask the respondent to clarify its position. Is the respondent asserting that affirmative action played no part in the employment decision, and that it was made only on the basis of nondiscriminatory factors (e.g., relative qualifications)? If the respondent agrees, then its initial reference to the affirmative action plan need not be considered -- the EOS should resolve the charge without any finding on the affirmative action issue. However, if the respondent replies that its affirmative action plan was at least one consideration in its employment decision, then the EOS should resolve the affirmative action issue -- the respondent is essentially admitting that race, sex, or national origin (in the form of the affirmative action plan) was one factor in its decision.

607.3 No Determination of Adequacy of Plan -

A no cause determination in a charge involving an affirmative action plan means that the particular decision, practice, or policy involved in the charge was made pursuant to an affirmative action plan meeting the standards of the Guidelines. It does not mean that all of respondent's operations are free from discrimination, or that the plan is adequate to completely correct any past or present discrimination.

(a) Limited Protection Provided -

The existence of an affirmative action plan (or program) will not, in and of itself, protect all facets of an employer's operation. The plan might not cover all job categories or all facilities. It may benefit one minority group and not others or it may not completely eliminate the effects of past discrimination. A charge involving job categories or facilities not covered by the plan should be processed as a regular Title VII charge under the other sections of this Manual. A charge filed by a member or members of a minority group not benefited by the plan should be processed under this section if the plan is the basis for the charge or is respondent's justification for the action taken; if not, it should be processed as a regular Title VII charge under other sections of this Manual. For example, a plan might be established to benefit Hispanic applicants. Should an unsuccessful Black applicant file a charge, the respondent or the charging party might claim that charging party's rejection was due to the plan; if so, process the charge under this section. However, if no affirmative action issue is raised by either side, then process as a regular Title VII charge.

(b) Charges Filed by Beneficiaries of Plans

(1) Past, Continuous, or New Discrimination - A respondent need not admit to past or present discrimination in order to adopt an affirmative action plan. However, whether discrimination existed in the past or still exists, and whether an affirmative action plan has done enough to remedy that discrimination, are questions of fact that must be decided on a case by case basis. Therefore, when a charge claiming uncorrected past, continued, or new discrimination is filed by an individual or group covered by a plan, the charge should be processed under the other sections of this Compliance Manual.

Example 1 - CPs, all Black, have filed a charge claiming that R has historically discriminated against Blacks in hiring. They claim that the discrimination is due to R's testing procedures, which have had an adverse impact on Blacks. R, while not admitting to the past discrimination, has recently implemented an affirmative action plan. Under the plan, R will increase the number of Blacks it hires into certain jobs gradually over a ten year period. This may be acceptable as a voluntary affirmative action plan. However, if R has in fact discriminated in the past, it may not be acceptable as a remedial plan: it may not correct the discrimination fast enough, may not include all the job categories for which the test was used, and doesn't provide relief to specific individuals who may have failed the tests in the past. CPs' charge should be handled as one alleging adverse impact in a selection process, under § 610 of Volume II of this Manual.

Example 2 - CP, a woman, applied for and was denied a job with R. She filed a charge of discrimination, alleging that a lesser qualified male was hired. R has an affirmative action plan to correct admitted past discrimination, but it denies that its recent refusal to hire CP was discriminatory. CP's charge should be processed as an allegation of disparate treatment, under §§ 604.2 through 604.6 of this Manual.

(2) Failure to Fully Implement Plan

(i) An employer might also be accused of failing to fully implement a plan. Such an accusation would only be relevant to a Title VII charge when made by an individual or group not covered by the plan, in order to prove either that the so-called plan did not exist at the time of the alleged discrimination (that the employer created the notion of a plan afterwards, in an attempt to justify its actions) or that the employment decision was not made pursuant to the plan. (See § 607.11(b)(2).)

Example - A White employee has been denied a promotion in favor of a Black employee. The White employee files a charge of race discrimination. R replies that the promotion was made pursuant to its affirmative action plan. CP in turn alleges that, even though R has had a written affirmative action plan for a few years, that R has never before taken any action under it, or that it has done so rarely as to have fallen far behind its timetables. The CP is, in effect, asserting that R's affirmative action defense is nothing but a pretext for unlawful discrimination.

(ii) Charges filed by an individual or group covered by the plan, however, should not be reviewed under this section for the following reasons. If the plan is voluntary, the respondent cannot be compelled to implement it. If the plan exists because of a court or agency order, consent decree or settlement agreement, or similar authority (see §§ 607.6 and 607.7 below), the charging party's appropriate avenue of recourse is through the court or agency initially involved. Where the Commission was initially involved, see § 607.7(b) below.

Example 1 - R has a voluntary affirmative action plan which provides that, for the next three years, two out of every three people hired will be women. In the second year of the plan's operation, R only hires one woman for every three people hired. CP files a charge based on this. Because the plan is voluntary, the Commission cannot compel the employer to keep to the goals in the plan. Unless the CP also raises a timely allegation of some form of unlawful discrimination in the hiring process, the charge should be dismissed.

Example 2 - R has an affirmative action plan identical to that in the above example, except that it was ordered by a federal court to correct unlawful discrimination. This R also falls behind the plan's goals. CP's charge of discrimination based on R's failure to meet the plan's goals should be dismissed for lack of jurisdiction. CP should be advised to contact the individuals or class who brought the original lawsuit; they can petition the court that originally ordered the plan for relief.

607.4 Currency of Affirmative Action Plan

(a) Plan Must Be Current -

Under § 713(b)(1) of Title VII and § 1608.11(c) of the Affirmative Action Guidelines, a respondent may raise the existence of an affirmative action plan as a justification (defense) to a charge alleging discrimination only when the plan or program is current.

(b) Currency As a Fact Question -

Currency is a question of fact that must be determined on a case by case basis. Currency is related to such factors as progress in correcting the conditions disclosed by the self-analysis, the date of the last action taken (other than the one leading to the charge) under the plan, and when the respondent last reviewed and/or updated the plan.

(c) Determining Currency of Unapproved Plans -

An unapproved plan (as defined in §§ 607.1(b) and 607.11) is current if it meets the following conditions:

(1) Date of the Plan - The plan must have been in effect on the date that the discrimination allegedly took place. Written plans usually will be dated; however, plans need not be written. (See § 607.11(b).) To establish the date of an unwritten plan, or of a written but undated plan, written corroboration should be obtained. This includes internal memos, letters, and the information obtained in order to verify the existence of an unwritten plan. (See § 607.11(b).)

(2) Progress Under the Plan - Once the date of a plan is determined, the EOS should review the plan and all related documents, such as administrative and court orders and conciliation agreements. Many plans will contain timetables. Specific numerical goals and timetables should be measured against progress to determine currency. (See §§ 607.15(b) and (f)(1).)

If the plan does not contain specific numerical goals and a timetable, the general goals and objectives should be evaluated against the progress made. For such a plan to remain current, there should be a continuing and related series of actions taken pursuant to it. Another indication that such a plan is still current is if it is periodically (e.g., annually) reviewed and updated. It should be noted that there are no absolute answers; each case will have to be weighed on its merits. The EOS should look for good faith on the part of respondent in terms of positive acts to keep the plan current and to accomplish the general goals outlined in the affirmative action plan.

If a plan is found to be out of date, the charge should be processed under the other sections of this Manual.

(d) Currency of Approved Plans -

The currency of a plan that has been approved (as defined in §§ 607.1(b) and 607.6) by a federal agency under Executive Order 11246 or another federal law or proceeding, by the Commission as part of a Commission conciliation or settlement agreement, by a 706 agency, or by a court, may be determined by contacting the approving agency or court. (See § 607.7 below.) If, however, the approving agency or court is unable to make a determination of currency, then proceed under § 607.4(c) above.

607.5 Section 713(b)(1) Defenses -

Where a respondent successfully asserts the affirmative action plan or program as a justification (defense) to a charge of discrimination, the respondent may also be entitled to a written opinion under § 713(b)(1) of Title VII. That section provides that persons acting in reliance on a written interpretation or opinion of the Commission will not be subject to any liability or punishment because of the action. This written opinion can be asserted by a respondent as a defense in the event that new charges involving similar facts and circumstances are thereafter filed against that respondent. In order to receive a § 713(b)(1) letter of opinion, a respondent must expressly ask for it.

