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pdfSOURCE: 43 FR 49240, Oct. 20, 1978, unless
otherwise noted.
PART
60–1—OBLIGATIONS
OF
CONTRACTORS
AND
SUBCONTRACTORS
Subpart A—Preliminary
Equal Opportunity
Compliance Reports
Subpart A—Preliminary Matters; Equal
Opportunity Clause; Compliance Reports
Sec.
60–1.1 Purpose and application.
60–1.2 Administrative responsibility.
60–1.3 Definitions.
60–1.4 Equal opportunity clause.
60–1.5 Exemptions.
60–1.6 [Reserved]
60–1.7 Reports and other required information.
60–1.8 Segregated facilities.
60–1.9 Compliance by labor unions and by
recruiting and training agencies.
60–1.10 Foreign government practices.
60–1.11 Payment or reimbursement of membership fees and other expenses to private clubs.
60–1.12 Record retention.
§ 60–1.1
Matters;
Clause;
Purpose and application.
The purpose of the regulations in this
part is to achieve the aims of parts II,
III, and IV of Executive Order 11246 for
the promotion and insuring of equal
opportunity for all persons, without regard to race, color, religion, sex, or national origin, employed or seeking employment with Government contractors or with contractors performing
under federally assisted construction
contracts. The regulations in this part
apply to all contracting agencies of the
Government and to contractors and
subcontractors who perform under
Government contracts, to the extent
set forth in this part. The regulations
in this part also apply to all agencies
of the Government administering programs involving Federal financial assistance which may include a construction contract, and to all contractors
and subcontractors performing under
construction contracts which are related to any such programs. The procedures set forth in the regulations in
this part govern all disputes relative to
a contractor’s compliance with his obligations under the equal opportunity
clause regardless of whether or not his
contract contains a ‘‘Disputes’’ clause.
Failure of a contractor or applicant to
comply with any provision of the regulations in this part shall be grounds for
the imposition of any or all of the
sanctions authorized by the order. The
regulations in this part do not apply to
any action taken to effect compliance
with respect to employment practices
subject to title VI of the Civil Rights
Act of 1964. The rights and remedies of
the Government hereunder are not exclusive and do not affect rights and
remedies provided elsewhere by law,
regulation, or contract; neither do the
regulations limit the exercise by the
Secretary or Government agencies of
powers not herein specifically set
forth, but granted to them by the
order.
Subpart B—General Enforcement; Compliance Review and Complaint Procedure
60–1.20 Compliance evaluations.
60–1.21 Filing complaints.
60–1.22 Where to file.
60–1.23 Contents of complaint.
60–1.24 Processing of matters.
60–1.25 Assumption of jurisdiction by or referrals to the Deputy Assistant Secretary.
60–1.26 Enforcement proceedings.
60–1.27 Sanctions.
60–1.28 Show cause notices.
60–1.29 Preaward notices.
60–1.30 Notification of agencies.
60–1.31 Reinstatement of ineligible contractors.
60–1.32 Intimidation and interference.
60–1.33 Conciliation agreements.
60–1.34 Violation of a conciliation agreement or letter of commitment.
Subpart C—Ancillary Matters
60–1.40 Affirmative action programs.
60–1.41 Solicitations or advertisements for
employees.
60–1.42 Notices to be posted.
60–1.43 Access to records and site of employment.
60–1.44 Rulings and interpretations.
60–1.45 Existing contracts and subcontracts.
60–1.46 Delegation of authority by the Deputy Assistant Secretary.
60–1.47 Effective date.
AUTHORITY: Sec. 201, E.O. 11246 (30 FR
12319), as amended by E.O. 11375 (32 FR 14303)
and E.O. 12086 (43 FR 46501).
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§ 60–1.2
§ 60–1.2
41 CFR Ch. 60 (7–1–02 Edition)
site functions incidental to the actual
construction.
Contract means any Government contract or subcontract or any federally
assisted construction contract or subcontract.
Contracting agency means any department, agency, establishment, or instrumentality in the executive branch of
the Government, including any wholly
owned Government corporation, which
enters into contracts.
Contractor means, unless otherwise
indicated, a prime contractor or subcontractor.
Deputy Assistant Secretary means the
Deputy Assistant Secretary for Federal
Contract Compliance, United States
Department of Labor, or his or her designee.
Equal opportunity clause means the
contract provisions set forth in § 60–1.4
(a) or (b), as appropriate.
Federally assisted construction contract
means any agreement or modification
thereof between any applicant and a
person for construction work which is
paid for in whole or in part with funds
obtained from the Government or borrowed on the credit of the Government
pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application
or modification thereof approved by
the Government for a grant, contract,
loan, insurance, or guarantee under
which the applicant itself participates
in the construction work.
Government means the government of
the United States of America.
Government contract means any agreement or modification thereof between
any contracting agency and any person
for the purchase, sale or use of personal
property or nonpersonal services. The
term ‘‘personal property,’’ as used in
this section, includes supplies, and contracts for the use of real property (such
as lease arrangements), unless the contract for the use of real property itself
constitutes real property (such as easements). The term ‘‘nonpersonal services’’ as used in this section includes,
but is not limited to, the following
services: Utilities, construction, transportation, research, insurance, and
Administrative responsibility.
The Deputy Assistant Secretary has
been delegated authority and assigned
responsibility for carrying out the responsibilities assigned to the Secretary
under the Executive order. All correspondence regarding the order should
be directed to the Deputy Assistant
Secretary, Office of Federal Contract
Compliance Programs, Employment
Standards Administration, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.3
Definitions.
Administering agency means any department, agency and establishment in
the executive branch of the Government, including any wholly owned Government corporation, which administers a program involving federally assisted construction contracts.
Administrative law judge means an administrative law judge appointed as
provided in 5 U.S.C. 3105 and Subpart B
of Part 930 of Title 5 of the Code of Federal Regulations (see 37 FR 16787) and
qualified to preside at hearings under 5
U.S.C. 557.
Agency means any contracting or any
administering agency of the Government.
Applicant means an applicant for Federal assistance involving a construction contract, or other participant in a
program involving a construction contract as determined by regulation of an
administering agency. The term also
includes such persons after they become recipients of such Federal assistance.
Compliance evaluation means any one
or combination of actions OFCCP may
take to examine a Federal contractor
or subcontractor’s compliance with one
or more of the requirements of Executive Order 11246.
Construction work means the construction, rehabilitation, alteration,
conversion, extension, demolition or
repair of buildings, highways, or other
changes or improvements to real property, including facilities providing utility services. The term also includes the
supervision, inspection, and other on-
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Office of Federal Contract Compliance Programs
fund depository. The term Government
contract does not include:
(1) Agreements in which the parties
stand in the relationship of employer
and employee; and
(2) Federally assisted construction
contracts.
Minority group as used herein shall
include, where appropriate, female employees and prospective female employees.
Modification means any alteration in
the terms and conditions of a contract,
including supplemental agreements,
amendments, and extensions.
Order, Executive order, or Executive
Order 11246 means parts II, III, and IV
of the Executive Order 11246 dated September 24, 1965 (30 FR 12319), any Executive order amending such order, and
any other Executive order superseding
such order.
Person means any natural person,
corporation,
partnership,
unincorporated association, State or local government, and any agency, instrumentality, or subdivision of such a government.
Prime contractor means any person
holding a contract and, for the purposes of Subpart B of this part, any
person who has held a contract subject
to the order.
Recruiting and training agency means
any person who refers workers to any
contractor or subcontractor or who
provides for employment by any contractor or subcontractor.
Rules, regulations, and relevant orders
of the Secretary of Labor used in paragraph (4) of the equal opportunity
clause means rules, regulations, and
relevant orders of the Secretary of
Labor or his designee issued pursuant
to the order.
Secretary means the Secretary of
Labor, U.S. Department of Labor, or
his or her designee.
Site of construction means the general
physical location of any building, highway, or other change or improvement
to real property which is undergoing
construction,
rehabilitation,
alteration, conversion, extension, demolition, or repair and any temporary location or facility at which a contractor,
subcontractor, or other participating
party meets a demand or performs a
§ 60–1.4
function relating to the contract or
subcontract.
