Petition — Keco Industries, Inc. v. Equal Employment Opportunity Commission

80-75 ¢ | Supreme Court, Us,

"iLes

No. JUL 171980

EMICHAEL RODAK, JR., CLERK |

Cer ee we~—ereeree

_ IN THE

Supreme Court of the United States

October Term, 1980

4

KECO INDUSTRIES, INC.,

Petitioner,

v.

EQUAL EMPLOYMEN'™ OPPORTUNITY

COMMISSION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CiRCUIT

Joun J. BARRETT

Counsel for Petitioner

Keco Industries, Inc.

26 Broadway

New York, New York 10004

(212) 422-8180

Of Counsel:

Warren H. Cotopner

Rosert C. Macrex

Barrett SmitH ScHAPriro

Simon & ARMSTRONG

IN THE

Supreme Court of the United States

October Term, 1980

Keco Inpvustriss, Ino.,

Petitioner,

Vv.

EquaL EMpLoyMENT OpportTUNITY CoMMISSION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Question Presented

Whether the Equal Employment Opportunity Commis-

sion may, consistent with Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., institute

and maintain suit and withstand a motion for summary

judgment solely on the basis of information contained in an

affirmative action program prepared and submitted by an

employer pursuant to Executive Order 11246 and specifi-

cally approved by the delegate of the Secretary of Labor.

IIl

Table of Contents

PAGE

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Statutes, Executive Orders and Regulations Involved 1

I vassal covoseabonevyer ieivinsdisseys' 2

Keco’s Affirmative Action Program ...................... 3

EEOC Investigates the Grimes Charge .............. | 4

Grimes and EEOC Sue Keco in Separate Actions 6

NN oo cic caiaeesinsverssncnansissnseenosesesdzves 8

Reasons for Granting the WYit .............::c tee 8

ec assnacdesaielercerahtpebifenessavsasones 11

Appendices

Appendix A—Court of Appeals Opinion ................... la

Appendix B—Judgment of Court of Appeals ............ 9a

Appendix C—Court of Appeals Order Denying Peti-

I ci Li joducvarasbibdovonsepritsetnsparss ensuites 10a

Appendix D—District Court Opinion Granting

I IIE oo igsusssesacsssnscosvinvevaserdsnsavevorabent lla

Appendix E—District Court Opinion Denying

EEOC’s Motion to Reconsider Grant of Sum-

I MUINOINE cos sscecessncasossssorscsnavcasesestossonsensensnnss 13a

Appendix F—Statutes, Executive Order and Reg-

ulations Involved ..............:008 Libido 15a

PREVIOUS PAGE WAS BLANK

IV

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

Contractors Association of Eastern Pennsylvania v.

Secretary of Labor, 442 F.2d 159 (3d Cir.), cert.

dented, 404 U.S. 854 (1971) oooiicice occcccccccseseseseeeee:

EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir.

1977) DD

EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5t

See SU hea cailes Preah oe atti ss Meais: ry abe ee

EKOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th

Cir.), cert. denied, 423 U.S. 994 (1975) o.oo...

EEOC v. Missouri Pacific R. Co., 493 F.2d 71 (8th Cir.

POR i A eho au haat eeceen. t

KEOC v. North Hills Passavant Hospital, 544 F.2d 664

(3d Cir. 1976)

Fullilove v. Klutznick, —— U.S. ——, 48 U.S.L.W.

ined ow Bk) ENN te eee nae Tn HL

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ............

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)

Regents of the University of California v. Bakke, 438

REMC ET POOD ies cacinentseeitls dics esetuiweuee es

United Steelworkers of America v. Weber, 443 U.S.

193 (1979)

PAGE

PAGE

Statutes:

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ig i Nr a a

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Me MND, A EPO BCE) oi 5. <0cccvcvcseivdeveiosesovenssovssasceeCetesse 6

Executive Orders:

Executive Order No. 11246, 30 Fed. Reg. 12319 (1965),

as amended by Executive Order No. 11375, 32

Fed. Reg. 14303 (1967) ...0.0.c.0....d, 1, 8, 8n, 4, 4n

Me 048-C ts kessuapniviivecsesnts dintesssaic) cat Se 2n

a cot A an aca?

Regulations:

Na fuss aes std dsndsecevencsshtéioalna sscarccaat 1

ED ooo int saseccrvssacsyeraves osnsisvacsoreisneerlesects cs 3n

MI ot a, tsa dsp csdsinnt otpecbevacovbesueses 1

Order No. 4 of the Secretary of Labor, 41 C.F.R.

RECREATES Sp On et ee ee eR ERE 1, 3, 4n

CEES Des af eaters Rrra See er 3n

Relief Requested

The petitioner Keco Industries, Inc. respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Sixth Circuit entered in this proceeding on March 20,

1980.

Opinions Below

The opinion of the Court of Appeals (App. A, infra),

is reported at 617 F.2d 443. The opinions of the District

Court for the Southern District of Ohio, granting sum-

mary judgment in favor of petitioner on July 1, 1977

(App. D, infra) and denying EEKOC’s motion for reconsid-

eration on August 28, 1977 (App. E, mfra), are not

reported.

Jurisdiction

The judgment of the Court of Appeals for the Sixth

Circuit was entered on March 20, 1980 (App. B, imfra).

A timely petition for rehearing was denied on April 18,

1980 (App. C, imfra), and this petition for certiorari was

filed within 90 days of that date. This Court’s jurisdic-

tion is invoked under 28 U.S.C. §1254(1).

Statutes, Executive Orders and Regulations Involved

Selected provisions of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §2000e, et seq., Execu-

tive Order 11246, 30 Fed. Reg. 12319 (1965), as amended by

Executive Order No. 11375, 32 Fed. Reg. 14303 (1967), re-

printed in 42 U.S.C. §2000e at 1232 (1976), 41 C.F.R. §$60-

1.6 and 60-1.40 (1971), and Order No. 4 of the Secretary of

Labor, 41 C.F.R. §60-2 (1971), are reproduced in Appendix

F, infra.

Statement of the Case

Petitioner Keco Industries, Ine. (‘‘Keco’’) is a gov-

ernment contractor* subject to the provisions against dis-

crimination in employment imposed by Executive Order

11246, as amended.** Excutive Order 11246 requires gov-

ernment contractors, such as Keco, not to discriminate in

employment and to ‘‘take affirmative action to ensure’’ that

applicants and employees are not discriminated against.t

* Keco is a manufacturer of specialized air-conditioning equipment,

most of which is sold pursuant to federal government procurement

contracts. At the times relevant here, Keco employed an aggregate

of less than 250 persons at its Cincinnati, Ohio and Santa Ana, Cali-

fornia plants.

** The history of executive efforts concerning fair employment

practices of government contractors is traced in Contractors Associa-

tion of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 168-

71 (3d Cir.), cert. denied, 404 U.S. 854 (1971).

} The prohibitions of Title VII and those of Executive Order

11246 are essentially identical. Executive Order 11246, $202 requires

that the contractor agree that :

“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, demo-

tion, or transfer; recruitment or recruitment advertising ; layoff

or termination ; rates of pay or other forms of compensation ; and

selection for training, including apprenticeship.”

Substantially equivalent language is contained in Title VII, 42

U.S.C. §2000e-2(a), which forbids an employer :

“(1) to fail or refuse to hire or to discharge an individual,

or otherwise to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color, religion, sex, or

national origin ; or

(2) to limit, segregate, or classify his employees or appli-

cants for employment in any way which would deprive or tend

to deprive any individual of employment opportunities or other-

wise adversely affect his status as an employee, because of such

individual’s race, color, religion, sex, or national origin.”

3

The provision for affirmative action programs was imple-

mented by the Secretary of Labor in his Order No. 4, 41

C.F.R. §60-2 (1971).

Keco’s Affirmative Action Program

In October, 1970, Keco voluntarily filed a memorandum

which, together with accomanying exhibits, set forth an af-

firmative action program, with the Office of Contracts Com-

pliance of the Defense Supply Agency (‘‘DSA’’), to which

the Secretary of Labor had delegated the responsibility for

reviewing such plans for compliance with Executive Order

11246 and Order No. 4.* Keco’s submission provided de-

tailed information concerning its employment practices and

work force, including (as required by Order No. 4) an

analysis of Keco’s utilization of minorities and women in

each job category and a tabular analysis of job classifica-

tions and rates.

The crucial fact in this case is that Keco’s October

1970 affirmative action submission became, more than nine

years later, the only purported basis for the Sixth Circuit’s

reinstatement of EEOC’s action against Keco.

It is undisputed that the affirmative action program

submitted for approval by Keco in October 1970 (the ‘‘ Af-

firmative Action Program’’) was a revised version of an

affirmative action program, dated July 9, 1969, which had

already been approved by the DSA. Prior to Keco’s

October 1970 submission, a DSA contractor relations

* Executive Order 11246, §205 and 41 C.F.R. §§ 60-1.6(a) and

60-2.2 assign primary responsibility for obtaining compliance with

Executive Order 11246 and Order No. 4 to each government con-

tracting agency, in cooperation with the Office of Federal Contract

Compliance (““OFCC”’) of the Department of Labor.