(a) Affirmative Action Plans That Rely on the Affirmative Action Guidelines -

The Guidelines themselves are a written interpretation or opinion of the Commission. 29 C.F.R. § 1601.33(b). A respondent may therefore be eligible for a § 713(b)(1) letter of opinion if it developed its plan in reliance on the Guidelines. To be eligible for the letter, the respondent must meet the criteria set out in § 607.5(a)(1) below.

(1) Standards of Review - The plan must meet all of the following standards of review:

(i) The affirmative action plan must have either been put into effect after January 19, 1979 (the date the Guidelines became effective) or, if implemented before that date, reviewed, revised where necessary, and reaffirmed after that date.

(ii) The plan must conform to § 1608.4 of the Guidelines. (See §§ 607.13, 14, and 15 below, and § 1608.10(b) of the Guidelines.)

(iii) The respondent must have relied upon the Guidelines in the development (or revision and reaffirmation) of its affirmative action program, and must specifically assert this reliance. Corroborative evidence should be obtained from the respondent, such as documents and memos, affidavits or statements from policy makers, etc.

(iv) The self analysis and plan must have been reduced to writing, dated, and adopted in good faith. In the absence of evidence of bad faith, good faith will be presumed.

(v) The action complained of must have been taken pursuant to or in accordance with the affirmative action plan. (See §§ 607.8 and 607.16 below.)

(2) Approved or Unapproved - The plan may have been either approved (see §§ 607.6 and 607.7), unapproved (see §§ 607.6(c) and 607.11), or voluntary (see § 607.11) on the part of the respondent.

(3) Preparation of LOD - If all of the above criteria are met, and the plan is current (see § 607.4), the EOS should prepare an LOD finding no reasonable cause (see Exhibit 607-A; should there be a finding by a state or local Fair Employment Practices agency, the letter should be modified in accordance with the instructions in § 5 of Volume I of this manual) and containing the following information:

(i) The respondent's action was taken pursuant to and in accordance with a plan or program which was adopted or implemented in good faith, in conformity with, and in reliance upon the guidelines of the Commission.

(ii) The Commission has found no reasonable cause to credit the allegations of discrimination.

(iii) The respondent is entitled to the protection of § 713(b)(1) of Title VII as regards the instant charge.

(iv) The LOD is in itself s written interpretation or opinion of the Commission pursuant to § 713(b)(1) of Title VII and may be relied upon by the respondent and asserted as a defense in any further proceedings on the instant charge and in the event that new charges involving similar facts and circumstances are thereafter filed against the respondent.

(4) Approval of LOD by the Commission - The district/area office should forward the proposed LOD and a copy of the investigator's memo to the Office of the Chairman, making sure to note that the case is one in which the respondent is requesting a § 713(b)(1) letter because it claims to have relied on the Guidelines; the district/area office should send a copy of the transmittal to the Office of Legal Counsel (OLC), Legal Services Division. The Office of the Chairman will then promptly forward the request to OLC for review.

OLC will submit its reasons for approving or denying respondent's request for a § 713(b)(1) LOD to the Commission's review process; OLC's evaluation of the LOD request will be based upon the general criteria for issuing opinion letters. If the Commission agrees that the respondent is entitled to a § 713(b)(1) LOD, the Legal Counsel or his/her designee will approve and sign the attached LOD. OLC will then return the case to the district/area office under the cover memo at Exhibit 607-B, for further processing in accordance with the Commission's instructions (including signing of the LOD by the district director). If the Commission denies respondent's § 713(b)(1) LOD request, then OLC will return the case to the district/area office under the cover memo at Exhibit 607-D with an explanation for denying respondent's request. A no cause LOD should still be issued (see Exhibit 607-F), but with the following addition as the last paragraph:

This determination is not a written interpretation or opinion of the Commission within the meaning of § 713 of Title VII, for the following reason(s). (State the reasons given by OLC.)

(b) Affirmative Action Plans Not Specifically Relying on the Affirmative Action Guidelines [1608.10(a)] -

Even if a respondent did not specifically rely on the Affirmative Action Guidelines, the respondent may assert that the action complained of was taken pursuant to and in accordance with a plan or program of the type described in the Guidelines. Although § 713(b)(1) does not automatically entitle such a respondent to an opinion letter, the respondent may nevertheless be eligible for one if it meets the criteria set out in § 607.5 (b)(1) below.

(1) Standards of Review - If a respondent asserts that its plan or program conforms to (rather than relies on) the Guidelines, the EOS should determine if respondent meets all of the following standards:

(i) The plan must conform to § 1608.4 of the Guidelines. (See §§ 607.13, 14, and 15 below, and § 1608.10(a) of the Guidelines.)

(ii) The self analysis and plan must have been reduced to writing and must have been dated. (It should be noted that under this subsection a plan can predate the adoption of the Affirmative Action Guidelines, without having to have been reviewed, revised, and reaffirmed after that date.)

(iii) The action complained of must have been taken by the respondent pursuant to or in accordance with the plan. (See §§ 607.8 and 607.16 below.)

(2) Approved or Unapproved - The plan may have been either approved (see §§ 607.6 and 607.7), unapproved (see §§ 607.6(c) and 607.11), or wholly voluntary (see § 607.11) on the part of the respondent.

(3) Preparation and Approval of LOD - Assuming that the plan is current (see § 607.4) and that it meets the requirements of § 607.5(b)(1) above, the Commission staff should process the case as outlined in §§ 607.5(a)(3) and (4), by recommending no reasonable cause and forwarding the proposed LOD and Investigator's Memo to the Office of the Chairman with a copy to OLC, Legal Services Division. Once the Commission has approved or denied issuance of the LOD as a written interpretation or opinion of the Commission, OLC will respond using the memo at Exhibit 607-D, "Request for § 713(b)(1) Letter - Affirmative Action Plan Conforming to Guidelines."

The LOD (Exhibit 607-C) should contain the following information (should there be a finding by a state or local Fair Employment Practices agency, the letter should be modified pursuant to § 5 of Volume I of this manual):

(i) The respondent's action was taken pursuant to and in accordance with a plan or program that conforms to the requirements of the Affirmative Action Guidelines.

(ii) The Commission has found no reasonable cause to credit the allegations of discrimination.

(iii) The LOD is in itself a written interpretation or opinion of the Commission pursuant to § 713(b)(1) of Title VII and may be relied upon by the respondent and asserted as a defense in the event that new charges involving similar facts and circumstances are thereafter filed against the respondent.

(c) Respondent Doesn't Request § 713(b)(1) Opinion Letter -

A respondent might assert its affirmative action plan or program as a justification (defense) to a charge of discrimination, and fail to ask for a written opinion under § 713(b)(1) of Title VII. If the plan or program is found to justify the action taken (according to this manual section), the EOS should use the Model No Cause Letter at Exhibit 607-F.

607.6 Approved Plans: Introduction

(a) Definition and Purpose -

An approved affirmative action plan is one undertaken pursuant to the Commission's own enforcement efforts or other laws or proceedings, that receives prior explicit approval from an agency, court, or other appropriate body. In order to avoid subjecting a respondent to conflicting legal requirements and to give maximum effect to anti-discrimination efforts of various governmental bodies, the Commission has determined that action taken pursuant to such a plan does not give rise to liability under Title VII. The following procedures will be followed for charges where a respondent claims that an alleged discriminatory action was taken pursuant to such an approved plan.

(b) Types of Approved Plans -

A plan will be considered approved for Title VII purposes when it is:

(1) A compliance program under Executive Order 11246, as amended (29 C.F.R. § 1608.5; see § 607.7(a) below);

(2) Part of a Commission conciliation or settlement agreement (29 C.F.R. § 1608.6; see § 607.7(b) below);

(3) Approved under a state or local law of the type described in Title VII (29 C.F.R. § 1608.7; see § 607.7(c) below);

(4) The result of adherence to a court order (i.e., approved or ordered by a court) (29 C.F.R. § 1608.8; see § 607.7(d) below);

(5) Developed in reliance on directions of other federal agencies (29 C.F.R. § 1608.9; see § 607.7(e) below).

(c) Other Plans -

All other plans, whether adopted pursuant to a federal, state, or local law, or voluntarily, are to be processed in accordance with §§ 607.11 et seq. below. (See § 607.11(a) for a definition of "voluntary.")