Subcontract means any agreement or
arrangement between a contractor and
any person (in which the parties do not
stand in the relationship of an employer and an employee):
(1) For the purchase, sale or use of
personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one
or more contracts; or
(2) Under which any portion of the
contractor’s obligation under any one
or more contracts is performed, undertaken or assumed.
Subcontractor means any person holding a subcontract and, for the purposes
of Subpart B of this part, any person
who has held a subcontract subject to
the order. The term ‘‘first-tier subcontractor’’ refers to a subcontractor holding a subcontract with a prime contractor.
United States as used herein shall include the several States, the District of
Columbia, the Commonwealth of Puerto Rico, the Panama Canal Zone, and
the possessions of the United States.
United States, as used herein, shall include the several States, the District of
Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam,
American Samoa, the Commonwealth
of the Northern Mariana Islands, and
Wake Island.
[43 FR 49240, Oct. 20, 1978, as amended at 61
FR 19988, May 3, 1996; 62 FR 44188, Aug. 19,
1997; 62 FR 66971, Dec. 22, 1997]
§ 60–1.4 Equal opportunity clause.
(a) Government contracts. Except as
otherwise provided, each contracting
agency shall include the following
equal opportunity clause contained in
section 202 of the order in each of its
Government contracts (and modifications thereof if not included in the
original contract):
During the performance of this contract,
the contractor agrees as follows:
(1) The contractor will not discriminate
against any employee or applicant for employment because of race, color, religion,
sex, or national origin. The contractor will
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard
to their race, color, religion, sex, or national
origin. Such action shall include, but not be
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§ 60–1.4
41 CFR Ch. 60 (7–1–02 Edition)
limited to the following: Employment, upgrading, demotion, or transfer, recruitment
or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to
post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations
or advertisements for employees placed by or
on behalf of the contractor, state that all
qualified applicants will receive consideration for employment without regard to
race, color, religion, sex, or national origin.
(3) The contractor will send to each labor
union or representative of workers with
which he has a collective bargaining agreement or other contract or understanding, a
notice to be provided by the agency contracting officer, advising the labor union or
workers’ representative of the contractor’s
commitments under section 202 of Executive
Order 11246 of September 24, 1965, and shall
post copies of the notice in conspicuous
places available to employees and applicants
for employment.
(4) The contractor will comply with all
provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations,
and relevant orders of the Secretary of
Labor.
(5) The contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by the rules,
regulations, and orders of the Secretary of
Labor, or pursuant thereto, and will permit
access to his books, records, and accounts by
the contracting agency and the Secretary of
Labor for purposes of investigation to ascertain compliance with such rules, regulations,
and orders.
(6) In the event of the contractor’s noncompliance with the nondiscrimination
clauses of this contract or with any of such
rules, regulations, or orders, this contract
may be canceled, terminated or suspended in
whole or in part and the contractor may be
declared ineligible for further Government
contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions
may be imposed and remedies invoked as
provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by law.
(7) the contractor will include the provisions of paragraphs (1) through (7) in every
subcontract or purchase order unless exempted by rules, regulations, or orders of the
Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will
be binding upon each subcontractor or ven-
dor. The contractor will take such action
with respect to any subcontract or purchase
order as may be directed by the Secretary of
Labor as a means of enforcing such provisions including sanctions for noncompliance:
Provided, however, that in the event the contractor becomes involved in, or is threatened
with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to
enter into such litigation to protect the interests of the United States.
(b) Federally assisted construction contracts. (1) Except as otherwise provided,
each administering agency shall require the inclusion of the following
language as a condition of any grant,
contract, loan, insurance, or guarantee
involving federally assisted construction which is not exempt from the requirements of the equal opportunity
clause:
The applicant hereby agrees that it will incorporate or cause to be incorporated into
any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR
Chapter 60, which is paid for in whole or in
part with funds obtained from the Federal
Government or borrowed on the credit of the
Federal Government pursuant to a grant,
contract, loan insurance, or guarantee, or
undertaken pursuant to any Federal program involving such grant, contract, loan,
insurance, or guarantee, the following equal
opportunity clause:
During the performance of this contract,
the contractor agrees as follows:
(1) The contractor will not discriminate
against any employee or applicant for employment because of race, color, religion,
sex, or national origin. The contractor will
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment without regard
to their race, color, religion, sex, or national
origin. such action shall include, but not be
limited to the following: Employment, upgrading, demotion, or transfer; recruitment
or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to
post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations
or advertisements for employees placed by or
on behalf of the contractor, state that all
qualified applicants will receive considerations for employment without regard to
race, color, religion, sex, or national origin.
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Office of Federal Contract Compliance Programs
(3) The contractor will send to each labor
union or representative of workers with
which he has a collective bargaining agreement or other contract or understanding, a
notice to be provided advising the said labor
union or workers’ representatives of the contractor’s commitments under this section,
and shall post copies of the notice in conspicuous places available to employees and
applicants for employment.
(4) The contrator will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations,
and relevant orders of the Secretary of
Labor.
(5) The contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of
Labor, or pursuant thereto, and will permit
access to his books, records, and accounts by
the administering agency and the Secretary
of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor’s noncompliance with the nondiscrimination
clauses of this contract or with any of the
said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further
Government contracts or federally assisted
construction contracts in accordance with
procedures authorized in Executive Order
11246 of September 24, 1965, and such other
sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of
September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the portion
of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1)
through (7) in every subcontract or purchase
order unless exempted by rules, regulations,
or orders of the Secretary of Labor issued
pursuant to section 204 of Executive Order
11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take
such action with respect to any subcontract
or purchase order as the administering agency may direct as a means of enforcing such
provisions, including sanctions for noncompliance: Provided, however, That in the
event a contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the contractor may request the United States to
enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be
bound by the above equal opportunity clause
with respect to its own employment practices when it participates in federally as-
§ 60–1.4
sisted construction work: Provided, That if
the applicant so participating is a State or
local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such
government which does not participate in
work on or under the contract.
The applicant agrees that it will assist and
cooperate actively with the administering
agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity
clause and the rules, regulations, and relevant orders of the Secretary of Labor, that
it will furnish the administering agency and
the Secretary of Labor such information as
they may require for the supervision of such
compliance, and that it will otherwise assist
the administering agency in the discharge of
the agency’s primary responsibility for securing compliance.
The applicant further agrees that it will
refrain from entering into any contract or
contract modification subject to Executive
Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction
contracts pursuant to the Executive order
and will carry out such sanctions and penalties for violation of the equal opportunity
clause as may be imposed upon contractors
and subcontractors by the administering
agency or the Secretary of Labor pursuant
to Part II, Subpart D of the Executive order.
In addition, the applicant agrees that if it
fails or refuses to comply with these undertakings, the administering agency may take
any or all of the following actions: Cancel,
terminate, or suspend in whole or in part
this grant (contract, loan, insurance, guarantee); refrain from extending any further
assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of
future compliance has been received from
such applicant; and refer the case to the Department of Justice for appropriate legal
proceedings.
(c) Subcontracts. Each nonexempt
prime contractor or subcontractor
shall include the equal opportunity
clause in each of its nonexempt subcontracts.
(d) Incorporation by reference. The
equal opportunity clause may be incorporated by reference in all Government
contracts and subcontracts, including
Government bills of lading, transportation requests, contracts for deposit
of Government funds, and contracts for
issuing and paying U.S. savings bonds
and notes, and such other contracts
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§ 60–1.5
41 CFR Ch. 60 (7–1–02 Edition)
quantities (including, but not limited
to, open end contracts, requirementtype contracts, Federal Supply Schedule contracts, ‘‘call-type’’ contracts,
and purchase notice agreements), the
equal opportunity clause shall be included unless the purchaser has reason
to believe that the amount to be ordered in any year under such contract
will not exceed $10,000. The applicability of the equal opportunity clause
shall be determined by the purchaser
at the time of award for the first year,
and annually thereafter for succeeding
years, if any. Notwithstanding the
above, the equal opportunity clause
shall be applied to such contract whenever the amount of a single order exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract shall continue to be
subject to such clause for its duration,
regardless of the amounts ordered, or
reasonably expected to be ordered in
any year.
(3) Work outside the United States.
Contracts and subcontracts are exempt
from the requirements of the equal opportunity clause with regard to work
performed outside the United States by
employees who were not recruited
within the United States.