4

specialist, Roland Ferris, had personally conducted a ‘‘com-

phiance review”’ of Keco’s Cincinnati plant. On Decem-

ber 4, 1970, Ferris wrote to Keco approving the October

1970 Affirmative Action Program, stating:

‘A detailed analysis of your written Affirmative Ac-

tion Program revealed that your facility is m com-

pliance with Order Number 4 Revised.

‘*Your concern with the utilization of minority

group persons and your desire to further enhance

your Equal Employment Opportunity profile is sin-

cerely appreciated.’’ (Ferris Dep. Ex. 4-D.)*

Subsequent revisions of Keco’s Affirmative Action

Program were similarly approved by the DSA on July 7,

1972, August 22, 1973, and September 22, 1975 (Ferris

Dep. Exs. 7, 8 and 9). In addition, since the filing of

EKEOC’s complaint herein and through the present, Keco’s

periodically revised affirmative action program has con-

tinued to be approved by the DSA and Keco’s plant has

always been found to be in compliance with Executive Order

11246.

EEOC Investigates the Grimes Charge

Approximately one year after Keco’s initial submission

of an affirmative action program, and several months be-

fore the October 1970 program was approved, Lena J.

Grimes, an office employee of Keco, filed a charge of sex

discrimination with the EEOC in which she asserted that

she had been paid less than male employees allegedly

* The affirmative action program considered by this Court in

United Steelworkers of America v. Weber, 443 U.S. 193 (1979), had

been similarly submitted for approval to, and a proved by, the OFCC

under Executive Order 11246 and Order No. i

~—- # .-s 42 2A ._— —_— &2 & -« = - _ a *» ~

5

doing the same job. Keco has consistently denied that Mrs.

Grimes performed the same functions or exercised the same

responsibility as those male employees.

Keco was notified of the Grimes charge for the first

time on February 3, 1971, more than six months after

it had been filed. On that day, the charge was served on

Keeo by an EEOC investigator, who immediately thereafter

inspected certain of Keco’s books and records and inter-

viewed Keco’s management.* Except for production of a

copy of Keco’s Affirmative Action Program, this visit to

Keco comprised the entire EEOC investigation of the

Grimes complaint.

Thereafter, on April 7, 1971, the Cleveland District

Director of the EEOC, Chester J. Gray, issued for Keco’s

comments proposed ‘‘findings of fact’’ concerning the

Grimes complaint (Ferris Dep. Ex. 4-P), basing these solely

on the written EEOC file. Keco responded in detail on

April 22, 1971. (Ferris Dep. Ex. 4-S.)

More than three years later, on May 31, 1974, EEOC

issued a determination that there was ‘‘reasonable cause’’

to believe that Grimes had been discriminated against

(Ferris Dep. Ex. 4-CC). That determination, which was

based solely on the EEOC written file, relied on certain

alleged disparities in pay between Grimes and male Keco

employees who were said to perform the same functions.

* Before contacting EEOC, Grimes had resigned from Keco.

In late 1970, however, after she had instituted her charge but before

Keco had been notified of its pendency, she voluntarily returned to

Keco as a temporary employee at the same allegedly discriminatory

rate of pay. Grimes voluntarily left Keco’s employ before Keco

was served with her charge.

6

The ‘‘determination”’ also noted ‘‘a like and related issue’’

concerning Keco’s allegedly ‘‘sex-segregated job classifica-

tion in Assembly, whereby male jobs pay fifteen to ninety-

five cents more than female jobs’’—allegations again based

solely on data supplied in the October 1970 Affirmative Ac-

tion Program. That ‘‘determination’’ was signed by the

very same Roland Ferris who had approved that Affirma-

tive Action Program.*

Grimes and EEOC Sue Kecoin Separate Actions

On September 13, 1974, the EEOC issued to Grimes, at

her request, a ‘‘right to sue’’ letter pursuant to 42 U.S.C.

§2000e-5(f)(1). On December 6, 1974, Grimes commenced

an action against Keco in the district court, alleging that

Keco had discriminated against her on the basis of sex

solely in that she allegedly had been paid at a lower rate

than male employees performing the same work.

More than nine months later, on September 22, 1975,

EEOC filed the instant action, the allegations of which are

far broader than those of the Grimes complaint.

The prior commencement of the private lawsuit limited

EECC to permissive intervention unless its action raised

substantially different issues and sought relief other than

that asserted by Grimes.** A central issue in the courts

*In 1972, Ferris had been appointed director of the newly-

established Cincinnati office of the EEOC.

** EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1362-63 (6th

Cir.), cert. denied, 423 U.S. 994 (1975); EEOC v. Continental Oil

Co., 548 F.2d 884 (10th Cir. 1977) ; EEOC v. Huttig Sash & Door

Co., 511 F.2d 453, 455 (Sth Cir. 1975) ; EEOC v. Missouri Pacific

R. Co., 493 F.2d 71, 73-75 (8th Cir. 1974). But see EEOC v. North

Hills Passavant Hospital, 544 F.2d 664 (3d Cir. 1976).

7

below therefore was whether EEOOC’s claims were broader

than those asserted by Grimes. Although the allegations of

the EEOC complaint are stated in broader terms than the

Grimes complaint, EEOC conceded in answers to interroga-

tories that its allegations of sex discrimination were ‘‘based

solely upon the administrative file for the Grimes v. Keco

charge.’’** Thereafter, in EEOC’s memorandum sub-

mitted in opposition to Keco’s motion for summary judg-

ment, EEOC set forth no alleged factual basis for its claims

other than the administrative record compiled in the Grimes

investigation. Rather, EEOC relied solely on the expressed

hope that additional matters might be uncovered in future

discovery.

* The answers to other interrogatories and depositions of EEOC

personnel similarly indicated that EEOC had no purported basis for

asserting claims beyond those asserted by Grimes. See the Sixth Cir-

cuit’s discussion at App. 4a-6a.

EEOC’s answers also showed that other allegations of the com-

plaint were highly inflated and misleading. Although the complaint

(6) alleged that “persons claiming to be aggrieved filed charges with

the Commission alleging violations of Title VII” by Keco (emphasis

supplied), EEOC’s answers indicated that, except for Grimes, no

one had ever filed a charge of sex discrimination against Keco. The

only three other charges ever filed were by males; two of these,

alleging race discrimination, were disposed of by “no cause” determi.

nations by EEOC; the third, of unknown nature, was “terminated

without jurisdiction” by EEOC and was never served on Keco. In

addition, since Grimes had complained of discrimination only between

October 1968 and April 1970 and EEOC’s investigator had focussed

only on those dates, EEOC’s admission that its complaint was based

solely on its file in the Grimes matter similarly cut the ground from

beneath its ambitious allegations that Keco had engaged in employ-

ment discrimination “‘[s]ince at least July 2, 1965 [the effective date

of Title VII], and continuously up to the present time” (Complaint,

7). Thus, EEOC had no purported basis except the Grimes com-

plaint and the Affirmative Action Program for instituting this action.

The Decisions Below

The District Court granted summary judgment against

EEOC, holding that

‘*the EEOC investigation in connection with the

Grimes matter produced nothing to warrant the allega-

tions of the EEOC complaint . . . extending beyond

the Grimes charge.’’ (App. 12a.)*

In reversing, the Sixth Circuit refused to be bound by

EEOC’s responses to the interrogatories. In searching

the record, the Sixth Circuit found that the data contained

in the October 1970 Affirmative Action Program submis-

sion had created an issue of fact as to whether the Grimes

case and this action were identical. (App. 6a-8a.)**

Reasons for Granting the Writ

The Sixth Circuit’s decision is flatly inconsistent with

Congressional policy favoring the voluntary elimination

of the effects of past discrimination and, if not reversed,

will tend to discourage voluntary compliance with Title

VII’s mandate.

* The Grimes action, which had been consolidated with the EEOC

action, . -inains pending in the District Court.

** The Sixth Circuit also found an issue of fact to exist with

to whether Keco had failed to submit certain required “EEO-1”

reports to the EEOC (App. 3a-4a). EEOC’s brief did not seek re-

versai on this ground, and Keco maintains that certain Small Business

Adrninistration forms which it filed in 1974 and 1975 were equivalent

to EEO-1 forms. Although EEOC’s abandonment of this claim con-

cerning the forms suggests that the issue is trivial and hyper-technical

at best, we concede that it remains extant.

9

This Court has repeatedly emphasized that Title VII

was enacted in order to

‘assure equality of employment opportunities by elim-

inating those practices and devices that discriminate

on the basis of race, color, religion, sex or national

origin. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 800 (1973); Griggs v. Duke Power Co., 401 U.S.

424, 429-430 (1971).’’ Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974).