607.7 Approved Plans: Case Processing -

When an approved affirmative action plan is alleged to violate Title VII or is asserted as a defense to a charge of discrimination, the Commission will investigate and make a determination on the charge in accordance with its usual procedures and pursuant to the standards set forth in the Guidelines as explained in §§ 607.7 through 607.10.

(a) Compliance Programs Under Executive Order 11246, as Amended -

These are plans approved under Executive Order 11246, as amended (E.O. 11246), by an appropriate official of the Department of Labor or its authorized agencies, or otherwise approved, ordered by, or agreed to by a federal agency under E.O. 11246. E.O. 11246 applies to all government contractors and subcontractors, and to parties in all federally assisted construction contracts. Where it is not clear whether the respondent is subject to E.O. 11246, the EOS should contact the OFCCP regional office (see Exhibit 607-E) or other agency or office with which the respondent has filed its plan or entered into an agreement. An affirmative action plan will have been submitted to and approved by the Department of Labor under E.O. 11246 only if its Office of Federal Contract Compliance Programs (OFCCP) area or regional office requested one as part of a compliance review, or the plan is the result of a conciliation or settlement agreement or an agency order. Where such a plan is offered by a respondent as a defense to a Title VII charge, the EOS should take the following steps:

(1) Determine whether the plan has been approved by an appropriate official of the Department of Labor or its authorized agencies, or is part of a conciliation or settlement agreement with and approved by a federal agency. A copy of the plan and any letters expressing approval by the agency should be obtained from the respondent or the government agency involved.

(i) Plans approved prior to October 8, 1978 - Prior to October 8, 1978, a plan could be approved by the Department of Labor or an agency authorized by the Department of Labor, or could be part of a conciliation or settlement agreement of such an administrative agency. A number of government agencies had civil rights or federal contract compliance offices which were authorized by the Department of Labor to approve affirmative action plans. Approval by these agencies or the Department of Labor directly would be indicated either by a letter from the appropriate official accompanying the plan or agreement or by the signature of that official directly on the plan or agreement. If there is any uncertainty as to the authority of a particular agency, contact the OFCCP regional or area office nearest you. If there is any uncertainty as to the authority of the approving official, contact the agency or office directly.

(ii) Plans approved on or after October 8, 1978 - As of October 8, 1978, only the Department of Labor (OFCCP) can approve affirmative action plans under E.O. 11246. OFCCP will approve both the plan and all other aspects of the review. Approval will take the form of either a letter to the employer from the Director or Assistant Regional Administrator of the area or regional office or a conciliation agreement signed by the respondent and either of these officials. Plans presented as approved by OFCCP will only be accepted as such if accompanied by such a letter or agreement.

(iii) Plans not approved - If no approved plan exists, the charge should be processed under §§ 607.11 et seq.

(2) Determine whether the approved plan or agreement was still in effect when respondent's actions were taken. (See § 607.4 on currency.) If respondent's actions were taken after the period of the approval or agreement expired (i.e., when the plan or agreement was no longer current), the charge should be processed under §§ 607.11 et seq.

(3) Determine whether adherence to the plan was in fact the basis for the complaint or the justification for the respondent's action; i.e., whether the alleged discriminatory action was in fact taken pursuant to the plan. (See § 607.8.)

(4) See § 607.9 below for instructions on when to make a no cause determination based on the information obtained in § 607.7(a)(1) through (3).

(5) To determine whether a respondent with a no cause determination is entitled to receive a § 713(b)(1) opinion letter, see § 607.5 below.

(6) Plans approved under E.0. 11246 are CDP. See Commission Decision No. 79-41 (unpublished) (Dept. of Health, Education and Welfare); Commission Decision No. 79-50, CCH Employment Practices Guide ¶ 6758 (Atomic Energy Commission); and Commission Decision No. 79-53, CCH Employment Practices Guide ¶ 6788 (Dept. of Interior).

(b) Plans Part of Commission Conciliation or Settlement Agreements -

Where such a plan is offered by a respondent as a defense to a Title VII charge, the EOS should take the following steps:

(1) Determine whether a conciliation or settlement agreement was signed by an authorized official of the EEOC. A copy of the plan should be obtained from the respondent or the appropriate EEOC district office. * District Directors, the Director of the Office of Program Operations (and * their designees) have the authority to sign conciliation and settlement agreements. If no settlement or conciliation agreement exists, the charge should be processed under §§ 607.11 et seq.

(2) Determine whether the agreement was still in effect when the respondent's actions were taken. (See § 607.4.) If the respondent's actions were taken after the agreement was no longer current, the charge should be processed under §§ 607.11 et seq.

(3) Determine whether an affirmative action plan or program, as defined in §§ 607.1 and 607.2, is part of the agreement. If not, the charge should be processed under §§ 607.11 et seq.

(4) Determine whether adherence to the plan was in fact the basis for the complaint or the justification for the respondent's action. (See § 607.8.)

(5) See § 607.9 below for instructions on when to make a no cause determination based on the information obtained in § 607.7(b)(1) through (4).

(6) To determine whether a respondent with a no cause determination is entitled to receive a § 713(b)(1) opinion letter, see § 607.5 above.

(7) Plans that are part of Commission conciliation or settlement agreements are CDP. See Commission Decision No. 79-48, CCH * Employment Practices Guide ¶ 6783. *

(c) Plans Approved Under State or Local Law -

These are plans ordered by, or developed in agreement with, a state or local 706 agency under a state or local fair employment practices statute or ordinance. A list of these agencies can be found at § 1601.74 of the Commission's Procedural Regulations. Where such a plan is offered by a respondent as a defense to a Title VII charge, the EOS should take the following steps:

(1) Determine whether an order was issued or an agreement or submission was approved by an authorized official of the state or local government. A copy of the order, agreement, or submission should be obtained from the respondent or the 706 agency. The Director of the state or local 706 agency or his/her designee is the appropriate official to approve a plan. If there is any uncertainty as to who has approval authority, the issuing 706 agency should be contacted. If no approved plan exists, the charge should be processed under §§ 607.11 et seq.

(2) Determine whether the agreement was still in effect when the respondent's actions were taken. (See § 607.4.) If the respondent's actions were taken after the agreement was no longer current, the charge should be processed under §§ 607.11 et seq.

(3) Determine whether an affirmative action plan or program, as defined in §§ 607.1 and 607.2, is part of the agreement or order. If not, process the charge under §§ 607.11 et seq.

(4) Determine whether adherence to the plan was in fact the basis for the complaint or the justification for the respondent's action. (See § 607.8.)

(5) See § 607.9 below for instructions on when to make a no cause determination based on the information obtained in § 607.7(c)(1) through (4).

(6) To determine whether a respondent with a no cause determination is entitled to receive a § 713(b)(1) opinion letter, see § 607.5 above.

(7) Plans approved by a state or local 706 agency are CDP. See Commission Decision No. 80-19, CCH Employment Practices Guide ¶ 6800.

(d) Adherence to a Court Order -

When a respondent offers a plan that is part of a court order or a consent decree (i.e., approved or ordered by a court) as the justification for an alleged discriminatory action, the EOS should take the following steps:

(1) Determine whether a court order or consent decree exists. The respondent will often be able to provide copies of the initial order or decree (containing or establishing the plan) and subsequent orders or decrees (including dismissals of the case). If the respondent does not have these, the respondent should be asked to obtain them from the issuing court. Should this not be possible, the EOS should obtain from the respondent the name of the issuing court, the name of the suit giving rise to the order(s) or decree(s), the docket number (if known), and the approximate date(s) of issuance. Then the Office of the Clerk of the issuing court should be contacted and copies requested. The initial contact should be by telephone; the Clerk will inform you if a written request is necessary.

(2) Determine whether the order or decree was issued to enforce a federal, state, or local fair employment practices law or regulation. This will usually be apparent from the order or decree. If it is not:

(i) For orders, the EOS should obtain the written decision, if any, on which the order is based from the respondent. If the respondent is unable to provide the decision, the EOS should contact the Clerk of the issuing Court or the office of the issuing judge.