(4) Contracts with State or local governments. The requirements of the equal
opportunity clause in any contract or
subcontract with a State or local government (or any agency, instrumentality or subdivision thereof) shall not
be applicable to any agency, instrumentality or subdivision of such government which does not participate in
work on or under the contract or subcontract. In addition, any agency, instrumentality or subdivision of such
government, except for educational institutions and medical facilities, are
exempt from the requirements of filing
the annual compliance report provided
for by § 60–1.7(a)(1) and maintaining a
written affirmative action compliance
program prescribed by § 60–1.40 and
Part 60–2 of this chapter.
(5) Contracts with certain educational
institutions. It shall not be a violation
of the equal opportunity clause for a
school, college, university, or other
educational institution or institution
of learning to hire and employ employees of a particular religion if such
and subcontracts as the Deputy Assistant Secretary may designate.
(e) Incorporation by operation of the
order. By operation of the order, the
equal opportunity clause shall be considered to be a part of every contract
and subcontract required by the order
and the regulations in this part to include such a clause whether or not it is
physically incorporated in such contracts and whether or not the contract
between the agency and the contractor
is written.
(f) Adaptation of language. Such necessary changes in language may be
made in the equal opportunity clause
as shall be appropriate to identify
properly the parties and their undertakings.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.5 Exemptions.
(a) General—(1) Transactions of $10,000
or under. Contracts and subcontracts
not exceeding $10,000, other than Government bills of lading, and other than
contracts and subcontracts with depositories of Federal funds in any
amount and with financial institutions
which are issuing and paying agents for
U.S. savings bonds and savings notes,
are exempt from the requirements of
the equal opportunity clause. In determining the applicability of this exemption to any federally assisted construction contract, or subcontract thereunder, the amount of such contract or
subcontract rather than the amount of
the Federal financial assistance shall
govern. No agency, contractor, or subcontractor shall procure supplies or
services in a manner so as to avoid applicability of the equal opportunity
clause: Provided, that where a contractor has contracts or subcontracts
with the Government in any 12-month
period which have an aggregate total
value (or can reasonably be expected to
have an aggregate total value) exceeding $10,000, the $10,000 or under exemption does not apply, and the contracts
are subject to the order and the regulations issued pursuant thereto regardless of whether any single contract exceeds $10,000.
(2) Contracts and subcontracts for indefinite quantities. With respect to contracts and subcontracts for indefinite
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Office of Federal Contract Compliance Programs
school, college, university, or other
educational institution or institution
of learning is, in whole or in substantial part, owned, supported, controlled,
or managed by a particular religion or
by a particular religious corporation,
association, or society, or if the curriculum of such school, college, university, or other educational institution
or institution of learning is directed
toward the propagation of a particular
religion. The primary thrust of this
provision is directed at religiously oriented church-related colleges and universities and should be so interpreted.
(6) Work on or near Indian reservations.
It shall not be a violation of the equal
opportunity clause for a construction
or nonconstruction contractor to extend a publicly announced preference
in employment to Indians living on or
near an Indian reservation in connection with employment opportunities on
or near an Indian reservation. The use
of the word ‘‘near’’ would include all
that area where a person seeking employment could reasonably be expected
to commute to and from in the course
of a work day. Contractors or subcontractors extending such a preference shall not, however, discriminate
among Indians on the basis of religion,
sex, or tribal affiliation, and the use of
such a preference shall not excuse a
contractor from complying with the
other requirements contained in this
chapter.
(b) Specific contracts and facilities—(1)
Specific contracts. The Deputy Assistant
Secretary may exempt an agency or
any person from requiring the inclusion of any or all of the equal opportunity clause in any specific contract
or subcontract when he deems that special circumstances in the national interest so require. The Deputy Assistant
Secretary may also exempt groups or
categories of contracts or subcontracts
of the same type where he finds it impracticable to act upon each request
individually or where group exemptions will contribute to convenience in
the administration of the order.
(2) Facilities not connected with contracts. The Deputy Assistant Secretary
may exempt from the requirements of
the equal opportunity clause any of a
prime contractor’s or subcontractor’s
facilities which he finds to be in all re-
§ 60–1.7
spects separate and distinct from activities of the prime contractor or subcontractor related to the performance
of the contract or subcontract, provided that he also finds that such an
exemption will not interfere with or
impede the effectuation of the order.
(c) National security. Any requirement
set forth in these regulations in this
part shall not apply to any contract or
subcontract whenever the head of an
agency determines that such contract
or subcontract is essential to the national security and that its award
without complying with such requirement is necessary to the national security. Upon making such a determination, the head of the agency will notify
the Deputy Assistant Secretary in
writing within 30 days.
(d) Withdrawal of exemption. When
any contract or subcontract is of a
class exempted under this section, the
Deputy Assistant Secretary may withdraw the exemption for a specific contract or subcontract or group of contracts or subcontracts when in his
judgment such action is necessary or
appropriate to achieve the purposes of
the order. Such withdrawal shall not
apply to contracts or subcontracts
awarded prior to the withdrawal, except that in procurements entered into
by formal advertising, or the various
forms of restricted formal advertising,
such withdrawal shall not apply unless
the withdrawal is made more than 10
calendar days before the date set for
the opening of the bids.
[43 FR 49240, Oct. 20, 1978; 43 FR 51400, Nov. 3,
1978, as amended at 62 FR 66971, Dec. 22, 1997]
§ 60–1.6
[Reserved]
§ 60–1.7 Reports and other required information.
(a) Requirements for prime contractors
and subcontractors. (1) Each prime contractor and subcontractor shall file annually, on or before the September 30,
complete and accurate reports on
Standard Form 100 (EEO–1) promulgated jointly by the Office of Federal
Contract Compliance Programs, the
Equal Employment Opportunity Commission and Plans for Progress or such
form as may hereafter be promulgated
in its place if such prime contractor or
subcontractor (i) is not exempt from
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§ 60–1.8
41 CFR Ch. 60 (7–1–02 Edition)
the provisions of these regulations in
accordance with § 60–1.5; (ii) has 50 or
more employees; (iii) is a prime contractor or first tier subcontractor; and
(iv) has a contract, subcontract or purchase order amounting to $50,000 or
more or serves as a depository of Government funds in any amount, or is a
financial institution which is an
issuing and paying agent for U.S. savings bonds and savings notes: Provided,
That any subcontractor below the first
tier which performs construction work
at the site of construction shall be required to file such a report if it meets
requirements of paragraphs (a)(1) (i),
(ii), and (iv) of this section.
(2) Each person required by § 60–
1.7(a)(1) to submit reports shall file
such a report with the contracting or
administering agency within 30 days
after the award to him of a contract or
subcontract, unless such person has
submitted such a report within 12
months preceding the date of the
award. Subsequent reports shall be submitted annually in accordance with
§ 60–1.7(a)(1), or at such other intervals
as the Deputy Assistant Secretary may
require. The Deputy Assistant Secretary may extend the time for filing
any report.
(3) The Deputy Assistant Secretary
or the applicant, on their own motions,
may require a contractor to keep employment or other records and to furnish, in the form requested, within reasonable limits, such information as the
Deputy Assistant Secretary or the applicant deems necessary for the administration of the order.
(4) Failure to file timely, complete
and accurate reports as required constitutes noncompliance with the prime
contractor’s or subcontractor’s obligations under the equal opportunity
clause and is ground for the imposition
by the Deputy Assistant Secretary, an
applicant, prime contractor or subcontractor, of any sanctions as authorized
by the order and the regulations in this
part.
(b) Requirements for bidders or prospective contractors—(1) Certification of compliance with Part 60–2: Affirmative Action
Programs. Each agency shall require
each bidder or prospective prime contractor and proposed subcontractor,
where appropriate, to state in the bid
or in writing at the outset of negotiations for the contract: (i) Whether it
has developed and has on file at each
establishment affirmative action programs pursuant to Part 60–2 of this
chapter; (ii) whether it has participated in any previous contract or subcontract subject to the equal opportunity clause; (iii) whether it has filed
with the Joint Reporting Committee,
the Deputy Assistant Secretary or the
Equal Employment Opportunity Commission all reports due under the applicable filing requirements.