Congress recognized, however, that the achievement of

this goal was largely dependent upon voluntary compliance

by employers. Alexander v. Gardner-Denver Co., supra, 415

U.S. at 44; see also Regents of the University of Califorma

v. Bakke, 438 U.S. 265, 336-38, 364 n.38 (1978) (opinion of

Brennan, White, Marshall and Blackmun, JJ.). The legisla-

tive history of the Act, which this Court recently reviewed in

United Steelworkers of America v. Weber, 443 U.S. 193

(1979), makes clear that affirmative action programs, such

as those adopted by Keeo, are among the forms which

such favored voluntary compliance may take. Indeed, a

primary ground for this Court’s holding that the affirmative

action program in Weber did not violate Title VII was its

practical realization that an interpretation of Title VII

which ‘‘forbade all race conscious actions’’ would power-

fully discourage employers’ voluntary efforts to eliminate

discrimination in employment and thus ‘‘would ‘bring

about an end completely at variance with the purpose of

the statute.’ ’’ United Steelworkers of America v. Weber,

supra, 443 U.S. at 202.

As was the situation in Weber, the appellate decision

in this case ‘‘places voluntary compliance with Title VII

10

in profound jeopardy.’’ 443 U.S. at 210 (Blackmun, J.,

concurring). Keco has voluntarily adopted affirmative

action programs, which the Government has approved over

a 10-year period, and has recognized its responsibility to

encourage the employment and promotion of persons from

previously disadvantaged groups. Yet the EEOC lawsuit

which the Sixth Circuit reinstated is concededly based

solely upon data contained in these affirmative action

programs and HEOC’s misguided hope that it can find sup-

port for its charges by conducting a time consuming and

needlessly expensive fishing expedition through Keco’s

files. If this result is permitted to stand, any employer in

the future who voluntarily files an affirmative action pro-

gram in good faith with the Government will do so at the

peril of being sued for alleged past discrimination based

upon such documentation.

This Court has recently recognized the compelling pub-

lic interest in affirmative action to overcome the effects of

past discrimination in employment. Fullilove v. Klutznick,

— US. —,, 48 U.S.L.W. 4979 (July 2, 1980). The

Court of Appeals’ decision sanctions the use of such af-

firmative action programs as swords against employers

and will inevitably discourage the submission and adoption

of such programs. This result would be contrary to the

public interest and a clear departure from the intent of

Congress.

11

Conclusion

For these reasons, a writ of certiorari should be issued

to review the judgment and opinion of the Sixth Circuit.

July 16, 1980

Respectfully submitted,

JoHn J. Barrert

Counsel for Petitioner

Keco Industries, Inc.

26 Broadway

New York, New York 10004

(212) 422-8180

Of Counsel:

Warren H, CoLtopner

Rosert C, Macexk

Barrett SMITH SCHAPIRO

Simon & ARMSTRONG

Appendices

APPENDIX A

Court of Appeals Opinion

No. 77-3498

UNITED STATES COURT OF APPEALS

For tHe Srxra Circuit

—_—_—_—_—E—

Equat Empitoyment Opportunity Commission,

Plaintiff-A ppellant,

v.

Keco Inpusrrigrs, Inc.,

Defendant-A ppellee.

Appeal from the United States District Court for the

Southern District of Ohio, Western Division.

ee >

Decided and Filed March 20, 1980,

Before: Ence. and Kennepy, Circuit Judges, and Peck,

Senior Circuit Judge.

Kennepy, Circuit Judge. The Equal Employment Op-

portunity Commission (HEOC) appeals from the District

Court’s grant of summary judgment to the defendant Keco

Industries, Inc. (Keco). This Court, upon review of the

entire record, finds that there are issues of material fact in

dispute and remands the case to the District Court for fur-

ther proceedings.

2a

Appendix A—Court of Appeals Opinion

Mrs. Lena Grimes, an employee of Keco, filed a charge

with the EEOC on July 22, 1970, alleging sex discrimination

in that, although she was promoted to the position of buyer,

she never received the same pay as the male buyers. Inves-

tigative interviews were conducted in February 1971 and

the Regional Director made findings of fact in April 1971.

A Determination of Probable Cause was made May 1, 1974.

Mrs. Grimes was notified of her right to sue July 9, 1974 and

filed suit December 6, 1974. On September 22, 1975 the

KEOC filed the instant action. Its motion to consolidate the

two actions was granted by the District Court.

Thereafter, Keco moved to dismiss the EEOQ’s com-

plaint as being merely duplicative of the Grimes’ com-

plaint.1. The District Court held that the complaint alleged

charges broader than those in Grimes’ complaint and re-

fused to dismiss the case. After taking depositions and

serving interrogatories upon EEOC, Keco moved for sum-

mary judgment, arguing that the EEOQ’s answers to the

interrogatories indicated that it had nothing except Grimes’

charge as a basis for its allegations. The District Court

agreed that EEOC’s answers to interrogatories indicated

it had nothing broader than Grimes’ charge and that it

could not depend upon discovery to seek to establish it had

anything broader.

On appeal, EEOC points to its Determination of Prob-

able Cause as proof it has a broader claim than Grimes’

‘This Court held in EEOC v. Kimberly-Clark Corp., 511 F.2d

1352, 1362-63 (6th Cir. 1975), cert. denied, 423 U.S. 994, that Con-

gress did not intend the EEOC to use its power to bring suits to

duplicate actions brought by private parties. However, the EEOC’s

complaint should not be dismissed (but could be consolidated with the

private action) if the EEOC’s investigation of the private party’s

suit disclosed a number of violations with a discriminatory impact

extending beyond the particular situation of the private party.

3a

Appendix A—Court of Appeals Opinion

charge. Keeco objects to the HEOC’s reliance on this docu-

ment since it is merely the unsworn determination by a

party to the litigation and should be treated in the same

fashion as an allegation of a complaint. It claims that as

EEOC has not presented any affidavits, depositions, or

other sworn testimony, it failed to meet the requirements of

Fed. R. Civ. Pro. 56(e) for opposing a motion for summary

judgment and thus must fail.

The allegations of the EEOC complaint are clearly

broader than those alleged by Mrs. Grimes. Her complaint

states that Keco discriminated on the basis of sex by not

paying her the same wages as men who performed the same

job, that of buyer. The EEOC, in {7 of its complaint, al-

leges Keco engaged in unlawful employment practices, to

wit: (a) failing to pay females on the same basis as males;

(b) assigning women to lower paying clerical jobs and re-

fusing them advancement to management and supervisory

positions; and (¢c) maintaining job classifications segre-

gated on the basis of sex. In {9 of its complaint, EEOC

alleges that since 1971 Keco failed to submit to the EEOC

the Employer Information Report EEO-1 (KEKO-1 Report

[Standard Form 100]) as required by § 709(c) of Title VII

and 29 C.F.R. § 1602.7. This Court must examine the

EEOC’s answers to Keceo’s interrogatories to determine if

those answers show there is no issue of fact with respect to

the broader allegations.

With respect to the failure to file EEO-1 reports, the

EEOC’s answers to interrogatories stated that the Com-

mission’s Office of Research, the division of the Commis-

sion which receives and has custody of EEO-1’s [Standard

Form 100] found no record of EEO-1 reports for Keco In-

dustries, Inc. for the years 1972, 1973, 1974, and 1975. By

4a

Appendia A—Court of Appeals Opinion

affidavit, David M. Levin stated that he made a diligent

inquiry of the Office of Research, but no EEO-1’s could be

found for Keco for 1972 through 1975 (Exhibit D, attached

to Plaintiff’s Memorandum in Opposition to Defendant’s

Motion to Dismiss). By affidavit, Marguerite Downing,

Keco’s Office manager, stated that filings of EEO-1’s were

made 1970 through 1975. Attached to the affidavit were

copies of EEO-1’s for February 1971, May 1972, and May

1973. However, for 1973, 1974, and 1975, copies of the

Small Business Administration Compliance Report were

attached rather than EEO-1’s. (The record does not state

whether these are equivalent.) The affidavits clearly show

a material issue of fact whether or not Keco filed the proper

papers. EEOC’s answers to interrogatories did not re-

move this issue of disputed fact. The District Court was in

error in dismissing the complaint with respect to 9.

The more important issue relates to the charges of sex

discrimination. In its answer to question 4, the EEOC ad-

mitted that only four persons have filed charges against

Keco, and only one, Mrs. Grimes, is a sex discrimination

charge. Question 5 asked EEOC to specify the names of

individuals affected and the nature of all the alleged unlaw-

ful employment practices mentioned in EEOC’s complaint,

7. EEOC answered:

The names of those persons affected by the De-

fendant’s alleged unlawful employment practices and

the dates they were affected will be made available to

Defendant after Plaintiff has conducted discovery. The

names of witnesses and a list of places, where relevant,

will be provided to Defendant after the Plaintiff has

conducted discovery.