(ii) If there is no written decision, and for consent decrees, the EOS should obtain from the respondent any pleadings or other court documents indicating the law or regulation on which the order or decree is based. If the respondent is unable to provide such documentation, the EOS should contact the office of the issuing judge and should ask either the judge or his/her law clerk for the law or regulation on which the order or decree is based. In doing so, the EOS should avoid referring to the respondent as "a respondent," and should not mention that a charge has been filed against that employer, employment agency, or union. Such an order or decree is, as a rule, a matter of public record; the EOS should not specify the reason why s/he wants a copy of it. The EOS should be prepared to identify the order or decree with the information obtained from the respondent in § 607.7(d)(1). The EOS should then ask the judge or the law clerk for the statute(s), local ordinance(s) and/or Constitutional provision(s) under which the court action (the lawsuit) was originally brought, and under which of these the order or decree was issued.

(iii) If the order was issued to enforce a fair employment practices law or regulation, the EOS should process the charge according to this section, as an approved plan. If, however, the order was issued to enforce some other type of law, then the charge should be treated as involving an unapproved/voluntary plan (see §§ 607.11 et seq.) or under the other sections of Volume II of this Manual.

Example - A group of instructors at a state university participates in a protest against the university's grading policies. Because of their activities, the instructors are fired. They bring suit in federal district court, claiming that their First Amendment right to free speech was violated by the firing. The court agrees and orders the university to rehire them. This order should not be considered as issued to enforce a fair employment practices law or regulation. Should an individual bring any sort of Title VII charge related to these rehirings, the state university could not raise the court order as an affirmative action defense. The order may, however, be relevant as a legitimate nondiscriminatory reason for an employment action (see §§ 604.2 through 604.6 on disparate treatment) or toward justifying an action as a business necessity (see §§ 604.7 and 610 dealing with adverse impact.)

(3) Determine whether the order or decree was still in effect when the respondent's actions ware taken. (See § 607.4.) This will usually be apparent from the initial or a subsequent order or decree. If no expiration date is specified in any of these documents, and there is no subsequent order or decree of dismissal, the plan should be considered as still in effect. However, if the respondent's actions were taken after the order or decree expired, the charge should be processed under §§ 607.11 et seq.

(4) Determine whether an affirmative action plan, as defined in §§ 607.1 and 607.2, is part of the order or decree. If not, the charge should be processed under §§ 607.11 et seq.

(5) Determine whether adherence to the plan was in fact the basis for the complaint or the justification for the respondent's action. (See § 607.8.)

(6) See § 607.9 below for instructions on when to make a no cause determination based on the information obtained in § 607.7(d)(1) through (5).

(7) To determine whether a respondent with a no cause determination is entitled to receive a § 713(b)(1) opinion letter, see § 607.5 above.

(8) Plans ordered by a court or part of a consent decree are CDP. See Commission Decision No. 78-32, CCH Employment Practices Guide ¶ 6717 ; Commission Decision No. 79-12, CCH Employment Practices Guide ¶ 6743 ; Commission Decision No. 79-21, CCH Employment Practices Guide ¶ 6796 ; Commission Decision No. 79-52, CCH Employment Practices Guide ¶ 6787; Commission Decision No. 79-54, CCH Employment Practices Guide ¶ 6797 ; Commission Decision No. 79-55, CCH Employment Practices Guide ¶ 6789.

(e) Plans Developed in Reliance on Directions of Other Federal Government Agencies -

These are plans approved or ordered by, or developed in agreement with, officials of federal agencies enforcing Federal laws, regulations, or orders other than Title VII or Executive Order 11246. The laws, regulations, or orders must in part seek to ensure equal employment opportunity.

Example - As part of the process of receiving funds under the Comprehensive Employment and Training Act, a grantee might be required to submit an affirmative action plan to the Department of Labor.

(1) Plans developed in reliance on other federal government agencies are CDP, and should be processed in the same manner as those approved under Executive Order 11246. Commission Decision No. 79-62, CCH Employment Practices Guide ¶ 6798 .

(2) Plans may be developed in reliance on other state or local government agencies, under laws other than those mentioned in § 607.7(c) above. These include plans approved by fair employment agencies not designated in § 1601.74 of the Commission's Guidelines, under a state or local fair employment statute or ordinance. Also included here are plans approved, for example, by a state revenue sharing office under a state revenue sharing law. These plans are non-CDP, and should be processed under §§ 607.11 et seq.

607.8 Approved Plans: Basis for Complaint or Justification for Respondent's Action -

In order to invoke affirmative action as a justification for a challenged policy or practice, a respondent must demonstrate that the policy or practice that is the subject of the charge was based on the approved affirmative action plan. This can be done in one of two ways.

(a) General Plans -

A respondent's plan may be couched in general terms, leaving respondent free to achieve the plan's objective as it sees fit; e.g., a plan that is part of a general court order might simply require achievement of a workforce composition with a racial balance equal to that of the civilian labor force without specifying any steps, timetables, or interim goals to reach this objective. The respondent must then provide evidence of how a specifically challenged policy or practice was related to the general provisions of the plan. The EOS should determine whether the action was reasonable; i.e., whether it would have logically fostered the objectives of the plan. (See § 607.15 for a discussion of what types of actions can be considered reasonable.)

Example - A respondent may have disproportionately few women in its mechanics department. The plan that has been approved simply states that the respondent will correct this imbalance. Although it has attempted to recruit women, the respondent's longstanding requirement that applicants have five years of mechanic's experience has deterred women from applying. The respondent might then take reasonable action to correct the imbalance, such as affirmative recruitment, implementation of a training program with goals and ratios, or dropping the experience requirement -- all steps that would logically lead to achievement of the plan's objective (hiring more women). (See § 607.15 for further examples of general plans.)

(b) Detailed Plans -

In some instances the approved affirmative action plan will specifically set forth the challenged policy or practice. When a plan is accepted by the Commission as approved (pursuant to §§ 607.6 and 607.8(a) through (e)), then the entire plan is accepted -- including any actions set out in the plan (whereas, with general plans, the Commission must determine if the alleged discriminatory action taken furthered the plan's objectives). The EOS should check to see if the respondent's action or policy is expressly set forth in the plan or program.

Example - R developed and implemented an affirmative action plan as part of a Commission conciliation agreement. The plan provides that, within five years, 40% of R's medical technicians will be women. To reach this goal, the plan provides that two out of every three vacancies will be filled by women. CP, a male, applies for a job as a medical technician and is rejected in favor of a woman. If R can show that this alleged discriminatory selection decision resulted from an application of the two-out-of-three rule, then this adherence to the plan will justify the decision.

(c) Relative Qualifications -

In hiring and promotion situations, if the respondent's action (the selection) was taken pursuant to the plan or program, then it may not be necessary for the EOS to compare the relative qualifications of the charging party and the selectee. The EOS should determine whether the selectee is qualified for the position; if so, the fact that charging party or other applicants might be better qualified may be irrelevant. (See §§ 604.3(a)(1) and 604.4(i) on disparate treatment.) However, if the selectee was not qualified for the position, the EOS should conclude that the action was not based on the affirmative action plan; e.g., the selectee had failed a validated selection procedure while others who had passed it were not hired.

607.9 Approved Plans: When to Make No Cause Determinations

(a) No Cause -

When an affirmative action plan is approved (as defined in §§ 607.6 and 607.7) and adherence to the plan is found to be the basis for the complaint or the justification for the actions taken (according to § 607.8), a determination of no reasonable cause should be made. (See Model No Cause Letters at Exhibit 607-A, Exhibit 607-C, and Exhibit 607-F; the letter at Exhibit 607-F is for use where the respondent has not expressly asked for a § 713(b)(1) letter -- see § 607.5. If there is a finding by a state or local Fair Employment Practices agency, whichever letter is used should be modified pursuant to § 5 of Volume I of this Manual.)

(b) Other -

When an affirmative action plan is approved, but adherence to the plan is not found to be the basis for the complaint or justification, the EOS should either:

(1) Process the charge under §§ 607.11 et seq, if it appears, or the respondent claims, that the action was taken pursuant to another, unapproved affirmative action plan; or, if not

(2) Process the charge like any charge raising similar substantive issues under the remainder of this Compliance Manual.

607.10 Where Approval Is Alleged But Not Proven -

In some instances a respondent may allege that the charge involves policies or practices taken pursuant to an approved affirmative action plan, but there may not be adequate evidence of approval or, for other reasons, investigation may not show that the plan or program was approved in the manner set forth in § 607.7 above. The plan or program may still provide an affirmative action justification for the challenged policy or practice, if the affirmative action claim meets the standards for "voluntary" plans or programs. (See §§ 607.11 et seq. below.)