(2) Additional information. A bidder or
prospective prime contractor or proposed subcontractor shall be required
to submit such information as the Deputy Assistant Secretary requests prior
to the award of the contract or subcontract. When a determination has
been made to award the contract or
subcontract to a specific contractor,
such contractor shall be required, prior
to award, or after the award, or both,
to furnish such other information as
the applicant or the Deputy Assistant
Secretary requests.
(c) Use of reports. Reports filed pursuant to this section shall be used only in
connection with the administration of
the order, the Civil Rights Act of 1964,
or in furtherance of the purposes of the
order and said Act.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.8
Segregated facilities.
To comply with its obligations under
the Order, a contractor must ensure
that facilities provided for employees
are provided in such a manner that segregation on the basis of race, color, religion, sex or national origin cannot result. The contractor may neither require such segregated use by written or
oral policies nor tolerate such use by
employee custom. The contractor’s obligation extends further to ensuring
that its employees are not assigned to
perform their services at any location,
under the contractor’s control, where
the facilities are segregated. This obligation extends to all contracts containing the equal opportunity clause
regardless of the amount of the contract. The term ‘‘facilities,’’ as used in
this section, means waiting rooms,
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Office of Federal Contract Compliance Programs
§ 60–1.11
lieve that the practices of any such
labor organization or agency violates
title VII of the Civil Rights Act of 1964
or other provisions of Federal law.
work areas, restaurants and other eating areas, time clocks, restrooms, wash
rooms, locker rooms, and other storage
or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees; Provided,
That separate or single-user restrooms
and necessary dressing or sleeping
areas shall be provided to assure privacy between the sexes.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.10 Foreign
tices.
government
prac-
Contractors shall not discriminate on
the basis of race, color, religion, sex, or
national origin when hiring or making
employee assignments for work to be
performed in the United States or
abroad. Contractors are exempted from
this obligation only when hiring persons outside the United States for
work to be performed outside the
United States (see 41 CFR 60–1.5(a)(3)).
Therefore, a contractor hiring workers
in the United States for either Federal
or nonfederally connected work shall
be in violation of Executive Order
11246, as amended, by refusing to employ or assign any person because of
race, color, religion, sex, or national
origin regardless of the policies of the
country where the work is to be performed or for whom the work will be
performed. Should any contractor be
unable to acquire a visa of entry for
any employee or potential employee to
a country in which or with which it is
doing business, and which refusal it believes is due to the race, color, religion,
sex, or national origin of the employee
or potential employee, the contractor
must immediately notify the Department of State and the Deputy Assistant Secretary of such refusal.
[62 FR 44189, Aug. 19, 1997]
§ 60–1.9 Compliance by labor unions
and by recruiting and training
agencies.
(a) Whenever compliance with the
equal opportunity clause may necessitate a revision of a collective bargaining agreement the labor union or
unions which are parties to such an
agreement shall be given an adequate
opportunity to present their views to
the Deputy Assistant Secretary.
(b) The Deputy Assistant Secretary
shall use his best efforts, directly and
through agencies, contractors, subcontractors, applicants, State and local
officials, public and private agencies,
and all other available instrumentalities, to cause any labor union, recruiting and training agency or other representative of workers who are or may
be engaged in work under contracts
and subcontracts to cooperate with,
and to comply in the implementation
of, the purposes of the order.
(c) In order to effectuate the purposes
of paragraph (a) of this section, the
Deputy Assistant Secretary may hold
hearings, public or private, with respect to the practices and policies of
any such labor union or recruiting and
training agency.
(d) The Deputy Assistant Secretary
may notify any Federal, State, or local
agency of his conclusions and recommendations with respect to any
such labor organization or recruiting
and training agency which in his judgment has failed to cooperate with himself, agencies, prime contractors, subcontractors, or applicants in carrying
out the purposes of the order. The Deputy Assistant Secretary also may notify the Equal Employment Opportunity Commission, the Department of
Justice, or other appropriate Federal
agencies whenever he has reason to be-
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.11 Payment or reimbursement
of membership fees and other expenses to private clubs.
(a)(1) A contractor which maintains a
policy or practice of paying membership fees or other expenses for employee participation in private clubs or
organizations shall ensure that the policy or practice is administered without
regard to the race, color, religion, sex,
or national origin of employees.
(2) Payment or reimbursement by
contractors of membership fees and
other expenses for participation by
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§ 60–1.12
41 CFR Ch. 60 (7–1–02 Edition)
their employees in a private club or organization which bars, restricts or limits its membership on the basis of race,
color, sex, religion, or national origin
constitutes a violation of Executive
Order 11246 except where the contractor can provide evidence that such
restrictions or limitations do not
abridge the promotional opportunities,
status, compensation or other terms
and conditions of employment of those
of its employees barred from membership because of their race, color, religion, sex, or national origin. OFCCP
shall provide the contractor with the
opportunity to present evidence in defense of its actions.
(b) The contractor has the responsibility of determining whether the club
or organization restricts membership
on the basis of race, color, religion,
sex, or national origin. The contractor
may make separate determinations for
different chapters of an organization,
and where it does so, may limit any
necessary corrective action to the particular chapters which observe discriminatory membership policies and
practices.
[46 FR 3896, Jan. 16, 1981]
EFFECTIVE DATE NOTE: At 46 FR 3896, Jan.
16, 1981, § 60–1.11 was added. At 46 FR 18951,
Mar. 27, 1981, the effective date was deferred
until further notice.
§ 60–1.12 Record retention.
(a) General requirements. Any personnel or employment record made or
kept by the contractor shall be preserved by the contractor for a period of
not less than two years from the date
of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor
has fewer than 150 employees or does
not have a Government contract of at
least $150,000, the minimum record retention period shall be one year from
the date of the making of the record or
the personnel action involved, whichever occurs later. Such records include,
but are not necessarily limited to,
records pertaining to hiring, assignment, promotion, demotion, transfer,
lay off or termination, rates of pay or
other terms of compensation, and selection for training or apprenticeship,
and other records having to do with requests for reasonable accommodation,
the results of any physical examination, job advertisements and postings,
applications and resumes, tests and
test results, and interview notes. In the
case of involuntary termination of an
employee, the personnel records of the
individual terminated shall be kept for
a period of not less than two years
from the date of the termination, except that contractors that have fewer
than 150 employees or that do not have
a Government contract of at least
$150,000 shall keep such records for a
period of not less than one year from
the date of the termination. Where the
contractor has received notice that a
complaint of discrimination has been
filed, that a compliance evaluation has
been initiated, or that an enforcement
action has been commenced, the contractor shall preserve all personnel
records relevant to the complaint,
compliance evaluation or enforcement
action until final disposition of the
complaint, compliance evaluation or
enforcement action. The term ‘‘personnel records relevant to the complaint,’’ for example, would include
personnel or employment records relating to the complainant and to all other
employees holding positions similar to
that held or sought by the complainant
and application forms or test papers
submitted by unsuccessful applicants
and by all other candidates for the
same position as that for which the
complainant unsuccessfully applied.
Where a compliance evaluation has
been initiated, all personnel and employment records described above are
relevant until OFCCP makes a final
disposition of the evaluation.
(b) Affirmative action programs. A contractor establishment required under
§ 60–1.40 to develop and maintain a
written affirmative action program
(AAP) must maintain its current AAP
and documentation of good faith effort,
and must preserve its AAP and documentation of good faith effort for the
immediately preceding AAP year, unless it was not then covered by the
AAP requirement.
(c) Contractor identification of record.
(1) For any record the contractor maintains pursuant to this section, the contractor must be able to identify:
(i) The gender, race, and ethnicity of
each employee; and
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Office of Federal Contract Compliance Programs
(ii) where possible, the gender, race,
and ethnicity of each applicant.
(2) The contractor must supply this
information to the Office of Federal
Contract Compliance Programs upon
request.
(d) Failure to preserve records. Failure
to preserve complete and accurate
records as required by paragraphs (a)
through (c) of this section constitutes
noncompliance with the contractor’s
obligations under the Executive Order
and this part. Where the contractor has
destroyed or failed to preserve records
as required by this section, there may
be a presumption that the information
destroyed or not preserved would have
been unfavorable to the contractor:
Provided, That this presumption shall
not apply where the contractor shows
that the destruction or failure to preserve records results from the circumstances that are outside of the contractor’s control.