Question 6 asked the EEOC to state the policies and prac-

tices of Keco upon which {| 7 of the complaint was based and

da

Appendia A—Court of Appeals Opinion

to identify all documents, records, or writings in which such

practices were set forth. EEOC answered:

The allegations in paragraph 7 of Plaintiff’s com-

plaint are based upon the reasonable cause determina-

tion on the issues of equal pay and sex segregated job

classifications, in the Grimes’ charge. All discover-

able documents, records or writings contained in the

Grimes file, and upon which the reasonable cause de-

terminations are based have been made available to

the Defendant pursuant to the Defendant’s subpoena

issued by the U.S. District Court, Southern District of

Ohio, Western Division on December 30, 1975.

The answer to question 13 stated that the EEOC’s com-

plaint was based solely upon the administrative file in the

Grimes’ case and the inquiry with the HEOC’s Office of Re-

search. Questions 15, 16, and 17 asked for the identity of

each female whom Keco allegedly failed to pay on the same

basis as males, assigned to lower paying clerical jobs, or

refused advancement. To each question, EREOC answered,

‘‘Lena J. Grimes and those females to be identified during

discovery.’’ Question 18 asked EEOC to identify each job

classification at Keco wherein there is allegedly segrega-

tion on the basis of sex, to which EEOC replied, ‘‘A list of

sex segregated job classifications will be made available to

defendant after plaintiff has conducted discovery.’’

The District Court held that these answers indicated

that the EEOC had nothing upon which to base a claim

broader than Mrs. Grimes’ claim. The EEOC had no

names other than Mrs. Grimes’ name, but it did not admit

that there were no other persons. In its answer to ques-

tion 6, it pointed to Grimes’ administrative file to support

its broader claims in [7 of its complaint. Were the Court

6a

Appendix A—Court of Appeals Opinion

to confine its inquiry to the answers to the interrogatories,

it would agree with the District Court that the EEOC has

not demonstrated that there is a material issue of fact

which is broader than the Grimes’ charge.

The fact that the EEOC’s answers do not disclose the

existence of a material dispute does not end the inquiry for

the trial judge. Fed. R. Civ. Pro. 56 provides that the

judge need only consider pleadings, depositions, answers

to interrogatories, admissions on file, and affidavits, but it

does not require a party to affirmatively respond by affida-

vit or deposition to a motion for summary judgment.

See Smith v. Hudson, 600 F.2d 60, 63-65 (6th Cir. 1979).

The burden of establishing that no material fact exists

remains on the moving party. The trial judge must care-

fully examine the entire record to see if a material issue

of fact is in dispute. If sworn evidence already in the

record demonstrates the existence of a material issue of

fact, the motion for summary judgment should be denied.

The contents of the administrative file, mentioned in

KEOC’s answers to question 13, were identified by the Dis-

trict Director, Mr. Ferris, during his deposition, and copies

of all the papers in the file were attached thereto. Mr.

Ferris was the person who made the Determination of

Probable Cause mentioned in HEOC’s answer to question 6.

He testified that his inquiry was limited to the file. (Dep.,

pp. 48-49). He testified that while he was working for the

Department of Defense, he reviewed Keco’s Affirmative

Action Program and identified the exhibit as the Affirmative

Action Program he reviewed. This Affirmative Action

Program, the Regional Director’s Findings of Fact, Keco’s

Objections to the Findings of Fact, resumes of people who

7a

Appendix A-—Court of Appeals Opinion

had applied for the position of buyer at Keco, and inves-

tigative reports were among the items in the file.

A copy of the Affirmative Action Program was also

attached to the Defendant’s Motion for Reconsideration

together with an affidavit by Mr. Adair stating that at-

tached was a true copy of what was submitted to Mr. Ferris

in October and November 1970 (when he worked for the

Department of Defense) and to the officer investigating the

Grimes’ charge. He denies any sex discrimination or dis-

criminatory intent. Keco’s answer to EEOC’s interroga-

tory 16, which asked for identification of all documents

containing job descriptions or job classifications, listed the

Keeo Red Book and the Keco Affirmative Action Program.

It is thus clear from the record that the Affirmative

Action Program was a part of the sworn record. That

program, in Part VII, notes an underutilization of minor-

ities and women in the Officials and Managers and the

Office and Clerical categories, although it denies any dis-

eriminatory intent. Exhibit A to the program shows that

in the General Assembly, Electrical Assembly, and Re-

frigerator Assembly job classifications, the jobs appear

to be segregated by sex and that the female jobs start at

$.20 an hour less than the male jobs and end almost $.90

per hour less. In its objections to the Regional Director’s

Findings of Fact, Keco objected to the finding that it had

a separate and different wage rate in the assembly job

classification which was higher for males than for females.

Keco admitted the accuracy of what was stated, but in-

sisted the jobs did not involve the same work and that the

differences in pay were directly related to differences in

8a

Appendix A—Court of Appeals Opinion

work. Keco did not state whether there was a bona fide oc-

cupational qualification for making one job for males only

and one job for females only. These documents identified

in the sworn record create an issue of fact as to whether

Keco maintained a sex-segregated job classification in its

assembly operations. This claim is not adequately cov-

ered by Grimes’ complaint.

We find inexcusable the failure of the EEOC to draw to

the attention of the District Court or of this Court the

sworn evidence in the record on which it was entitled to

rely. Its answers to interrogatories should have identified

the other persons and job classifications. Its response to

the motion for summary judgment should have directed the

District Judge to the sworn evidence that supported its

position and created an issue of fact. The record in this

case is voluminous and confusing. Overburdened District

Judges should be able to rely upon counsel who are familiar

with depositions, documents, and affidavits in the file to

locate the relevant information. Nonetheless, since the

record does disclose material issues of fact, the District

Court erred in granting summary judgment. The judg-

ment is reversed and the action remanded for further

proceedings not inconsistent with this opinion. ax

9a

APPENDIX B

Judgment of Court of Appeals

(Filed March 20, 1980)

UNITED STATES COURT OF APPEALS

For rue Srxtxw Circuit

No. 77-3498

Equa EmpLoyMent OpportunIty CoMMISSION,

Plaintiff-Appellant,

v.

Keco Inpustries, Inc.,

Defendant-A ppellee.

Before: Encore. and Kennepy, Circuit Judges, and Peck,

Senior Circuit Judge.

JUDGMENT

Appgau from the United States District Court for the

Southern District of Ohio.

Tus Cause came on to be heard on the record from the

United States District Court for the Southern District of

Ohio and was argued by counsel.

On ConsipeRATION WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be and the same is hereby reversed

and the cause remanded for further proceedings.

No costs taxed.

EnrTerep By Orper oF THE CouRT

/s/ Joun P. Henman,

Clerk

10a

APPENDIX C

Court of Appeals Order Denying

Petition for Rehearing

(Filed April 18, 1980)

UNITED STATES COURT OF APPEALS

For tHe Srxtx# Crrcuir

No. 77-3498

Kava, Empitoyment Opportunity ComMIssION,

Plaintiff-Appellant,

v.

Keco Inpustries, Inc.,

Defendant-A ppellee.

Before: Encex and Kennepy, Circuit Judges, and Peck,

Senior Circuit Judge.

Upon consideration of the petition for rehearing filed

herein by defendant-appellee, the Court concludes that the

issues raised therein were fully considered upon the orig-

inal submission and decision of this case.

It Is TuEererore Orvenrep that the petition for rehearing

be and it hereby is denied.

ENTERED By Orper or tue Court

/s/ Joun P. Henman,

Clerk

lla

APPENDIX D

District Court Opinion Granting Summary Judgment

(Filed July 1, 1977)

UNITED STATES DISTRICT COURT

For tHE SoutHeRN District or OxHI0

WEsTERN Division

No. C-1-74-485

a

Lena J. GRIMEs,

Plaintiff,

v.

Keco Inpustrigs, INc.,

Defendant.

No. C-1-75-337

Equat EmpioyMENtT Opportunity CoMMISSION,

Plammtiff,

v.

Keco Inpusrrigs, Inc.,

Defendant.

rr OO

ORDER

In these consolidated actions the defendant has now re-

newed a motion for summary judgment in C-1-75-337,

The original motion (passed on and denied on February

19, 1976) was based on the assertion that once a private

suit is filed on a Title VII claim pursuant to a right to sue

letter, the EEOC may not file suit in addition but is rel-

egated to permissive statutory intervention. See EEOC v.

12a

Appendix D

District Court Opinion Granting Summary Judgment

R.R., 493 F.2d 71 (8th Cir. 1974). The denial of the motion

as originally filed was based on EEOC vy, Kimberly-Clark,

511 F.2d 1352 (6th Cir. 1975) and particularly the reasons

at page 1363.

Since then, the defendant has developed through discov-

ery (interrogatories and answers thereto) that the EEOC

investigation in connection with the Grimes matter pro-

duced nothing to warrant the allegations of the EEOC com-

plaint under consideration extending beyond the Grimes

charge.

The EEOC’s oppositiun (brief) to the renewed motion

concedes that its investigation of the Grimes charge re-

vealed nothing in addition to or broadening. It claims that

it may depend on discovery in this case.