607.11 Unapproved Plans: Introduction

(a) Types of Charges Processed Under This Section

(1) Voluntary affirmative action plans by private employers. A "voluntary" plan is one developed on the employer's own initiative, and not ordered or approved by a governmental agency or court. (See § 607.1)

(2) Voluntary affirmative action plans by state or local government employers. There are conflicts among the circuit courts as to whether a wholly voluntary plan is permissible; whether an administrative, legislative, or judicial finding of past discrimination is required before an affirmative action plan can be adopted; or whether some sort of administrative, legislative, or judicial approval of the plan is necessary. Much of this conflict stems from the Supreme Court's decision in Regents of the University of California v. Bakke, 438 U.S. 265, 17 EPD ¶ 8402 (1978). A number of courts have interpreted Bakke as allowing wholly voluntary plans, without any formal finding or approval; this is the Commission's position. Zaslawsky v. Board of Education, L.A. Schools, 610 F.2d 661, 22 EPD ¶ 30,789 (9th Cir. 1980); Baker v. City of Detroit, 483 F.Supp. 930, 23 EPD ¶ 30,980 (E.D. Mich. 1980); Minnick v. Department of Corrections, 95 Cal.App.3d 506, 20 EPD ¶ 30,233 (Ct.App. 1979), cert. dismissed, 452 U.S. 105 , 26 EPD ¶ 31,842 (1981). Other courts have interpreted Bakke as requiring a formal finding of past discrimination before an affirmative action plan can be adopted. Regents of the University of California v. Bakke, supra, opinion of J. Powell, 438 U.S. at 305, opinion of JJ. Brennan, White, Marshall, and Blackmun, 438 U.S. at 325 (race may be taken into account to remedy disadvantages due to past prejudice "at least when appropriate findings have been made by judicial, legislative, or administrative bodies. "); Detroit Police Officers' Association v. Young, 608 F.2d 670, 694, 21 EPD ¶ 30,313 (6th Cir. 1979), cert. denied, ____ U.S. ____, 26 EPD ¶ 31,881 (1981). Another interpretation might require some sort of formal administrative, legislative, or judicial approval. U.S. v. City of Miami, 614 F.2d 1322, 22 EPD ¶ 30,822 (5th Cir. 1980), reh'g. en banc granted, 625 F.2d 1310, 24 EPD ¶ 31,372 (5th Cir. 1980). Again, the Commission's position is that a wholly voluntary plan, without any formal finding or approval, is permissible.

(3) Other plans not approved under the procedures set out in § 607.7 above. See Commission Decision No. 81-4, CCH Employment Practices Guide ¶ 6755; Commission Decision No. 81-13, CCH Employment Practices Guide ¶ 6766; Commission Decision No. 81-26, CCH Employment Practices Guide ¶ 6801 (all decisions involving plans prepared pursuant to E.0. 11246, but never approved by OFCCP.)

(b) Written and Unwritten Plans

(1) Written Plans - A copy of the plan should be obtained from the respondent.

(2) Unwritten Plans - With unwritten plans, the first consideration should be to determine whether an affirmative action plan actually existed at the time of the alleged discrimination. In order to make this determination, the EOS should obtain a written statement from the respondent describing the affirmative action plan. The statement should include an explanation of why the plan wasn't put in writing. The names of the individuals who developed the plan should be provided, as well as the names of those in charge of implementing the plan (i.e., those responsible for reviewing and monitoring the plan). The date the plan was developed, the date it went into effect, and the expiration date (if any) should be included in the statement. The components of the plan should be provided, including a description of the self analysis and respondent's reason for believing affirmative action was necessary. Finally, the statement should include a description of the action that was planned and the action that was taken pursuant to the plan (e.g., training programs, goals and timetables, recruitment efforts). The EOS should then consider all this information as a whole to determine whether a comprehensive plan actually existed at the time of the alleged discrimination, or whether the plan was devised afterwards in an attempt to excuse the alleged discrimination. This issue is non-CDP, and the EOS should contact Coordination and Guidance Services, Office of Legal Counsel for further guidance.

If the EOS in consultation with Coordination and Guidance Services, Office of Legal Counsel determines that no affirmative action plan existed, the charge should be investigated like any charge raising similar substantive issues, under the other sections of this Compliance Manual. If the EOS in consultation with Coordination and Guidance Services, Office of Legal Counsel, determines that the plan did exist, the charge should be processed under §§ 607.11 through 607.17.

607.12 Unapproved Plans: Case Processing -

When a respondent's justification for its action or the basis of the charge is that the action was taken pursuant to a voluntary affirmative action plan, or the EOS determines that a plan or program of the type cited in §§ 607.6 and 607.7 above was not approved, §§ 607.13 et seq. will apply. The Commission will investigate and make a determination on the charge in accordance with its usual procedures and pursuant to the standards set forth in the Guidelines, as explained below. The investigation should focus on determining whether the plan conforms to the requirements of the Commission's Affirmative Action Guidelines. The Guidelines require that an affirmative action plan be a concerted and reasoned program, rather than one or more isolated events. Commission Decision No. 75-082, CCH Employment Practices Guide ¶ 6501. A plan must therefore contain a reasonable self analysis, a reasonable basis for believing that affirmative action is appropriate, and reasonable action. The following sections discuss each of these requirements.

607.13 Unapproved Plans: Reasonable Self Analysis

(a) Definition -

The self analysis is the process by which a respondent determines whether its employment practices limit, exclude, or restrict employment opportunities for minorities and women.

(b) Determine Whether a Self Analysis Was Conducted -

If the self analysis was written, a copy should be obtained from the respondent. If the self analysis was not written, the following should be obtained: a statement of when the self analysis was conducted; who conducted the self analysis; and a written, detailed statement from the respondent, preferably from the person who conducted the self analysis, outlining the steps taken in conducting the self analysis. If the evidence reveals that no self analysis was conducted, the charge should be processed like a charge raising similar substantive issues under the remaining sections of this Compliance Manual.

(c) Determine Whether Self Analysis Was Reasonable -

There is no single method of conducting a self analysis. An employer undertaking a self analysis should be concerned with determining whether its employment practices have limited, restricted, or excluded employment opportunities for minorities and/or women. The employer should look for the existence of adverse impact, disparate treatment, or practices and policies that leave uncorrected the effects of past discrimination. Any method designed to and which does obtain information on the existence of these elements is a reasonable self analysis.

(1) The following are examples or components of a reasonable self analysis:

(i) The procedures set out in E.O. 11246 and its implementing regulations, or related orders issued by the Office of Federal Contract Compliance Programs (see 41 C.F.R. § 60-2.11 (1980), at Appendix A; also, Commission Decision No. 81-4, CCH Employment Practices Guide ¶ 6755; Commission Decision No. 81-13, CCH Employment Practices Guide ¶ 6766); Commission Decision No. 81-26, CCH Employment Practices Guide ¶ 6801;

(ii) Procedures required by other federal, state, or local laws or regulations which prohibit employment discrimination;

(iii) An examination of the procedures used for hiring, promotion, merit increases, demotion, discharge, layoff, etc., to determine whether any device has or has had an adverse impact on the employment opportunities of minorities and women (see § 607.14(b));

(iv) The procedures set out in § 4D of the Uniform Guidelines on Employee Selection Procedures for determining adverse impact based on applicant flow and selection rate (see § 610 of Volume II of this Manual, on employee selection);

(v) The procedures set out in § 609 of Volume II of this Compliance Manual for determining underutilization; i.e., comparison of the percentage of members of individual minority groups and women in the respondent's workforce or in a segment of the workforce, with the percentage of those groups in the civilian labor force in the Standard Metropolitan Statistical Area where the respondent is located, or with the national civilian labor force. These procedures emphasize use of the civilian labor force (or a part of it) and the Standard Metropolitan Statistical Area (SMSA) in determining the existence and extent of underutilizaton. However, for affirmative action purposes, there is no one segment of the population or labor force that will be appropriate for use in all circumstances. In some circumstances, it may be appropriate for respondent to use general population instead of labor force figures, or a segment of the labor force instead of overall figures, or a labor market other than the SMSA. (See § 609, and contact OPI if further guidance is necessary.)