(e) Applicability. The requirements of
this section shall apply only to records
made or kept on or after December 22,
1997.
[65 FR 68042, Nov. 13, 2000]
Subpart B—General Enforcement;
Compliance
Review
and
Complaint Procedure
§ 60–1.20
Compliance evaluations.
(a) OFCCP may conduct compliance
evaluations to determine if the contractor maintains nondiscriminatory
hiring and employment practices and is
taking affirmative action to ensure
that applicants are employed and that
employees are placed, trained, upgraded, promoted, and otherwise treated during employment without regard
to race, color, religion, sex, or national
origin. A compliance evaluation may
consist of any one or any combination
of the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of the hiring and employment practices of the
contractor, the written affirmative action program, and the results of the affirmative action efforts undertaken by
the contractor. A compliance review
may proceed in three stages:
§ 60–1.20
(i) A desk audit of the written AAP
and supporting documentation to determine whether all elements required
by the regulations in this part are included, whether the AAP meets agency
standards
of
reasonableness,
and
whether the AAP and supporting documentation satisfy agency standards of
acceptability. The desk audit is conducted at OFCCP offices, except in the
case of preaward reviews. In a preaward
review, the desk audit normally is conducted at the contractor’s establishment.
(ii) An on-site review, conducted at
the contractor’s establishment to investigate unresolved problem areas
identified in the AAP and supporting
documentation during the desk audit,
to verify that the contractor has implemented the AAP and has complied
with those regulatory obligations not
required to be included in the AAP, and
to examine potential instances or
issues of discrimination. An on-site review normally will involve an examination of the contractor’s personnel and
employment policies, inspection and
copying of documents related to employment actions, and interviews with
employees, supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site
analysis of information supplied by the
contractor or otherwise gathered during or pursuant to the on-site review.
(2) Off-site review of records. An analysis and evaluation of the AAP (or any
part thereof) and supporting documentation, and other documents related to the contractor’s personnel
policies and employment actions that
may be relevant to a determination of
whether the contractor has complied
with the requirements of the Executive
Order and regulations;
(3) Compliance check. A visit to the establishment to ascertain whether data
and other information previously submitted by the contractor are complete
and accurate; whether the contractor
has maintained records consistent with
§ 60–1.12; and/or whether the contractor
has developed an AAP consistent with
§ 60–1.40; or
(4) Focused review. An on-site review
restricted to one or more components
of the contractor’s organization or one
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§ 60–1.20
41 CFR Ch. 60 (7–1–02 Edition)
or more aspects of the contractor’s employment practices.
(b) Where deficiencies are found to
exist, reasonable efforts shall be made
to secure compliance through conciliation and persuasion. Before the contractor can be found to be in compliance with the order, it must make a
specific commitment, in writing, to
correct any such deficiencies. The commitment must include the precise action to be taken and dates for completion. The time period allotted shall be
no longer than the minimum period
necessary to effect such changes. Upon
approval of the commitment, the contractor may be considered in compliance, on condition that the commitments are faithfully kept. The contractor shall be notified that making
such commitments does not preclude
future determinations of noncompliance based on a finding that the commitments are not sufficient to achieve
compliance.
(c) [Reserved]
(d) Preaward compliance evaluations.
Each agency shall include in the invitation for bids for each formally advertised nonconstruction contract or state
at the outset of negotiations for each
negotiated contract, that if the award,
when let, should total $10 million or
more, the prospective contractor and
its known first-tier subcontractors
with subcontracts of $10 million or
more shall be subject to a compliance
evaluation before the award of the contract unless OFCCP has conducted an
evaluation and found them to be in
compliance with the Order within the
preceding 24 months. The awarding
agency will notify OFCCP and request
appropriate action and findings in accordance with this subsection. Within
15 days of the notice OFCCP will inform the awarding agency of its intention to conduct a preaward compliance
evaluation. If OFCCP does not inform
the awarding agency within that period
of its intention to conduct a preaward
compliance evaluation, clearance shall
be presumed and the awarding agency
is authorized to proceed with the
award. If OFCCP informs the awarding
agency of its intention to conduct a
preaward
compliance
evaluation,
OFCCP shall be allowed an additional
20 days after the date that it so in-
forms the awarding agency to provide
its conclusions. If OFCCP does not provide the awarding agency with its conclusions within that period, clearance
shall be presumed and the awarding
agency is authorized to proceed with
the award.
(e) Submission of Documents; Standard
Affirmative Action Formats. Each prime
contractor or subcontractor with 50 or
more employees and a contract of
$50,000 or more is required to develop a
written affirmative action program for
each of its establishments (§ 60–1.40). If
a contractor fails to submit an affirmative action program and supporting
documents, including the workforce
analysis, within 30 days of a request,
the enforcement procedures specified
in § 60–1.26(b) shall be applicable. Contractors may reach agreement with
OFCCP on nationwide AAP formats or
on frequency of updating statistics.
(f) Confidentiality and relevancy of information. If the contractor is concerned with the confidentiality of such
information as lists of employee
names, reasons for termination, or pay
data, then alphabetic or numeric coding or the use of an index of pay and
pay ranges, consistent with the ranges
assigned to each job group, are acceptable for purposes of the compliance
evaluation. The contractor must provide full access to all relevant data onsite as required by § 60–1.43. Where necessary, the compliance officer may
take information made available during the on-site evaluation off-site for
further analysis. An off-site analysis
should be conducted where issues have
arisen concerning deficiencies or an apparent violation which, in the judgment of the compliance officer, should
be more thoroughly analyzed off-site
before a determination of compliance
is made. The contractor must provide
all data determined by the compliance
officer to be necessary for off-site analysis. Such data may only be coded if
the contractor makes the key to the
code available to the compliance officer. If the contractor believes that particular information which is to be
taken off-site is not relevant to compliance with the Executive Order, the
contractor may request a ruling by the
OFCCP District/Area Director. The
OFCCP District/Area Director shall
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Office of Federal Contract Compliance Programs
issue a ruling within 10 days. The contractor may appeal that ruling to the
OFCCP Regional Director within 10
days. The Regional Director shall issue
a final ruling within 10 days. Pending a
final ruling, the information in question must be made available to the
compliance officer off-site, but shall be
considered a part of the investigatory
file and subject to the provisions of
paragraph (g) of this section. The agency shall take all necessary precautions
to safeguard the confidentiality of such
information until a final determination is made. Such information may
not be copied by OFCCP and access to
the information shall be limited to the
compliance officer and personnel involved in the determination of relevancy. Data determined to be not relevant to the investigation will be returned to the contractor immediately.
(g) Public access to information. The
disclosure of information obtained
from a contractor will be evaluated
pursuant to the public inspection and
copying provisions of the Freedom of
Information Act, 5 U.S.C. 552, and the
Department of Labor’s implementing
regulations at 29 CFR Part 70.
[43 FR 49240, Oct. 20, 1978; 43 FR 51400, Nov. 3,
1978, as amended at 62 FR 44189, Aug. 19, 1997]
§ 60–1.21 Filing complaints.
Complaints shall be filed within 180
days of the alleged violation unless the
time for filing is extended by the Deputy Assistant Secretary for good cause
shown.
[43 FR 49240, Oct. 20, 1978; 43 FR 51400, Nov. 3,
1978, as amended at 62 FR 66971, Dec. 22, 1997]
§ 60–1.22 Where to file.
Complaints may be filed with the
OFCCP, 200 Constitution Avenue, NW.,
Washington, DC 20210, or with any
OFCCP regional or area office.
§ 60–1.23 Contents of complaint.
(a) The complaint shall include the
name, address, and telephone number
of the complainant, the name and address of the contractor or subcontractor committing the alleged discrimination, a description of the acts
considered to be discriminatory, and
any other pertinent information which
will assist in the investigation and res-
§ 60–1.24
olution of the complaint. The complaint shall be signed by the complainant or his/her authorized representative. Complaints alleging class-type
violations which do not identify the alleged discriminatee or discriminatees
will be accepted, provided the other requirements of this paragraph are met.