The EEOC position seems to be beyond the scope of the

Kimberly-Clark case. As we read that decision, it author-

izes an EEOC case in addition to one filed by a charging

party if and to the extent additional charges are made,

‘‘based on its investigation’s revelations’’—or stated other-

wise, as in footnote 15 on page 1363, ‘‘to allow the EEOC

to bring suit based on the findings its investigation war-

rants.’’

In this case it now appears on the record affirmatively

that the EEOC investigations into Grimes revealed nothing

based on which the charges could be enlarged. The EEOC

asserts that the void may be filled by discovery in this case.

That it seems is broader than Kimberly-Clark.

The renewed motion for summary judgment is sustained.

/8/ Trmoruy S. Hogan

Timothy 8. Hogan

United States District Judge

13a

APPENDIX E

District Court Opinion Denying EEOC’s Motion to

Reconsider Grant of Summary Judgment

(Filed August 28, 1977)

UNITED STATES DISTRICT COURT

SoutHERN District or OnI0

WEsTERN Drvision

No. C-1-74-485

$$ —

Lena J. Grimgs,

Plaintiff,

Vv.

Keco Inpusrrirs, Inc.,

Defendant.

No. C-1-75-337

Equat EmptoyMent Oprortuntry CoMmMISsION,

Plaintiff,

Vv.

Keco Inpusrrigs, INc.,

Defendant.

ae

On July 1, 1977, this Court entered an order sustain-

ing defendant’s motion for summary judgment against the

EKEOC. The Commission moved this Court for reconsid-

eration of that order on July 15, 1977. Defendant KECO

filed a memorandum in opposition to plaintiff EEOC’s mo-

tion to reconsider on July 21, 1977.

l4a

Appendia E

District Court Opinion Denying EEOC’s Motion to

Reconsider Grant of Summary Judgment

The Court based its July 1 order on the factual differ-

ence between this case and the case of HHOC vy. Kimberly-

Clark Corp., 511 F. 2d 1352, 1363, (10 FEP cases 38 (6th

Cir. 1975). There the Court of Appeals held that the

Commission might file its own suit independent of the

private parties, rather than seek permissive intervention

into the private party’s suit, because the EEOC investiga-

tion of the private party’s charge disclosed discrimina-

tory company practices beyond the private plaintiff’s par-

ticular situation. In the case sub judice this Court found

that, since KECO’s original motion for summary judg-

ment (denied on February 19, 1976), KECO had developed

through discovery that the EEOC investigation in con-

nection with the Grimes matter had produced nothing to

warrant the allegations of the EHEOC complaint under

consideration extending beyond the Grimes charge.

Also, the Court noted that the EEOC had conceded in

its brief that its investigation revealed nothing beyond

the Grimes charge. The EEOC now asserts that the Court

misinterpreted its arguments to arrive at the conclusion

that the EEOC had thus conceded.

Be that as it may, the Court finds no reason to change

its earlier holding: 1) that KECO’s discovery has demon-

strated that the KEOC investigation of the Grimes mat-

ter has revealed nothing in addition to or broadening the

Grimes charge; and 2) that the EHOO’s assertion that

the voids may be filled by discovery goes beyond the scope

of Kimberly-Clark, supra.

The motion for reconsideration is denied.

/s/ Timotuy S. Hocan

United States District Judge

l5a

APPENDIX F

Statutes, Executive Order and Regulations Involved

42 U.S.C. § 20006¢-2:

(a) It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-5:

” * *

(f)(1) If within thirty days after a charge is filed with

the Commission or within thirty days after expiration of

any period of reference under subsection (¢c) or (d) of this

section, the Commission has been unable to secure from the

respondent a conciliation agreement acceptable to the

Commission, the Commission may bring a civil action

against any respondent not a government, governmental

agency, or political subdivision named in the charge. In

the case of a respondent which is a government, govern-

mental agency, or political subdivision, if the Commis-

l6a

Appendix F

Statutes, Executive Order and Regulations Inwolved

sion has been unable to secure from the respondent a con-

ciliation agreement acceptable to the Commission, the

Commission shall take no further action and shall refer

the case to the Attorney General who may bring a civil

action against such respondent in the appropriate United

States district court. The person or persons aggrieved

shall have the right to intervene in a civil action brought

by the Commission or the Attorney General in a case in-

volving a government, governmental agency, or political

subdivision. If a charge filed with the Commission pur-

suant to subsection (b) of this section is dismissed by the

Commission, or if within one hundred and eighty days

from the filing of such charge or the expiration of any

period of reference under subsection (c) or (d) of this

section, whichever is later, the Commission has not filed a

civil action under this section or the Attorney General has

not filed a civil action in a case involving a government, gov-

ernmental agency, or political subdivision, or the Commis-

sion has not entered into a conciliation agreement to which

the person aggrieved is a party, the Commission, or the

Attorney General in a case involving a gover: nent, gov-

ernmental agency, or political subdivision, shall so notify

the person aggrieved and within ninety days after the giv-

ing of such notice a civil action may be brought against

the respondent named in the charge (A) by the person

claiming to be aggrieved or (B) if such charge was filed by

a member of the Commission, by any person whom the

charge alleges was aggrieved by the alleged unlawful em-

ployment practice. Upon application by the complainant

and in such circumstances as the court may deem just, the

17a

Appendia F

Statutes, Executive Order and Regulations Involved

court may appoint an attorney for such complainant and

may authorize the commencement of the action without

the payment of fees, costs, or security. Upon timely ap-

plication, the court may, in its discreition, permit the Com-

mission, or the Attorney General in a case involving a

government, governmental agency, or political subdivision,

to intervene in such civil action upon certification that the

case is of general public importance. Upon request, the

court may, in its discretion, stay further proceedings for

not more than sixty days pending the termination of State

or local proceedings described in subsection (c) or (d)

of this section or further efforts of the Commission to

obtain voluntary compliance.

. * *

EXECUTIVE ORDER NO. 11246

Sept. 24, 1965, 30 Fed. Reg. 12319, as amended by Ex.Ord.

No.11375, Oct. 13, 1967, 32 Fed. Reg. 14303; Kx.Ord.No.

11478, Aug. 8, 1969, 34 Fed. Reg. 12985, reprinted in 42

U.S.C. § 2000e, at 1232 (1976)

EQUAL OPPORTUNITY IN

FEDERAL EMPLOYMENT

Under and by virtue of the authority vested in me as

President of the United States by the Constitution and stat-

utes of the United States, it is ordered as follows:

Part I—NonpDIScRIMINATION IN GOVERNMENT EMPLOYMENT

[Superseded by Ex.Ord.No.11478, Aug. 8, 1969,

34 F.R. 12985]

18a

Appendia F

Statutes, Executive Order and Regulations Involved

Part II—NonpiscriminatTion in EMPLOYMENT By

GOVERNMENT CONTRACTORS AND SUBCONTRACTORS

SUBPART A—DUTIES OF THE SECRETARY OF LABOR

Sec. 201. The Secretary of Labor shall be responsible

for the administration of Parts II and III of this Order and

shall adopt such rules and regulations and issue such orders

as he deems necessary and appropriate to achieve the pur-

poses thereof.

SUBPART B—CONTRACTORS’ AGREEMENTS

Sec. 202. Except in contracts exempted in accordance

with Section 204 of this Order, all Government contracting

agencies shall include in every Government contract here-

after entered into the following provisions:

‘*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 natural origin. The contractor will

take affirmative action to ensure that applicants are em-

ployed, and that employees are treated during employment,

without regard to their race, color, religion, sex or natural

origin. Such action shall include, but not be limited to the

following: employment, upgrading, demotion, or transfer;

recruitment or recruitment advertising; layoff or termina-

tion; rates of pay or other forms of compensation; and

selection for training, including apprenticeship. The con-

tractor agrees to post in conspicuous places, available to

employees and applicants for employment, notices to be

19a

Appendia F

Statutes, Executive Order and Regulations Involved

provided by the contracting officer setting forth the provi-

sions of this nondiscrimination clause.

‘¢(2) The contractor will, in all solicitations or adver-

tisements for employees placed by or on behalf of the con-

tractor, state that all qualified applicants will receive con-

sideration for employment without regard to race, color,

religion, sex or natural origin.

‘¢(3) The contractor will send to each labor union or

representative of workers with which he has a collective bar-

gaining agreement or other contract or understanding, a

notice, to be provided by the agency contracting officer, ad-

vising the labor union or workers’ representative of the

contractor’s commitments under Section 202 of Executive

Order No. 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 No. 11246 of Sept. 24, 1965, and of the

rules, regulations, and relevant orders of the Secretary of

Labor.

‘¢(5) The contractor will furnish all information and re-

ports required by Executive Order No. 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 investi-

gation to ascertain compliance with such rules, regulations,

and orders.