(2) The preceding are merely examples of reasonable self analysis. Any method which produces evidence of the effect of a respondent's employment practices is reasonable. Unless a respondent's self analysis was clearly arbitrary or unreasonable, the Commission will presume reasonableness. If the evidence reveals that respondent's self analysis was not reasonable, process the charge like any other charge raising similar substantive issues under the other sections of this Manual.

607.14 Reasonable Basis -

A respondent must have a reasonable basis for believing that affirmative action is appropriate. Commission Decision No. 81-4, CCH Employment Practices Guide ¶ 6755. A respondent arrives at this basis by conducting a self analysis and evaluating its results.

(a) Discrimination Need Not Be Proven Nor Admitted -

A respondent may have a reasonable basis for believing that affirmative action is appropriate without any admission or finding of discrimination. Similarly, a respondent's self analysis need not establish that a violation of Title VII has occurred.

(b) When Reasonable Basis Exists -

A respondent would have a reasonable basis for taking affirmative action if its self analysis indicated that its employment policies or practices have one or more of the following effects. There need not be any admission or formal finding of a Title VII violation, nor is it relevant that there might arguably exist defenses to whatever past discrimination may have occurred (e.g., business necessity, BFOQ, a bona fide seniority system, etc.).

(1) Adverse Impact - When a respondent's policies or practices have or tend to have an adverse effect on employment opportunities of members of previously excluded minority groups, or groups whose employment or promotional opportunities have been artificially limited, reasonable basis would exist. 29 C.F.R. §§ 1608.3(a) and 1608.4(b)(1). (See §§ 604 and 610 of this Manual, on adverse impact, and § 607.13(c)(1).)

(2) Effects of Prior Discrimination - When a respondent's policies or practices leave the effects of prior discrimination by the respondent or others uncorrected (e.g., resulting in a limited labor pool), reasonable basis would exist. 29 C.F.R. §§ 1608.3(b) and (c), 1608.4(b)(2). The effect of past discriminatory practices can be initially identified by a comparison between the employer's workforce, or a part of the workforce, and an appropriate segment of the labor force. Commission Decision No. 81-13, CCH Employment Practices Guide ¶ 6766 (underutilization of minorities due to limited labor pool). (See § 604 of this Manual on perpetuation of past discrimination, and § 609 on underutilization.)

(3) Disparate Treatment - When a respondent's policies or practices result in disparate treatment (i.e., in classifying and treating individuals differently on the basis of race, color, sex, or national origin), reasonable basis would exist. 29 C.F.R. § 1608.4(b)(3). (See § 604 of this Manual on disparate treatment.)

(c) Examples

Example 1 - R's major recruitment source for accountants is Ivy League universities, which are predominantly White and male. This results in virtually no minority or female applicants. R's reliance on recruitment at only these universities therefore has an adverse effect on the employment opportunities of minorities and women. R has a reasonable basis for believing that affirmative action is appropriate.

Example 2 - R has several occupations in the skilled craft category: plumber, carpenter, welder, and crane operator. To be considered for any of these jobs with R, an applicant must have six years of experience in that job, either with R or elsewhere. Blacks have traditionally been excluded from the position of carpenter and crane operator on an industry-wide basis. The available pool of applicants for these two positions who meet R's experience requirement has therefore been artificially limited by societal discrimination. Blacks have never had the opportunity to acquire any or sufficient experience. R has a reasonable basis for taking affirmative action to increase the number of Black carpenters and crane operators in its workforce. On the other hand, the number of Black plumbers and welders meeting R's experience requirement is relatively high, due to a training program instituted eight years ago by one of the trade unions. In fact, as many Blacks apply for these positions as Whites, even though Blacks make up only 20% of the general population in the area where R is located and only 30% of the relevant labor force (i.e.. 30% of the plumbers and welders in the area). Further, 35% of the plumbers and welders employed by R are Black. R may therefore not have a reasonable basis for taking affirmative action with regard to plumbers and welders. (See Commission Decision No. 81-13, CCH EEOC Decisions (1983) ¶ 6766).

Example 3 - R had refused to hire Blacks before Title VII went into effect, but began hiring them afterwards. R has always filled its supervisory positions by promotion based on length of service. The long term effect of the pre-Act discrimination, then, is that all of R's current supervisors are those White employees hired prior to 1964. R has a reasonable basis for taking affirmative action to increase the number of Black supervisors.

607.15 Unapproved Plans: Reasonable Action

(a) General Standards

(1) An affirmative action plan must be designed to achieve the purpose of Title VII, i.e., to break down old patterns of segregation and hierarchy and to overcome the effects of past discrimination.

(2) An affirmative action plan must be designed to solve the problem disclosed by the self analysis and to ensure that employment systems operate fairly in the future.

(3) An affirmative action plan must be a concerted, reasoned program, rather than one or more isolated events.

(4) An affirmative action plan must be temporary, i.e., in effect only as long as necessary to achieve the plan's objective.

(5) An affirmative action plan must avoid unnecessary restrictions on opportunities for the workforce as a whole.

(6) An affirmative action plan must contain specific goals and objectives, numerical or otherwise. The exact steps to be taken to reach these goals and objectives need not be set out in the plan in detail, although it is preferable if they are. For example, a plan might include as a goal a gradual restructuring of the production process, to allow the hiring of more unskilled workers. The specific steps that would reach this goal could include the introduction of easier-to-operate machinery, a "buddy system" of teaming more skilled workers with less skilled ones, etc. These steps need not be included in the plan. Similarly, a plan might include increasing the number of women in the employer's workforce from the present 10% of the civilian labor force to 20% next year, 30% the following year, and so on. The plan could but does not have to specify the exact steps to be taken to meet this goal, e.g., two out of every three new hires to be women, recruitment through women's organizations, etc. (See § 607.15(f) for further examples of reasonable action.)

(b) Goals and Timetables

(1) An affirmative action plan may contain goals and timetables. Commission Decision No. 81-4, CCH Employment Practices Guide ¶ 6755. Goals should be established for specific job classifications, and should be related to the following factors: the effects of past discrimination (see § 607.14(b)(2)); the need to eliminate adverse impact or disparate treatment (see §§ 607.14(b)(1) and (3)); the availability of basically qualified or qualifiable applicants; and the number of employment opportunities expected to be available.

(2) OFCCP requires that an affirmative action plan include goals and timetables to satisfy the requirements of E.O. 11246. While a plan does not have to have goals and timetables for Title VII purposes, OFCCP's regulations do provide guidance. (See 41 C.F.R. § 60-2.12 (1980), at Appendix B.)

(c) Monitoring -

One of the general standards for reasonable action is that the plan be temporary. Further, plans must be current. (See § 607.4). A plan must therefore contain an internal audit and reporting system, to measure the effectiveness of the total program and enable the respondent to determine when affirmative action is no longer appropriate.

(d) EEO Coordinating Council -

A respondent may adopt the affirmative action plan described in the Equal Employment Opportunity Coordinating Council's "Policy Statement on Affirmative Action." This statement contains useful illustrations of appropriate affirmative action, including reorganization of work, revamping of selection procedures, recruitment programs, training, etc. (See § 1608.4(c)(1) of the Affirmative Action Guidelines.)

(e) Unreasonable Actions -

Under United States Steelworkers of America v. Weber, 443 U.S. 193 (1979), the following types of actions will not be considered reasonable; plans or programs containing them are not permitted under Title VII.

(1) Plans that require the discharge of persons not covered by the affirmative action plan and their replacement with persons who are covered. For example, in Commission Decision No. 79-51, CCH Employment Practices Guide ¶ 6786, the plan was interpreted as requiring the discharge of a White employee in order to hire a Black applicant.

(2) Plans that create an absolute bar to the employment or advancement of persons not covered by the affirmative action plan (e.g., a training program that admits women and minorities only) (see Commission Decision No. 75-268, CCH Employment Practices Guide ¶ 6452; Commission Decision No. 78-6, CCH Employment Practices Guide ¶ 6590; Commission Decision No. 79-63, CCH Employment Practices Guide ¶ 6799);

(3) Plans that are designed to maintain racial, sexual, or ethnic balance rather than to correct an imbalance.

