50 for 50: Five Decades of the Most Important Discrimination Law Developments
Number 15: Affirmative Action For Federal Contractors And Subcontractors
Within months of signing Title VII into law, President Lyndon B. Johnson signed Executive Order 11246 on September 24, 1965, establishing requirements for ensuring non-discriminatory practices on four grounds (race, color, religion and national origin) and requiring federal contractors to take affirmative action to promote equal opportunity in hiring and employment. Executive Order 11246 is notable for several reasons. First, it was hardly the federal government’s first efforts at eliminating employment discrimination (which would be President Franklin D. Roosevelt’s Executive Order 8802 in 1941) or promoting affirmative action in the workplace (President John F. Kennedy’s Executive Order 10925 in 1961). Second, part of Executive Order 11246’s broad impact stems from then-Vice President Hubert Humphrey’s recommendation to centralize responsibility for administering the federal government’s non-discrimination and affirmative action provisions within the Secretary of Labor, whereas prior federal efforts were administered by interagency committees. Third, Executive Order 11246 originally did not prohibit employment discrimination or require affirmative action efforts on the basis of sex; it would take continued efforts from a resurgent women’s rights movement before President Johnson issued Executive Order 11375 in October 1967 revising Executive Order 11246 to include sex discrimination.
Nearly fifty years later, it is hard not to see Executive Order 11246’s broad impact where one-fifth of the entire U.S. labor force is employed by federal contractors and subcontractors. Moreover, at a time when the role of affirmative action in institutions of higher education appears to be under continued and heightened scrutiny, Executive Order 11246’s continuing relevance can also be measured by the fact that in general, all federal contractors and subcontractors with more than 50 persons and contracts of more than $50,000 must develop and maintain written affirmative action programs (AAPs) to increase the participation of women and minorities in the workplace if there are fewer minorities and women than would be expected given the numbers of minorities and women qualified to hold the positions available. AAPs plans must consist of an equal opportunity policy statement, an analysis of the current work force, the establishment of goals and timetables for increasing employment opportunities, the identification of problem areas, specific action-oriented programs to address problem areas, the establishment of an internal audit and reporting system, and support for community action programs.