20a

Appendix F

Statutes, Executive Order and Regulations Involved

‘*(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

cancelled, terminated or suspended in whole or in part and

the contractor may be declared ineligible tor Tttrther Gov-

ernment contracts in accordance with procedures authorized

in Executive Order No. 11246 of Sept. 24, 1965, and such

other sanctions may be imposed and remedies invoked ~

as provided in Executive Order No. 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 Para-

graphs (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 Execu-

tive Order No. 11246 of Sept. 24, 1965, so that such provi-

sions will be binding upon each subcontractor or vendor.

The contractor will take such action with respect to any sub-

contract or purchase order as the contracting agency may

direct as a means of enforcing such provisions including

sanctions for noncompliance: Provided, however, That in

the event the contractor becomes involved in, or is threat-

ened with, litigation with a subcontractor or vendor as a

result of such direction by the contracting agency, the con-

tractor may request the United States to enter into such

litigation to protect the interests of the United States.’’

See. 203. (a) Each contractor having a contract con-

taining the provisions prescribed in Section 202 shall file,

and shall cause each of his subcontractors to file, Compli-

2la

Appendia F

Statutes, Executive Order and Regulations Involved

ance Reports with the contracting agency or the Secretary

of Labor as may be directed. Compliance Reports shall be

filed within such times and shall contain such information

as to the practices, policies, programs, and employment

policies, programs, and employment statisties of the con-

tractor and each subcontractor, and shall be in such form,

as the Secretary of Labor may prescribe.

(b) Bidders or prospective contractors or subcontrac-

tors may be required to state whether they have partic-

ipated in any previous contract subject to the provisions

of this Order, or any preceding similar Executive order,

and in that event to submit, on behalf of themselves and

their proposed subcontractors, Compliance Reports prior

to or as an initial part of their bid or negotiation of a con-

tract.

(c) Whenever the contractor or subcontractor has a

collective bargaining agreement or other contract or under-

standing with a labor union or an agency referring work-

ers or providing or supervising apprenticeship or training

for such workers, the Compliance Report shall include such

information as to such labor union’s or agency’s practices

and policies affecting compliance as the Secretary of

Labor may prescribe: Provided, That to the extent such

information is within the exclusive possession of a labor

union or an agency referring workers or providing or

supervising apprenticeship or training and such labor

union or agency shall refuse to furnish such information

to the contractor, the contractor shall so certify to the con-

tracting agency as part of its Compliance Report and shall

22a

Appendia F

Statutes, Executive Order and Regulations Involved

set forth what effort he has made to obtain such informa-

tion.

(d) The contracting agency or the Secretary of Labor

may direct that any bidder or prospective contractor or

subcontractor shall submit, as part of his Compliance

Report, a statement in writing, signed by an authorized

officer or agent on behalf of any labor union or any agency

referring workers or providing or supervising apprentice-

ship or other training, with which the bidder or prospective

contractor deals, with supporting information to the ef-

fect that the signer’s practices and policies do not discrim-

inate on the grounds of race, color, religion, sex or na-

tional origin, and that the signer either will affirmatively co-

operate in the implementation of the policy and provisions

of this order or that it consents and agrees that recruit-

ment, employment, and the terms and conditions of em-

ployment under the proposed contract shall be in accord-

ance with the purposes and provisions of the order. In

the event that the union, or the agency shall refuse to ex-

ecute such a statement, the Compliance Report shall so

certify and set forth what efforts have been made to secure

such a statement and such additional factual material as

the contracting agency or the Secretary of Labor may

require.

Sec. 204. The Secretary of Labor may, when he deems

that special circumstances in the national interest so re-

quire, exempt a contracting agency from the requirement

of including any or all of the provisions of Section 202 of

this Order in any specific contract, subcontract, or purchase

23a

Appendia F

Statutes, Yxecutive Order and Regulations Involved

order. The Secretary of Labor may, by rule or regula-

tion, also exempt certain classes of contracts, subcontracts,

or purchase orders (1) whenever work is to be or has been

performed outside the United States and no recruitment

of workers within the limits of the United States is in-

volved; (2) for standard commercial supplies or raw mate-

rials; (3) involving less than specified amounts of money or

specified numbers of workers; or (4) to the extent that they

involve subcontracts below a specified tier. The Secretary

of Labor may also provide, by rule, regulation, or order,

for the exemption of facilities of a contractor which are

in all respects separate and distinct from activities of

the contractor related to the performance of the con-

tract: Provided, That such an exemption will not in-

terfere with or impede the effectuation of the purposes of

this Order: And provided further, That in the absence

of such an exemption all facilities shall be covered by the

provisions of this Order.

SUBPART C—-POWERS AND DUTIES OF THE SECRETARY OF LABOR

AND THE CONTRACTING AGENCIES

Sec. 205. Each contracting agency shall be primarily re-

sponsible for obtaining compliance with the rules, regula-

tions, and orders of the Secretary of Labor with respect

to contracts entered into by such agency or its contractors.

All contracting agencies shall comply with the rules of

the Secretary of Labor in discharging their primary re-

sponsibility for securing compliance with the provisions

of contracts and otherwise with the terms of this Order

24a

Appendix F

Statutes, Executive Order and Regulations Involved

and of the rules, regulations, and orders of the Secretary

of Labor issued pursuant to this Order. They are directed

to cooperate with the Sepretary of Labor and to furnish the

Secretary of Labor such information and assistance as he

may require in the performance of his functions under this

Order. They are further directed to appoint or designate,

from among the agency’s personnel, compliance officers.

It shall be the duty of such officers to seek compliance with

the objectives of this Order by conference, conciliation,

mediation, or persuasion.

Sec. 206. (a) The Secretary of Labor may investigate

the employment practices of any Government contractor or

subcontractor, or initiate such investigation by the appro-

priate contracting agency, to determine whether or not

the contractual provisions specified in Section 202 of this

Order have been violaied. Such investigation shall be

conducted in accordance with the procedures established

by the Secretary of Labor agd the investigating agency

shall report to the Secretary of Labor any action taken or

recommended.

(b) The Secretary of Labor may receive and investigate

or cause to be investigated complaints by employees or

prospective employees of a Government contractor or sub-

contractor which allege discrimination contrary to the con-

tractual provisions specified in Section 202 of this Order.

If this investigation is conducted for the Seedetary of

Labor by a contracting agency, that agency shall report to

the Secretary what action has been taken or is recom-

mended with regard to such complaints.

25a

Appendia F

Statutes, Executive Order and Regulations Involved

See. 207. The Secretary of Labor shall use his best

efforts, directly and through contracting agencies, other in-

terested Federal, State, and local agencies, contractors,

and all other available instrumentalities to cause any labor

union engaged in work under Government contracts or any

agency referring workers or providing or supervising ap-

prenticeship or training for or in the course of such work

to cooperate in the implementation of the purposes of this

Order. The Secretary of Labor shall, in appropriate cases,

notify the Equal Employment Opportunity Commission,

the Department of Justice, or other appropriate Federal

agencies whenever it has reason to believe that the prac-

tices of any such labor organization or agency violate

Title VI or Title VII of the Civil Rights Act of 1964 or

other provision of Federal law.

See. 208. (a) The Secretary of Labor, or any agency,

officer, or employee in the executive branch of the Govern-

ment designated by rule, regulation, or order of the Secre-

tary, may hold such hearings, public or private, as the Sec-

retary may deem advisable for compliance, enforcement, or

educational purposes.

(b) The Secretary of Labor may hold, or cause to be

held, hearings in accordance with Subsection (a) of this

Section prior to imposing, ordering, or recommending the

imposition of penalties and sanctions under this Order.

No order for debarment of any contractor from further

Government contracts under Section 209(a)(6) shall be

made without affording the contractor an opportunity for

a hearing.

26a

Appendia F

Statutes, Executive Order and Regulations Involved

SUBPART D—SANCTIONS AND PENALTIES

See. 209. (a) In accordance with such rules, regula-

tions, or orders as the Secretary of Labor may issue or

adopt, the Secretary or the appropriate contracting agency

may:

(1) Publish, or cause to be published, the names of

contractors or unions which it has concluded have com-

plied or have failed to comply with the provisions of this

Order or of the rules, regulations, and orders of the

Secretary of Labor.

(2) Recommend to the Department of Justice that, in

cases in which there is substantial or material violation

or the threat of substantial or material violation of the

contractual provisions set forth in Section 202 of this

Order, appropriate proceedings be brought to enforce those

provisions, including the enjoining, within the limitations of

applicable law, of organizations, individuals, or groups

who prevent directly or indirectly, or seek to prevent di-

rectly or indirectly, compliance with the provisions of this

Order.

(3) Recommend to the Equal Employment Opportunity

Commission or the Department of Justice that appropriate

proceedings be instituted under Title VII of the Civil

Rights Act of 1964.

(4) Recommend to the Department of Justice that

criminal proceedings be brought for the furnishing of false

information to any contracting agency or to the Secretary

of Labor as the case may be.