(f) Examples of Reasonable Action -

Each employer has a unique employment situation which, along with the employer's own creativity, will affect the types of actions contained in a plan. Because of the wide range of actions possible, the following are simply a few examples of reasonable action.

(1) Goals and Timetables - Goals and Timetables may be calculated in a number of ways.

Example - The relevant labor pool for the job of Bookbinder is 20% female. The Acme Binding Company employs 100 Bookbinders, only 10 of whom (10%) are women. Acme has analyzed its hiring practices, has concluded that it is underutilizing women in this job, and has voluntarily decided to take affirmative action to increase the number of female Bookbinders. Acme can set itself a long range or final goal of anywhere from 11% (higher than its present complement) to 20% (equal to the relevant labor pool, and representing the complete elimination of the underutilization); with an unapproved/voluntary plan, once the respondent has determined that its employment practices limit, exclude, or restrict employment opportunities, then any reasonable goal it sets that would improve those opportunities is acceptable. In other words, with an unapproved/voluntary plan, any goal that makes any progress towards eliminating the disparity between the current underutilization and availability is acceptable. Acme decides to set 20% as its long range goal. In order to be able to meet this goal Acme should, as part of its plan, develop a timetable. This should include annual goals based on the long range goal and the number of projected vacancies per year. In order to reach the long range goal, the annual goals shouldn't be lower than the ultimate goal; they can, however, be equal to it or higher than it (as long as males are not excluded entirely). Acme knows that it generally has five Bookbinding vacancies per year. The minimum annual goal Acme can set in order to be sure to reach the long range 20% goal is also 20%, i.e., one out of each five new hires. At that rate it would take 10 years to reach the ultimate goal (to hire another 10 women). This, of course, assumes that none of the present female Bookbinders or any of the subsequent female hires quits. To cover that possibility, and to shorten the timetable generally, Acme decides to set an annual goal of 40%. Two out of each five new hires will be female, and the timetable will be five years (two female hires per year, so that 10 are hired in five years).

(2) Recruitment - Recruitment directed towards minority group members and women can be an important part of reasonable action. Advertising job vacancies in media (newspapers, magazines, radio, television) oriented towards minorities and/or women is one technique; advertising in minority residential areas is another. Recruiting through women's or minority organizations, for example, the National Organization of Women or the National Urban League, can also be helpful.

(3) Elimination or Revision of Selection Procedure - A respondent, as part of its self analysis, may discover that one of its selection procedures or criteria has an adverse impact on a particular minority group or on women. By eliminating or revising the procedure or criteria, the employer can reasonably expect to attract more minorities or women. [Note: The employer may or may not be under an obligation to eliminate the procedure, depending upon whether the procedure can be justified. (See § 610 on employee selection.)]

(4) Lack of Skilled Applicants - One problem employers frequently encounter in taking affirmative action is in finding minorities and/or women with the skills necessary to perform jobs.

Example 1 - Upon analyzing its workforce and applicant flow, the Acme Engine Company realized that it employed very few women as mechanics, and that very few women applied for such jobs. Further analysis revealed that there were very few skilled female mechanics in the relevant labor pool. To hire more women, Acme redesigned its jobs and work assignments to provide entry level opportunities for persons lacking mechanic skills. The duties of the Junior Mechanic position formerly involved doing the relatively unskilled tasks of oil changes and lubrication jobs and the more complicated task of engine tune ups. Acme created the new position of Mechanic's Helper. Helpers would now do the unskilled jobs, while Junior Mechanics would continue to do tune ups. In this way, Acme hoped to be able to hire and train more female mechanics.

Example 2 - Another way for an employer to increase the number of minorities and/or women in more skilled positions is for it to provide formal and informal (on the job) training. In the example above, Acme Engine Company also arranged for Mechanics Helpers to observe and assist Junior Mechanics in doing tune ups. Through this on the job training, a Helper would learn the skills necessary for promotion to Junior Mechanic. Similarly, Junior Mechanics were sent to formal training programs offered by the National Institute for Automotive Safety, to learn the more complicated tasks that Acme's Senior Mechanics were responsible for. Through these steps, Acme could reasonably expect to eventually increase the number of female mechanics at all levels.

(5) Transportation - A respondent may have a plant located away from minority residential areas; e.g., the plant may be located in the suburbs, while most minority group members live in the center city. One type of reasonable action to attract more minorities would be provide daily transportation at no or minimal cost to the employees. If the distance is too far to commute, the respondent could offer relocation assistance to those willing to move closer to the plant.

(6) Child Care - One obstacle to the hiring of women is the need for and expense of child care. An employer could increase its female representation by providing free or low cost day care facilities at the workplace, or by helping employees set up a cooperative day care program at some other location.

(7) Seniority - Seniority rosters and systems frequently prevent minorities and women from obtaining promotions. While an employer frequently cannot be required to change its seniority system (see § 616 on seniority), it nevertheless can do so voluntarily (if a union is involved, the union would also have to agree to the change). An employer with a departmental seniority system, for example, could voluntarily change to a plant-wide system, if that action would provide minorities and women with greater upward mobility and employment opportunities. Similarly, an employer could modify its seniority system to avoid laying off recently hired minorities or women. Commission Decision No. 81-13, CCH Employment Practices Guide ¶ 6766. (See § 616.26 of Volume II of this Manual.)

(8) Career Counseling - Employees frequently do not have a clear understanding of a respondent's employment needs and their own employment opportunities. Similarly, they may not be aware of the types of training they could obtain on their own in order to enhance their promotional opportunities. An employer could take reasonable affirmative action by providing career counseling to its employees.

607.16 Unapproved Plans: Basis for Complaint or Justification for Respondent's Action -

As with approved plans, a respondent must demonstrate that the policy or practice that is the subject of the charge was based on the affirmative action plan. Again, the plan must contain specific goals and objectives, numerical or otherwise. If the plan does not set out the specific actions to be taken to meet the goals and objectives, then the respondent must provide evidence of how a specifically challenged policy or practice was related to the goals and objectives. The EOS should determine whether the action was in fact reasonable; i.e., if it logically fostered the objectives of the plan. (See § 607.8(a).)or if the plan does set out the specific steps to be taken to meet the plan's objectives. Therefore, the EOS should check to see if the respondent's action or policy is expressly set forth in the plan or program. (See § 607.8(b).) Again, as with approved plans, relative qualifications may be irrelevant. (See § 607.8(c).)

607.17 Unapproved Plans: When To Make No Cause Determinations

(a) No Cause -

When an affirmative action plan meets the requirements of §§ 607.11 through 607.15, the plan was in effect when respondent's actions were taken (see § 607.4), and adherence to the plan is found to be the basis for the complaint or the justification for the actions taken (according to § 607.16), a determination of no reasonable cause will be made. Commission Decision No. 81-4, CCH Employment Practices Guide ¶ 6755. (See Model No Cause Letters at Exhibit 607-A, Exhibit 607-C, and Exhibit 607-F; the letter at Exhibit 607-F is for use where the respondent has not expressly asked for a § 713(b)(1) letter -- see § 607.5. If there is a finding by a state or local Fair Employment Practices agency, whichever letter is used should be modified according to § 5 of Volume I of this Manual.)

(b) Other -

When an affirmative action plan does not meet all of the requirements of §§ 607.11 through 607.15, and/or the plan was not in effect when respondent's actions were taken (see § 607.4), and/or adherence to the plan is not found to be the basis for the complaint or the justification, the charge should be processed like any charge raising similar substantive issues, under the other sections of this Compliance Manual. Commission Decision No. 75-68, CCH Employment Practices Guide ¶ 6452; Commission Decision No. 78-6, CCH Employment Practices Guide ¶ 6590; Commission Decision No. 79-51, CCH Employment Practices Guide ¶ 6786; Commission Decision No. 79-63, CCH Employment Practices Guide ¶ 6799.

[USE DISTRICT OFFICE LETTERHEAD]

Charge No. 000-00-0000

[Name of Charging Party]

[City, State, and Zip Code] Charging Party

[City, State, and Zip Code] Respondent

Under the authority vested in me by the Commission's Procedural Regulations, I issue on behalf of the Commission, the following determination as to the merits of the subject charge.

Respondent is an employer within the meaning of Title VII and the timeliness, deferral, and all other jurisdictional requirements have been met.