(b) If a complaint contains incomplete information, OFCCP shall seek
the needed information from the complainant. In the event such information
is not furnished to the Deputy Assistant Secretary within 60 days of the
date of such request, the case may be
closed.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.24 Processing of matters.
(a) Complaints. OFCCP may refer appropriate complaints to the Equal Employment
Opportunity
Commission
(EEOC) for processing under Title VII
of the Civil Rights Act of 1964, as
amended, rather than processing under
E.O. 11246 and the regulations in this
chapter. Upon referring complaints to
the EEOC, OFCCP shall promptly notify complainant(s) and the contractor
of such referral.
(b) Complaint investigations. In conducting
complaint
investigations,
OFCCP shall, as a minimum, conduct a
thorough evaluation of the allegations
of the complaint and shall be responsible for developing a complete case
record. The case record should contain
the name, address, and telephone number of each person interviewed, the
interview statements, copies, transcripts, or summaries (where appropriate) of pertinent documents, a reference to at least one covered contract,
and a narrative report of the investigation with references to exhibits and
other evidence which relate to the alleged violations.
(c)(1) [Reserved]
(2) If any complaint investigation or
compliance review indicates a violation of the equal opportunity clause,
the matter should be resolved by informal means whenever possible. Such informal means may include the holding
of a compliance conference.
(3) Where any complaint investigation or compliance review indicates a
violation of the equal opportunity
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§ 60–1.25
41 CFR Ch. 60 (7–1–02 Edition)
clause and the matter has not been resolved by informal means, the Deputy
Assistant Secretary shall proceed in
accordance with § 60–1.26.
(4) When a prime contractor or subcontractor, without a hearing, shall
have complied with the recommendations or orders of the Deputy Assistant
Secretary and believes such recommendations or orders to be erroneous, he shall, upon filing a request
therefor within ten days of such compliance, be afforded an opportunity for
a hearing and review of the alleged erroneous action.
(5) For reasonable cause shown, the
Deputy Assistant Secretary may reconsider or cause to be reconsidered any
matter on his/her own motion or pursuant to a request.
(d) Reports to the Deputy Assistant Secretary. (1) With the exception of complaints which have been referred to
EEOC, within 60 days from receipt of a
complaint or within such additional
time as may be allowed by the Deputy
Assistant Secretary for good cause
shown, the complaint shall be processed and the case record developed
containing the following information:
(i) Name and address of the complainant;
(ii) Brief summary of findings, including a statement regarding the contractor’s compliance or noncompliance
with the requirements of the equal opportunity clause;
(iii) A statement of the disposition of
the case, including any corrective action taken and any sanctions or penalties imposed or, whenever appropriate, the recommended corrective action and sanctions or penalties.
(2) A written report of every
preaward compliance review required
by this regulation or otherwise required by the Deputy Assistant Secretary, shall be developed and maintained.
(3) A written report of every other
compliance review or any other matter
processed involving an apparent violation of the equal opportunity clause
shall be made. Such report shall contain a brief summary of the findings,
including a statement of conclusions
regarding the contractor’s compliance
or noncompliance with the requirements of the order, and a statement of
the disposition of the case, including
any corrective action taken or recommended and any sanctions or penalties imposed or recommended.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.25 Assumption of jurisdiction by
or referrals to the Deputy Assistant
Secretary.
The Deputy Assistant Secretary may
inquire into the status of any matter
pending before an agency. Where he
considers it necessary or appropriate to
the achievement of the purposes of the
order, he may assume jurisdiction over
the matter and proceed as provided
herein. Whenever the Deputy Assistant
Secretary assumes jurisdiction over
any matter, or an agency refers any
matter he may conduct, or have conducted, such investigations, hold such
hearings, make such findings, issue
such recommendations and directives,
order such sanctions and penalties, and
take such other action as may be necessary or appropriate to achieve the
purposes of the order. The Deputy Assistant Secretary shall promptly notify
the agency of any corrective action to
be taken or any sanctions to be taken
or any sanction to be imposed by the
agency. The agency shall take such action, and report the results thereof to
the Deputy Assistant Secretary within
the time specified.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.26
Enforcement proceedings.
(a) General. (1) Violations of the
Order, the equal opportunity clause,
the regulations in this chapter, or applicable construction industry equal
employment opportunity requirements,
may result in the institution of administrative or judicial enforcement proceedings. Violations may be found
based upon, inter alia, any of the following:
(i) The results of a complaint investigation;
(ii) The results of a compliance evaluation;
(iii) Analysis of an affirmative action
program;
(iv) The results of an on-site review
of the contractor’s compliance with the
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Office of Federal Contract Compliance Programs
Order and its implementing regulations;
(v) A contractor’s refusal to submit
an affirmative action program;
(vi) A contractor’s refusal to allow an
on-site compliance evaluation to be
conducted;
(vii) A contractor’s refusal to provide
data for off-site review or analysis as
required by the regulations in this
chapter;
(viii) A contractor’s refusal to establish, maintain and supply records or
other information as required by the
regulations in this chapter or applicable construction industry requirements;
(ix) A contractor’s alteration or falsification of records and information
required to be maintained by the regulations in this chapter; or
(x) Any substantial or material violation or the threat of a substantial or
material violation of the contractural
provisions of the Order, or of the rules
or regulations in this chapter.
(2) OFCCP may seek back pay and
other make whole relief for victims of
discrimination identified during a complaint investigation or compliance
evaluation. Such individuals need not
have filed a complaint as a prerequisite
to OFCCP seeking such relief on their
behalf. Interest on back pay shall be
calculated from the date of the loss and
compounded quarterly at the percentage rate established by the Internal
Revenue Service for the under-payment
of taxes.
(b) Administrative enforcement. (1)
OFCCP may refer matters to the Solicitor of Labor with a recommendation
for the institution of administrative
enforcement proceedings, which may
be brought to enjoin violations, to seek
appropriate relief, and to impose appropriate sanctions. The referral may
be made when violations have not been
corrected in accordance with the conciliation procedures in this chapter, or
when OFCCP determines that referral
for consideration of formal enforcement (rather than settlement) is appropriate. However, if a contractor refuses
to submit an affirmative action program, or refuses to supply records or
other requested information, or refuses
to allow OFCCP access to its premises
for an on-site review, and if concilia-
§ 60–1.26
tion efforts under this chapter are unsuccessful, OFCCP may immediately
refer the matter to the Solicitor, notwithstanding other requirements of
this chapter.
(2) Administrative enforcement proceedings shall be conducted under the
control and supervision of the Solicitor
of Labor and under the Rules of Practice for Administrative Proceedings to
Enforce Equal Opportunity under Executive Order 11246 contained in part 60–
30 of this chapter and the Rules of Evidence set out in the Rules of Practice
and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges contained in 29
CFR part 18, subpart B: Provided, That
a Final Administrative Order shall be
issued within on year from the date of
the issuance of the recommended findings, conclusions and decision of the
Administrative Law Judge, or the submission of any exceptions and responses to exceptions to such decision
(if any), whichever is later.
(c) Referrals to the Department of Justice. (1) The Deputy Assistant Secretary may refer matters to the Department of Justice with a recommendation for the institution of judicial enforcement proceedings. There
are no procedural prerequisites to a referral to the Department of Justice.
Such referrals may be accomplished
without proceeding through the conciliation procedures in this chapter, and a
referral may be made at any stage in
the procedures under this chapter.
(2) Whenever a matter has been referred to the Department of Justice for
consideration of judicial enforcement,
the Attorney General may bring a civil
action in the appropriate district court
of the United States requesting a temporary restraining order, preliminary
or permanent injunction (including relief against noncontractors, including
labor unions, who seek to thwart the
implementation of the Order and regulations), and an order for such additional sanctions or relief, including
back pay, deemed necessary or appropriate to ensure the full enjoyment of
the rights secured by the Order, or any
of the above in this paragraph (c)(2).
(3) The Attorney General is authorized to conduct such investigation of
the facts as he/she deem necessary or
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§ 60–1.27
41 CFR Ch. 60 (7–1–02 Edition)
appropriate to carry out his/her responsibilities under the regulations in this
chapter.