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(5) Cancel, terminate, suspend, or cause to be cancelled,

terminated, or suspended, any contract, or any portion or

portions thereof, for failure of the contractor or subcon-

tractor to comply with the nondiscrimination provisions of

the contract. Contracts may be cancelled, terminated, or

suspended absolutely or continuance of contracts may be

conditioned upon a program for future compliance ap-

proved by the contracting agency.

(6) Provide that any contracting agency shall refrain

from entering into further contracts, or extensions or other

modifications of existing contracts, with any noncomplying

contractor, until such contractor has satisfied the Secretary

of Labor that such contractor has established and will carry

out personnel and employment policies in compliance with

the provisions of this Order.

(b) Under rules and regulations prescribed by the Sec-

retary of Labor, each contracting agency shall make reason-

able efforts within a reasonable time limitation to secure

compliance with the contract provisions of this Order by

methods of conference, conciliation, mediation, and persua-

sion before proceedings shall be instituted under Subsec-

tion (a)(2) of this Section, or before a contract shall be

cancelled or terminated in whole or in part under Subsec-

tion (a)(5) of this Section for failure of a contractor or

subcontractor to comply with the contract provisions of

this Order.

See. 210. Any contracting agency taking any action au-

thorized by this Subpart, whether on its own motion, or as

directed by the Secretary of Labor, or under the rules and

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Appendix F

Statutes, Executive Order and Regulations Involved

regulations of the Secretary, shall promptly notify the See-

cretary of such action. Whenever the Secretary of Labor

makes a determination under this Section, he shall promptly

notify the appropriate contracting agency of the action rec-

ommended. The agency shall take such action and shall

report the results thereof to the Secretary of Labor within

sach time as the Secretary shall specify.

Sec. 211. If the Secretary shall so direct, contracting

agencies shall not enter into contracts with any bidder or

prospective contractor unless the bidder or prospective con-

tractor has satisfactorily complied with the provisions of

this Order or submits a program for compliance acceptable

to the Secretary of Labor or, if the Secretary so authorizes,

to the contracting agency.

Sec. 212. Whenever a contracting agency cancels or

terminates a contract, or whenever a contractor has been

debarred from further Government contracts, under Sec-

tion 209(a)(6) because of noncompliance with the contract

provisions with regard to nondiscrimination, the Secretary

of Labor, or the contracting agency involved, shall promptly

notify the Comptroller General of the United States, Any

such debarment may be rescinded by the Secretary of Labor

or by the contracting agency which imposed the sanction.

[Sections 213-15 and Parts III and IV

not reproduced]

29a

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Statutes, Executive Order and Regulations Involved

Secretary of Labor’s Regulations Concerning Federal

Contract Compliance and Equal Employment

Opportunity, 41 C.F.R. Part 60 (1971)

41 C.F.R. PART 60-1—OBLIGATIONS OF

CONTRACTORS AND SUBCONTRACTORS

Subpart A—Preliminary Matters; Equal Opportunity

Clause; Compliance Reports

* * *

§ 60-1.6 Duties of agencies.

(a) General responsibility. Each agency shall be pri-

marily responsible for obtaining compliance with the equal

opportunity clause, the order, the regulations in this part,

and orders issued pursuant thereto. Each agency shall co-

operate with the Director and shall furnish him such infor-

mation and assistance as he may require in the performance

of his functions under the order. Such information shall

include compliance review reports, schedules of compliance

reviews and any other information relevant to the adminis-

tration of the order.

(b) Agency program. The head of each agency shall,

subject to the prior approval of the Director, establish a

program and promulgate procedures to carry out the

agency’s responsibilities for obtaining compliance with the

order and regulations and orders issued pursuant thereto.

Kach agency head shall also designate a Contract Compli-

ance Officer, who (unless otherwise approved by the Direc-

tor) shall be appointed by the head of the agency from

among the agency’s executive personnel to whom the Ex-

30a

Appendia F

Statutes, Executive Order and Regulations Involved

ecutive Schedule applies, and such officer shall be subject to

the immediate supervision of the head of the agency. All

compliance reviews required pursuant to the regulations

in this part and such other compliance reviews as the Con-

tract Compliance Officer determines to be appropriate shall

be conducted by him or his designee. The head of the

agency or the Contract Compliance Officer may also desig-

nate a Deputy Contract Compliance Officer to assist the

Contract Compliance Officer in the performance of his

duties. The names of the Contract Compliance Officers and

the Deputy Contract Compliance Officers, their addresses

and telephone numbers, and any changes made in their

designation shall be furnished to the Director.

* * *

Subpart C—Ancillary Matters

§ 60-1.40 Affirmative action compliance programs.

(a) Requirements of programs. Each agency or appli-

cant shall require each prime contractor who has 50 or

more employees and a contract of $50,000 or more and each

prime contractor and subcontractor shall require each sub-

contractor who has 50 or more employees and a subcontract

of $50,000 or more to develop a written affirmative com-

pliance program for each of its establishments. A neces-

sary prerequisite to the development of a satisfactory af-

firmative action program is the identification and analysis

of problem areas inherent in minority employment and an

evaluation of opportunities for utilization of minority

group personnel. The contractor’s program shall provide

in detail for specific steps to guarantee equal employment

3la

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Statutes, Executive Order and Regulations Involved

opportunity keyed to the problems and needs of members

of minority groups, including, when there are deficiencies,

the development of specific goals and time tables for the

prompt achievement of full and equal employment oppor-

tunity. Each contractor shall include in his affirmative

action compliance program a table of job classifications.

This table should include but need not be limited to job

titles, principal duties (and auxiliary duties, if any), rates

of pay, and where more than one rate of pay applies (be-

cause of length of time in the job or other factors) the ap-

plicable rates. The affirmative action compliance program

shall be signed by an executive official of the contractor.

(b) Utilization evaluation. The evaluation of utiliza-

tion of minority group personnel shall include the fol-

lowing:

(1) An analysis of minority group representation in

all job categories.

(2) An analysis of hiring practices for the past year,

including recruitment sources and testing, to determine

whether equal employment opportunity is being afforded

in all job categories.

(3) An analysis of upgrading, transfer and promotion

for the past year to determine whether equal employment

opportunity is being afforded.

(c) Maintenance of programs. Within 120 days from

the commencement of the contract, each contractor shall

maintain a copy of separate affirmative action compliance

programs for each establishment, including evaluations of

32a

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Statutes, Executive Order and Regulations Involved

utilization of minority group personnel and the job classi-

fication tables, at each local office responsible for the per-

sonnel matters of such establishment. An affirmative action

compliance program shall be part of the manpower and

training plans for each new establishment and shall be de-

veloped and made available prior to the staffing of such

establishment. A report of the results of such program

shall be compiled annually and the program shall be up-

dated at that time. This information shall be made avail-

able to representatives of the agency or Director upon re-

quest and the contractor’s affirmative action program and

the result it produces shall be evaluated as part of com-

pliance review activities.

41 C.F.R. PART 60-2—AFFIRMATIVE ACTION

PROGRAMS [ORDER NO. 4]

Subpart A—General

§ 60-2.1 Title, purpose and scope.

This part shall also be known as ‘‘Order No. 4,’’ and

shall cover nonconstruction contractors. Section 60-1.40

of this chapter, Affirmative Action Compliance Programs,

requires that within 120 days from the commencement of

a contract each prime contractor or subcontractor with 50

or more employees and a contract of $50,000 or more de-

velop a written affirmative action compliance program for

each of its establishments. A review of agency compliance

surveys indicates that many contractors do not have af-

firmative action programs on file at the time an establish-

ment is visited by a compliance investigator. This part

33a

Appendix F

Statutes, Executive Order and Regulations Involved

details the agency review procedure and the results of a

contractor’s failure to develop and maintain an affirmative

action program and then sets forth detailed guidelines to

be used by contractors and Government agencies in devel-

oping and judging these programs as well as the good faith

effort required to transform the programs from paper

commitments to equal employment opportunity.

§ 60-2.2 Agency action.

(a) Any contractor required by § 60—1.40 to develop an

affirmative action program at each of his establishments

who has not complied fully with that section is not in com-

pliance with Executive Order 11246 (30 F.R. 12319). Until

such programs are developed and found to be acceptable in

accordance with the standards and guidelines set forth in

§§ 60-2.10 through 60-2.31, the contractor is unable to

comply with the equal employment opportunity clause.

(b) If, in determining such contractor’s responsibility

for an award of a contract it comes to the contracting off-

cer’s attention, through sources within his agency or

through the Office of Federal Contract Compliance or other

Government agencies, that the contractor has not developed

an acceptable affirmative action program at each of his

establishments, the contracting officer shall declare the con-

tractor-bidder nonresponsible unless he can otherwise af-

firmatively determine that the contractor is able to comply

with his equal employment obligations: Provided, That

during the preaward conferences provided for in § 60-1.6

(d)(3), every effort shall be made through the processes of

conciliation, mediation and persuasion to develop an ac-

34a

Appendix F

Statutes, Executive Order and Regulations Involved

ceptable affirmative action program meeting the standards

and guidelines set forth in §§ 60-2.10 through 60-2.31 so

that, in the performance of his contract, the contractor is

able to meet his equal employment obligations in accordance

with the equal opportunity clause and applicable rules, reg-

ulations and orders: Provided further, That when the con-

tractor-bidder is declared nonresponsible more than once

for inability to comply with the equal employment oppor-

tunity clause a notice setting a timely hearing date shall be

issued concurrently with the second nonresponsibility de-

termination in accordance with the provisions of § 60-1.26

proposing to declare such contractor-bidder ineligible for

future contracts and subcontracts.

