The Catholic University of America

Summary of Federal Laws

Employment

Equal Employment Opportunity

Compliance Partners

EO Officer

Associate VP for HR

Director of Institutional Research and Assessment

Related Policies

Equal Opportunity

Discrimination Complaint

Executive Order 11246 as amended by 11375

Cites: The provisions of Executive Order Number 11246 (Sept. 24, 1965) appear at 30 Fed. Reg. 12,319, and are set out as a note in 42 U.S.C. § 2000e. Executive Order Number 11,246 prohibits employment discrimination on the basis of race, color, religion or national origin. Executive Order Number 11,246 was amended by Executive Order Number 11375 on October 13, 1967 (32 Fed. Reg. 14,303), effective October 1968, to include gender as a protected class. The order was further amended on July 21, 2014 to substitute "sex, sexual orientation, gender identity, or national origin" for "sex, or national origin".

7-21-14 Amendment to EO 11246

The 7-21-14 order (adding sexual orientation and gender identity) is effective April 8, 2015 and applies to federal contractors and subcontractors who hold contracts entered into or modified on or after the above date.  See 79 Fed. Reg. 72985, Dec. 9, 2014, Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors.

Fact Sheet on 7-21-14 EO Amendment

See 41 C.F.R. § 60-1.1, 41 C.F.R. Part 60-2.1 et seq. 

The Law: Prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity or national origin. Governs any entity with government contracts that total $10,000 or more in a 12-month period.

Actions Necessary:

  • Written affirmative action program. If federal contracts worth $50,000 or more, and the institution has 50 or more employees, the institution must prepare a written affirmative action program. See 41 C.F.R. § 60-1.7. The contents of the plan must include a workforce analysis including progression charts, seniority rosters, applicant flow data and applicant rejection ratios.
  • Compliance review. Contracts greater than $1 million require a compliance review, including an onsite inspection of records. Initial and annual compliance reports required.
  • Program summary.The affirmative action program must be summarized and updated annually.
  • Produce report. The Fall staff survey of the Integrated Postsecondary Education Data System (Form IPEDS) (in place of the EEO-6 Higher Education Staff Information Report) must be produced biennially. See 29 C.F.R. § 1602.47-49. Required to keep any personnel or employment record for a period of not less than two years from the date of the making of the record or the personnel action, whichever occurs later (150 employees and a government contract of at least $150,000).
  • Recordkeeping. Title VII and the Americans with Disabilities Act of 1990 require a three-year retention period for the records which must be kept to file the Fall staff survey of the IPEDS report. (Regulations still refer to higher education staff information report, Form EEO-6, but this has not been used for a while.) The final rule, 62 Fed. Reg. 44,174 (Aug. 17, 1997), sets forth a two-year record retention requirement for any personnel or employment record made or kept by a contractor. This applies to records made or kept on or after September 18, 1997. See 41 C.F.R. § 60-1.12.
    Posted notice. The specific language for the notice that must be posted can be found at 41 C.F.R. § 60-1.42.
  • Special affirmative action required. An employer must take affirmative action to recruit women for jobs where they have been previously excluded, and to admit women to company management training programs. See 41 C.F.R. § 60-20.6.
  • Access to records. Records must be made available for compliance evaluations. See 41 C.F.R. § 60-1.43.
  • Contract clause. The text of the clause that must be inserted in contracts can be found at 48 C.F.R. § 52.222-26.

     

Notice of Final Rescission: Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance With Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination, 78 Fed. Reg. 13508, Effective date of issuance, Feb. 28, 2013

The Office of Federal Contract Compliance Programs (OFCCP) is publishing a final notice rescinding two guidance documents: The Interpreting Nondiscrimination Requirements of Executive Order 11246
with respect to Systemic Compensation Discrimination and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with respect to Systemic Compensation
Discrimination. Rescinding these prior guidance documents will improve OFCCP's ability to enforce the Executive Order's ban on pay discrimination. See the OFCCP Fact Sheet on the recission. This action allows the OFFCP to focus more broadly on all aspects of potential discrimination in compensation. See also Directive 307, Procedures for Reviewing Contractor Compensation Systems and Practices.

Pay Transparency Final Rule Implementing  Executive Order 13665, 80 Fed. Reg. 54934, Sept. 11, 2015: The Pay Transparency Executive Order amends EO 11246 and the EO Clause to prohibit policies and practices which prevent applicants and employees from freely discussing their pay. It is applicable to employers with federal contracts or subcontracts over $10,000 entered into or modified after Jan. 11, 2016.The rule allows job applicants and employees of federal contractors and subcontractors to file a discrimination complaint with OFCCP if they believe that their employer fired or otherwise discriminated against them for discussing, inquiring about, or disclosing their own compensation or that of others.

The rule does not require disclosure by the Employer to employees about pay of their co-workers, but it does prohibit retaliation against employees who ask, discuss or disclose compensation of an employee or applicant. A Pay Transparency Policy Statement must be included in employee handbooks and given to employees or posted where employees can see it. The EEO is the law Poster will be updated. See Jackson Lewis Sept. 18, 2015 Affirmative Action and OFCCP Law Advisor article by Laura Mitchell. The idea of transparency is to decrease the pay gap between men and women. Employees who have access to pay information as part of the essential function of their job are still bound to keep it confidential, and cannot disclose. See also the 9-10-15 DOL News Release on the final rule.

There is also a  DC law that tracks this federal rule, but is applicable across the board, i.e. is not dependent upon federal contractor status.  See the DC Wage Transparency Act of 2014, and the Jackson Lewis Article titled DC Passes Legislation Allowing Employees to Discuss Wages

 Resources

 The Littler Report: A guide to Determining Covered Federal Government Contractor Status July 2015

NACUANOTE: OFCCP "Internet Applicant" Data Collection and Recordkeeping Rule Feb. 6, 2007

 

 

 

 

updated 9-14-17-added link to DC Wage Transparency Act