(4) Prior to the institution of any judicial proceedings, the Attorney General, on behalf of the Deputy Assistant
Secretary, is authorized to make reasonable efforts to secure compliance
with the contract provisions of the
Order. The Attorney General may do so
by providing the contractor and any
other respondent with reasonable notice of his/her findings, his/her intent
to file suit, and the actions he/she believes necessary to obtain compliance
with the contract provisions of the
Order without contested litigation, and
by offering the contractor and any
other respondent a reasonable opportunity for conference and conciliation,
in an effort to obtain such compliance
without contested litigation.
(5) As used in the regulations in this
Part, the Attorney General shall mean
the Attorney General, the Assistant
Attorney General for Civil Rights, or
any other person authorized by regulations or practice to act for the Attorney General with respect to the enforcement of equal employment opportunity laws, orders and regulations
generally, or in a particular matter or
case.
(6) The Deputy Assistant Secretary
or his/her designee, and representatives
of the Attorney General may consult
from time to time to determine what
investigations should be conducted to
determine whether contractors or
groups of contractors or other persons
may be engaged in patterns or practices in violation of the Executive
Order or these regulations, or of resistance to or interference with the full enjoyment of any of the rights secured by
them, warranting judicial proceedings.
(d) Initiation of lawsuits by the Attorney General without referral from the
Deputy Assistant Secretary. In addition
to initiating lawsuits upon referral
under this section, the Attorney General may, subject to approval by the
Deputy Assistant Secretary, initiate
independent investigations of contractors which he/she has reason to believe
may be in violation of the Order or the
rules and regulations issued pursuant
thereto. If, upon completion of such an
investigation, the Attorney General de-
termines that the contractor has in
fact violated the Order or the rules and
regulations issued thereunder, he/she
shall make reasonable efforts to secure
compliance with the contract provisions of the Order. He/she may do so by
providing the contractor and any other
respondent with reasonable notice of
the Department of Justice’s findings,
its intent to file suit, and the actions
that the Attorney General believes are
necessary to obtain compliance with
the contract provisions of the Order
without contested litigation, and by offering the contractor and any other respondent a reasonable opportunity for
conference and conciliation in an effort
to obtain such compliance without contested litigation. If these efforts are
unsuccessful, the Attorney General
may, upon approval by the Deputy Assistant Secretary, bring a civil action
in the appropriate district court of the
United States requesting a temporary
restraining order, preliminary or permanent injunction, and an order for
such additional sanctions or equitable
relief, including back pay, deemed necessary or appropriate to ensure the full
enjoyment of the rights secured by the
Order or any of the above in this paragraph (d).
(e) To the extent applicable, this section and part 60–30 of this chapter shall
govern proceedings resulting from any
Deputy Assistant Secretary’s determinations under § 60–2.2(b) of this chapter.
[62 FR 44190, Aug. 19, 1997, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.27 Sanctions.
(a) General. The sanctions described
in subsections (1), (5), and (6) of section
209(a) of the Order may be exercised
only by or with the approval of the
Deputy Assistant Secretary. Referral
of any matter arising under the Order
to the Department of Justice or to the
Equal Employment Opportunity Commission shall be made by the Deputy
Assistant Secretary.
(b) Debarment. A contractor may be
debarred from receiving future contracts or modifications or extensions of
existing contracts, subject to reinstatement pursuant to § 60–1.31, for any
violation of Executive Order 11246 or
the implementing rules, regulations
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Office of Federal Contract Compliance Programs
and orders of the Secretary of Labor.
Debarment may be imposed for an indefinite term or for a fixed minimum
period of at least six months.
[62 FR 44191, Aug. 19, 1997]
§ 60–1.28
Show cause notices.
When the Deputy Assistant Secretary has reasonable cause to believe
that a contractor has violated the
equal opportunity clause he may issue
a notice requiring the contractor to
show cause, within 30 days, why monitoring, enforcement proceedings or
other appropriate action to ensure
compliance should not be instituted.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.29
Preaward notices.
(a) Preaward compliance reviews. Upon
the request of the Deputy Assistant
Secretary, agencies shall not enter into
contracts or approve the entry into
contracts or subcontracts with any bidder, prospective prime contractor, or
proposed subcontractor named by the
Deputy Assistant Secretary until a
preaward compliance review has been
conducted and the Deputy Assistant
Secretary or his designee has approved
a determination that the bidder, prospective prime contractor or proposed
subcontractor will be able to comply
with the provisions of the equal opportunity clause.
(b) Other special preaward procedures.
Upon the request of the Deputy Assistant Secretary, agencies shall not enter
into contracts or approve the entry
into subcontracts with any bidder; prospective prime contractor or proposed
subcontractor specified by the Deputy
Assistant Secretary until the agency
has complied with the directions contained in the request.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.30
Notification of agencies.
The Deputy Assistant Secretary shall
ensure that the heads of all agencies
are notified of any debarment taken
against any contractor.
[62 FR 44191, Aug. 19, 1997]
§ 60–1.31 Reinstatement
contractors.
§ 60–1.32
of
ineligible
A contractor debarred from further
contracts for an indefinite period under
the Order may request reinstatement
in a letter filed with the Deputy Assistant Secretary at any time after the effective date of the debarment. A contractor debarred for a fixed period may
request reinstatement in a letter filed
with the Deputy Assistant Secretary 30
days prior to the expiration of the fixed
debarment period, or at any time
thereafter. The filing of a reinstatement request 30 days before a fixed debarment period ends will not result in
early reinstatement. In connection
with the reinstatement proceedings, all
debarred contractors shall be required
to show that they have established and
will carry out employment policies and
practices in compliance with the Order
and implementing regulations. Before
reaching a decision, the Deputy Assistant Secretary may conduct a compliance evaluation of the contractor and
may require the contractor to supply
additional information regarding the
request for reinstatement. The Deputy
Assistant Secretary shall issue a written decision on the request.
[62 FR 44192, Aug. 19, 1997]
§ 60–1.32 Intimidation
ference.
and
inter-
(a) The contractor, subcontractor or
applicant shall not harass, intimidate,
threaten,
coerce,
or
discriminate
against any individual because the individual has engaged in or may engage
in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any
manner in an investigation, compliance evaluation, hearing, or any other
activity related to the administration
of the Order or any other Federal, state
or local law requiring equal opportunity;
(3) Opposing any act or practice made
unlawful by the Order or any other
Federal, state or local law requiring
equal opportunity; or
(4) Exercising any other right protected by the Order.
(b) The contractor, subcontractor or
applicant shall ensure that all persons
under its control do not engage in such
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§ 60–1.33
41 CFR Ch. 60 (7–1–02 Edition)
harassment, intimidation, threats, coercion or discrimination. The sanctions
and penalties contained in this part
may be exercised by OFCCP against
any contractor, subcontractor or applicant who violates this obligation.
[62 FR 44192, Aug. 19, 1997]
§ 60–1.33 Conciliation agreements.
(a) If a compliance review, complaint
investigation or other review by
OFCCP or its representative indicates
a material violation of the equal opportunity clause, and (1) if the contractor,
subcontractor or bidder is willing to
correct the violations and/or deficiencies, and (2) if OFCCP or its representative determines that settlement
(rather than referral for consideration
of formal enforcement) is appropriate,
a written agreement shall be required.
The agreement shall provide for such
remedial action as may be necessary to
correct the violations and/or deficiencies noted, including, where appropriate (but not necessarily limited to),
remedies such as back pay and retroactive seniority.
(b) The term ‘‘conciliation agreement’’ does not include ‘‘letters of
commitment’’ which are appropriate
for resolving minor technical deficiencies.
(E.O. 11246 (30 FR 12319) as amended by E.O.
11375 and 12086)
[44 FR 77002, Dec. 28, 1979]
§ 60–1.34 Violation of a conciliation
agreement or letter of commitment.
(a) When a conciliation agreement
has been violated, the following procedures are applicable:
(1) A written notice shall be sent to
the contractor setting forth the violations alleged and summarizing the supporting evidence. The contractor shall
have 15 days from receipt of the notice
to respond, except in those cases in
which such a delay would result in irreparable injury to the employment
rights of affected employees or applicants.
(2) During the 15-day period the contractor may demonstrate in writing
that it has not violated its commitments.
(3) If the contractor is unable to demonstrate that it has not violated its
commitments, or if the complaint alleges irreparable injury, enforcement
proceedings may be intitiated immediately without issuing a show cause
notice or proceeding through any other
requirement contained in this chapter.