(c) Immediately upon finding that a contractor has no

affirmative action program or that his program is not ac-

ceptable the contracting officer shall notify officials of the

appropriate compliance agency and the Office of Federal

Contract Compliance of such fact. The compliance agency

shall issue a notice to the contractor giving him 30 days to

show cause why enforcement proceedings under section

209(b) of Executive Order 11246, as amended, should not

be instituted.

(1) If the contractor fails to show good cause for his

failure or fails to remedy that failure by developing and

implementing an acceptable affirmative action program

within 30 days, the compliance agency, upon the approval

of the Director, shall issue a notice of proposed cancellation

or termination of existing contracts or subcontracts and

debarment from future contracts and subcontracts pursuant

35a

Appendia F

Statutes, Executive Order and Regulations Involved

to § 60-1.26(b), giving the contractor 10 days to request a

hearing. If a request for hearing has not been received

within 10 days from such notice, such contractor will be

declared ineligible for future contracts and current con-

tracts will be terminated for default.

(2) During the ‘‘show cause’’ period of 30 days every

effort shall be made by the compliance agency through con-

ciliation, mediation and persuasion to resolve the deficien-

cies which led to the determination of noncompliance or

nonresponsibility. If satisfactory adjustments designed to

bring the contractor into compliance are not concluded, the

compliance agency, with the prior approval of the Director,

shall promptly commence formal proceedings leading to the

cancellation or termination of existing contracts or subcon-

tracts and debarments from future contracts and subcon-

tracts under § 60—1.26(b).

(d) During the ‘‘show cause’’ period and formal pro-

ceedings, each contracting agency must continue to deter-

mine the contractor’s responsibility in considering whether

or not to award a new or additional contract.

Subpart B—Required Contents of

Affirmative Action Programs

§ 60-2.10 Purpose of affirmative action program.

An affirmative action program is a set of specific and

result-oriented procedures to which a contractor commits

himself to apply every good faith effort. The objective of

those procedures plus such efforts is equal employment op-

portunity. Procedures without effort to make them work

36a

Appendix F

Statutes, Executive Order and Regulations Involved

are meaningless; and effort, undirected by specific and

meaningful procedures, is inadequate. An acceptable af-

firmative action program must include an analysis of areas

within which the contractor is deficient in the utilization of

minority groups and, further, goals and timetables to which

the contractor’s good faith efforts must be directed to cor-

rect the deficiencies and, thus to increase materially the uti-

lization of minorities at all levels and in all segments of his

work force where deficiencies exist.

§ 60-2.11 Required utilization analysis and goals.

Affirmative action programs must contain the following

information:

(a) An analysis of all major job categories at the fa-

cility, with explanations if minorities are currently being

under-utilized in any one or more job categories (job ‘‘cat-

egory’’ herein meaning one or a group of jobs having sim-

ilar content, wage rates and opportunities). ‘‘Underutili-

zation’? is defined as having fewer minorities in a particular

job category than would reasonably be expected by their

availability. In determining whether minorities are being

underutilized in any job category, the contractor will con-

sider at least all of the following factors:

(1) The minority population of the labor area surround-

ing the facility ;

(2) The size of the minority unemployment force in the

labor area surrounding the facility ;

(3) The percentage of minority work force as compared

with the total work force in the immediate labor area;

37a

Appendix F

Statutes, Executive Order and Regulations Involved

(4) The general availability of minorities having requi-

site skills in the immediate labor area;

(5) The availability of minorities having requisite skills

in an area in which the contractor can reasonably recruit;

(6) The availability of promotable minority employees

within the contractor’s organization;

(7) The anticipated expansion, contraction and turn-

over of and in the work force;

(8) The existence of training institutions capable of

training minorities in the requisite skills; and

(9) The degree of training which the contractor is rea-

sonably able to undertake as a means of making all job

classes available to minorities.

(b) Goals, timetables and affirmative action commit-

ments must be designed to correct any identifiable deficien-

cies. Where deficiencies exist and where numbers or per-

centages are relevant in developing corrective action, the

contractor shall establish and set forth specific goals and

timetables. Such goals and timetables, with supporting

data and the analysis thereof shall be a part of the con-

tractor’s written affirmative action program and shall be

maintained at each establishment of the contractor. Where

the contarctor has not established a goal his written affirma-

tive action program must specifically analyze each of the

factors listed in ‘‘a’’ above and must detail his reason for

a lack of a goal. In establishments with over 1,000 em-

ployees, or where otherwise appropriate, goals and time-

38a

Appendia F

Statutes, Executive Order and Regulations Involved

tables may be presented by organizational unit. The goals

and timetables should be attainable in terms of the con-

tractor’s analysis of his deficiencies and his entire affirma-

tive action program. Thus, in establishing his goals and

timetables the contractor should consider the results which

could be reasonably expected from his good faith efforts to

make his overall affirmative action program work. If he

does not meet his goals and timetables, the contractor’s

‘good faith efforts’’ shall be judged by whether he is fol-

lowing his program and attempting to make it work toward

the attainment of his goals.

(c) Support data for the above analysis and program

shall be compiled and maintained as part of the contractor’s

affirmative action program. This data should include pro-

gression line charts, seniority rosters, applicant flow data,

and applicant rejection ratios indicating minority status.

(d) Based upon the Government’s experience with com-

pliance reviews under the Executive order programs and

the contractor reporting system, over the past eight (8)

years, minority groups are most likely to be underutilized

in the following six (6) categories as defined by the Em-

ployer’s Information Report, KEO-1: officials and man-

agers, professionals, technicians, sales workers, office and

clerical, and craftsmen (skilled). Therefore, the contractor

shall direct special attention to these categories in his anal-

ysis and goal setting.

39a

Appendix F

Statutes, Executive Order and Regulations Involved

§ 60-2.12 Additional required ingredients of affirmative

action programs.

Effective and affirmative action programs shall contain,

but not necessarily be limited to, the following ingredients:

(a) Development or reaffirmation of the contractor’s

equal employment opportunity policy in all personnel ac-

tions.

(b) Formal internal and external dissemination of the

contractor’s policy.

(c) Establishment of responsibilities for implementa-

tion of the contractor’s affirmative action program.

(d) Identification of problem areas (deficiencies) by

organizational units and job categories.

(e) Establishment of goals and objectives by organiza-

tional units and job category, including timetables for

completion.

(f) Development and execution of action oriented pro-

grams designed to eliminate problems and further designed

to attain established goals and objectives.

(g) Design and implementation of internal audit and

reporting systems to measure effectiveness of the total

program.

(h) Active support of local and national community ac-

tion programs.

40a

Appendix F

Statutes, Executive Order and Regulations Involved

§ 60-2.13 Compliance status.

No contractor’s compliance status shall be judged alone

by whether or not he reaches his goals and meets his time-

tables. Rather each contractor’s compliance posture shall

be reviewed and determined by reviewing the contents of

his program, the extent of his adherence to his program,

and his good faith efforts to make his program work toward

the realization of the program’s goals within the timetables

set for completion. There follows an outline of suggestions

and examples of procedures that contractors and federal

agencies may use as guidelines for establishing, implement-

ing, and judging an acceptable affirmative action program.

Subpart C—Suggested Method of Implementing the

Requirements of Subpart B

§ 60-2.20 Development or reaffirmation of the equal em-

ment opportunity policy.

(a) The contractor’s policy statement should indicate

the chief executive officers’ attitude on the subject matter,

assign overall responsibility and provide for a reporting

or monitoring procedure. Specific items to be mentioned

should include, but not limited to:

(1) Recruit, hire, and promote all job classifications

without regard to race, color, religion, sex, or national

origin, except where sex is a bona fide occupational qual-

ification.

(2) Base decisions on employment so as to further the

principle of equal employment opportunity.

4la

Appendix F

Statutes, Executive Order and Regulations Involved

(3) Insure that promotion decisions are in accord with

principles of equal employment opportunity by imposing

only valid requirements for promotional opportunities.

(4) Insure that all other personnel actions such as com-

pensation, benefits, transfers, layoffs, return from layoff,

company sponsored training, education, tuition assistance,

social and recreation programs, will be administered with-

out regard to race, color, religion, sex, or national origin,

except where sex is a bona fide occupational qualification.

(b) The contractor should periodically conduct analyses

of all personnel actions to insure equal opportunity.

[$$ 60-2.21 to 2.30 not reproduced]