Having examined the record presented, I find that Respondent's action was taken pursuant to and in accordance with an affirmative action plan or program which was adopted or implemented in good faith, in conformity with, and in reliance upon the Commission's Affirmative Action Guidelines, 29 C.F.R. 1608. I therefore conclude that there is not reasonable cause to believe that the charge is true. Respondent is entitled to the protection of § 713(b)(1) of Title VII regarding the charge.

This determination concludes the Commission's processing of the subject charge. Should the charging party wish to pursue this matter further, he may do so by filing a private action in Federal District Court within 90 days of his receipt of this letter and by taking the other procedural steps set out in the enclosed NOTICE OF RIGHT TO SUE.

This determination is a written interpretation or opinion of the Commission pursuant to § 713(b)(1) of Title VII and may be relied upon by Respondent and asserted as a defense in any further proceedings on this charge. It may also be relied upon by Respondent and asserted as a defense in the event that new charges involving similar facts and circumstances are filed against Respondent.

On behalf of the Commission:

Date [District Director]

Notice of Right to Sue

(PLAN OR PROGRAM THAT RELIES ON GUIDELINES)

TO: ______________________________, Director

Pt. Barrow District Office

FROM: Office of Legal Counsel

Legal Services Division

SUBJECT: Request for § 713(b)(1) Opinion Letter-Affirmative Action Plan Relying on Guidelines - Charge: _______________ v. _______________

Respondent has requested a § 713(b)(1) letter of opinion. The Investigator's Memo and recommended LOD you submitted to Headquarters on [date] finds no cause and would extend the 713(b)(1) defense.

____ The Commission has approved the recommended disposition and the Office of Legal Counsel has signed the recommended LOD. It is returned for further processing.

____ The Commission has not approved the recommended disposition and the Office Of Legal Counsel has not signed the recommended LOD for the reason stated below. A no cause LOD should be issued pursuant to the instructions in § 607.5(a)(4) of Volume II of the Compliance Manual.

[USE DISTRICT OFFICE LETTERHEAD]

Charge No. 000-00-0000

[Name of Charging Party]

[City, State, and Zip Code] Charging Party

[City, State, and Zip Code] Respondent

Under the authority vested in me by the Commission's Procedural Regulations, I issue on behalf of the Commission, the following determination as to the merits of the subject charge.

Respondent is an employer within the meaning of Title VII and the timeliness, deferral, and all other jurisdictional requirements have been met.

Having examined the record presented, I find that Respondent's action was taken pursuant to and in accordance with an affirmative action plan or program that conforms to the requirements of the Commission's Affirmative Action Guidelines, 29 C.F.R. 1608. I therefore conclude that there is not reasonable cause to believe that the charge is true.

This determination concludes the Commission's processing of the subject charge. Should the charging party wish to pursue this matter further, he may do so by filing a private action in Federal District Court within 90 days of his receipt of this letter and by taking the other procedural steps set out in the enclosed NOTICE OF RIGHT TO SUE.

This determination is a written interpretation or opinion of the Commission pursuant to § 713(b)(1) of Title VII and may be relied upon by Respondent and asserted as a defense in the event that new charges involving similar facts and circumstances are filed against Respondent.

On behalf of the Commission:

Date [District Director]

Notice of Right to Sue

(PLAN OR PROGRAM THAT CONFORMS TO GUIDELINES)

TO: _________________________, Director

Pt. Barrow District Office

FROM: Office of Legal Counsel

Legal Services Division

SUBJECT: Request for § 713(b)(1) Opinion Letter-Affirmative Action Plan Conforming to Guidelines - Charge: _______________ v. _______________

Respondent has requested a § 713(b)(1) letter of opinion. The Investigator's Memo and recommended LOD you submitted to Headquarters on [date] find no cause and would extend the 713(b)(1) defense.

____ The Commission has approved the recommended disposition end the Office of Legal Counsel has signed the recommended LOD. It is returned for further processing.

____ The Commission has not approved the recommended disposition and the Office of Legal Counsel has not signed the recommended LOD for the reason(s) stated below. A no cause LOD should be issued pursuant to the instructions in §§ 607.5(b)(3) and (a)(4) of Volume II of the Compliance Manual.

OFCCP's REGIONAL OFFICES (2/1/85 )

REGION I - BOSTON

(Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont)

Assistant Regional Administrator

U.S. Department of Labor

JFK Building - Room 1612-C

Boston, Massachusetts 02203

(617) 223-4232 - FTS 223-4232

REGION II - NEW YORK

(New Jersey, New York, Puerto Rico, Virgin Islands)

Assistant Regional Administrator

U.S. Department of Labor

515 Broadway - Room 3308

New York, New York 10036

(212) 944-3402 - FTS 662-3402

REGION III - PHILADELPHIA

(Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia)

Assistant Regional Administrator.

U.S. Department of Labor

Gateway Building - 1310

3535 Market Street

Philadelphia, Pennsylvania 19104

(215) 596-6168 - FTS 596-6168

REGION IV - ATLANTA

(Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee)

Assistant Regional Administrator

U.S. Department of Labor

1371 Peachtree St., N.E., Room 111

Atlanta, Georgia 30309

(404) 881-4221 - FTS 257-4211

REGION V - CHICAGO

(Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin)

Assistant Regional Administrator

U.S. Department of Labor

230 South Dearborn Street

Chicago, Illinois 60605

(312) 353-0335 - FTS 353-0335

REGION VI - DALLAS

(Arkansas, Louisiana, New Mexico, Oklahoma, Texas)

Assistant Regional Administrator

U.S. Department of Labor

555 Griffin Square Bldg. - Room 505

Dallas, Texas 75202

(214) 767-4771 - FTS 729-4771

REGION VII - KANSAS CITY

(Iowa, Kansas, Missouri, Nebraska)

Assistant Regional Administrator

U.S. Department of Labor

11 Walnut Street

Kansas City, Missouri 64106

(816) 374-5384 - FTS 758-5384

REGION VIII - DENVER

(Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming)

Assistant Regional Administrator

U.S. Department of Labor

1412 Federal Office Building

1961 Stout Street

Denver, Colorado 80294

(303) 837-5011 - FTS 327-5011

REGION IX - SAN FRANCISCO

(Arizona, California, Guam, Hawaii, Nevada)

Assistant Regional Administrator

U.S. Department of Labor

450 Golden Gate Avenue - Room 11435

San Francisco, California 94102

(415) 556-6060 - FTS 556-6060

REGION X - SEATTLE

(Alaska, Idaho, Oregon, Washington)

Assistant Regional Administrator

U.S. Department of Labor

Federal Office Building

909 First Avenue - Room 3088

Seattle, Washington 98174

(206) 442-4508 - FTS 399-4508

[USE DISTRICT OFFICE LETTERHEAD]

Charge No. 000-00-0000

[Name of Charging Party]

[City, State, and Zip Code] Charging Party

[City, State, and Zip Code] Respondent

Under the authority vested in me by the Commission's Procedural Regulations, I issue on behalf of the Commission, the following determination as to the merits of the subject charge.

Respondent is an employer within the meaning of Title VII and the timeliness, deferral, and all other jurisdictional requirements have been met.

Having examined the record presented, I find that Respondent's action was taken pursuant to and in accordance with an affirmative action plan or program meeting the requirements of the Commission's Affirmative Action Guidelines, 29 C.F.R. 1608. I therefore conclude that there is not reasonable cause to believe that the charge is true.

This determination concludes the Commission's processing of the subject charge. Should the charging party wish to pursue this matter further, he may do so by filing a private action in Federal District Court within 90 days of his receipt of this letter and by taking the other procedural steps set out in the enclosed NOTICE OF RIGHT TO SUE.

On behalf of the Commission:

Date [District Director]

Notice of Right to Sue

[1] Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as amended, 44 Fed.Reg. 4422 (January 19, 1979), 29 C.F.R. § 1608.

[2] In McDonald, two white employees were discharged for misappropriating cargo from one of the company's shipments, while a Black employee charged with the same offense was not. The Supreme Court clearly stated that no issue of affirmative action was involved. McDonald was a disparate treatment case and was not intended to be used as precedent in deciding the appropriateness of voluntary affirmative action programs.

[3] For the Commission's position on whether state or local government employers can undertake affirmative action without some sort of administrative, legislative, or judicial finding of past discrimination, see § 607.11(a)(2).