(4) In any proceeding involving an alleged violation of a conciliation agreement OFCCP may seek enforcement of
the agreement itself and shall not be
required to present proof of the underlying violations resolved by the agreement.
(b) If the contractor has violated a
letter of commitment, the matter shall
be handled, where appropriate, pursuant to 41 CFR 60–2.2(c) or 60–4.8. The
violation may be corrected through a
conciliation agreement, or an enforcement proceeding may be initiated.
(E.O. 11246 (30 FR 12319) as amended by EO
11375 and 12086)
[44 FR 77002, Dec. 28, 1979, as amended at 62
FR 44192, Aug. 19, 1997]
Subpart C—Ancillary Matters
§ 60–1.40
Affirmative action programs.
(a)(1) Each nonconstruction (supply
and service) contractor must develop
and maintain a written affirmative action program for each of its establishments, if it has 50 or more employees
and:
(i) Has a contract of $50,000 or more;
or
(ii) Has Government bills of lading
which in any 12-month period, total or
can reasonably be expected to total
$50,000 or more; or
(iii) Serves as a depository of Government funds in any amount; or
(iv) Is a financial institution which is
an issuing and paying agent for U.S.
savings bonds and savings notes in any
amount.
(2) Each contractor and subcontractor must require each nonconstruction subcontractor to develop and
maintain a written affirmative action
program for each of its establishments
if it has 50 or more employees and:
(i) Has a subcontract of $50,000 or
more; or
(ii) Has Government bills of lading
which in any 12-month period, total or
can reasonably be expected to total
$50,000 or more; or
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Office of Federal Contract Compliance Programs
(iii) Serves as a depository of Government funds in any amount; or
(iv) Is a financial institution which is
an issuing and paying agent for U.S.
savings bonds and savings notes in any
amount.
(b)
Nonconstruction
contractors
should refer to Part 60–2 for specific affirmative action requirements. Construction contractors should refer to
Part 60–4 for specific affirmative action
requirements.
[65 FR 68042, Nov. 13, 2000]
§ 60–1.41 Solicitations or
ments for employees.
advertise-
In solicitations or advertisements for
employees placed by or on behalf of a
prime contractor or subcontractor, the
requirements of paragraph (2) of the
equal opportunity clause shall be satisfied whenever the prime contractor or
subcontractor complies with any of the
following:
(a) States expressly in the solicitations or advertising that all qualified
applicants will receive consideration
for employment without regard to
race, color, religion, sex, or national
origin;
(b) Uses display or other advertising,
and the advertising includes an appropriate insignia prescribed by the Deputy Assistant Secretary. The use of the
insignia is considered subject to the
provisions of 18 U.S.C. 701;
(c) Uses a single advertisement, and
the advertisement is grouped with
other advertisements under a caption
which clearly states that all employers
in the group assure all qualified applicants equal consideration for employment without regard to race, color, religion, sex, or national origin;
(d) Uses a single advertisement in
which appears in clearly distinguishable type the phrase ‘‘an equal opportunity employer.’’
language and be provided by the contracting or administering agencies:
EQUAL EMPLOYMENT OPPORTUNITY IS THE
LAW—DISCRIMINATION IS PROHIBITED BY THE
CIVIL RIGHTS ACT OF 1964 AND BY EXECUTIVE
ORDER NO. 11246
Title VII of the Civil Rights Act of 1964—Administered by:
THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Prohibits discrimination because of Race,
Color, Religion, Sex, or National Origin by
Employers with 15 or more employees, by
Labor Organizations, by Employment Agencies, and by Apprenticeship or Training Programs
ANY PERSON
Who believes he or she has been
discriminated against
SHOULD CONTACT
llllllllllllllllllllllll
THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street NW., Washington, DC 20507
Executive Order No. 11246—Administered by:
THE OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS
Prohibits discrimination because of Race,
Color, Religion, Sex, or National Origin, and
requires affirmative action to ensure equality of opportunity in all aspects of employment.
By all Federal Government Contractors
and Subcontractors, and by Contractors Performing Work Under a Federally Assisted
Construction Contract, regardless of the
number of employees in either case.
ANY PERSON
Who believes he or she has been
discriminated against
SHOULD CONTACT
llllllllllllllllllllllll
THE OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.42 Notices to be posted.
(a) Unless alternative notices are prescribed by the Deputy Assistant Secretary, the notices which contractors
are required to post by paragraphs (1)
and (3) of the equal opportunity clause
in § 60–1.4 will contain the following
§ 60–1.42
U.S. Department of Labor, Washington, DC
20210
(b) The requirements of paragraph (3)
of the equal opportunity clause will be
satisfied whenever the prime contractor or subcontractor posts copies of
the notification prescribed by or pursuant to paragraph (a) of this section in
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§ 60–1.43
41 CFR Ch. 60 (7–1–02 Edition)
conspicuous places available to employees, applicants for employment,
and representatives of each labor union
or other organization representing his
employees with which he has a collective-bargaining agreement or other
contract or understanding.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 44192, Aug. 19, 1997; 62 FR 66971, Dec. 22,
1997]
§ 60–1.43 Access to records and site of
employment.
Each contractor shall permit access
during normal business hours to its
premises for the purpose of conducting
on-site compliance evaluations and
complaint investigations. Each contractor shall permit the inspecting and
copying of such books and accounts
and records, including computerized
records, and other material as may be
relevant to the matter under investigation and pertinent to compliance with
the Order, and the rules and regulations promulgated pursuant thereto by
the agency, or the Deputy Assistant
Secretary. Information obtained in this
manner shall be used only in connection with the administration of the
Order, the Civil Rights Act of 1964 (as
amended), and any other law that is or
may be enforced in whole or in part by
OFCCP.
[62 FR 44192, Aug. 19, 1997]
§ 60–1.44
Rulings and interpretations.
Rulings under or interpretations of
the order or the regulations contained
in this part shall be made by the Secretary or his designee.
§ 60–1.45 Existing contracts and subcontracts.
All contracts and subcontracts in effect prior to October 24, 1965, which are
not subsequently modified shall be administered in accordance with the nondiscrimination provisions of any prior
applicable Executive orders. Any contract or subcontract modified on or
after October 24, 1965, shall be subject
to Executive Order 11246. Complaints
received by and violations coming to
the attention of agencies regarding
contracts and subcontracts which were
subject to Executive Orders 10925 and
11114 shall be processed as if they were
complaints regarding violations of this
order.
§ 60–1.46 Delegation of authority by
the Deputy Assistant Secretary.
The Deputy Assistant Secretary is
authorized to redelegate the authority
given to him by the regulations in this
part. The authority redelegated by the
Deputy Assistant Secretary pursuant
to the regulations in this part shall be
exercised under his general direction
and control.
[43 FR 49240, Oct. 20, 1978, as amended at 62
FR 66971, Dec. 22, 1997]
§ 60–1.47
Effective date.
The regulations contained in this
part shall become effective July 1, 1968,
for all contracts, the solicitations, invitations for bids, or requests for proposals which were sent by the Government or an applicant on or after said
effective date, and for all negotiated
contracts which have not been executed as of said effective date. Notwithstanding the foregoing, the regulations in this part shall become effective as to all contracts executed on and
after the 120th day following said effective date. Subject to any prior approval
of the Secretary, any agency may defer
the effective date of the regulations in
this part, for such period of time as the
Secretary finds to be reasonably necessary. Contracts executed prior to the
effective date of the regulations in this
part shall be governed by the regulations promulgated by the former President’s Committee on Equal Employment Opportunity which appear at 28
FR 9812, September 2, 1963, and at 28
FR 11305, October 23, 1963, the temporary regulations which appear at 30
FR 13441, October 22, 1965, and the orders at 31 FR 6881, May 10, 1966, and 32
FR 7439, May 19, 1967.
PART 60–2—AFFIRMATIVE ACTION
PROGRAMS
Subpart A—General
Sec.
60–2.1
60–2.2
Scope and application.
Agency action.
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| File Type | application/pdf |
| File Title | Document |
| Subject | Extracted Pages |
| Author | U.S. Government Printing Office |
| File Modified | 2006-09-12 |
| File Created | 2006-09-12 |