Executive Order 11246--Equal employment opportunity
Source: The provisions of Executive Order 11246 of Sept. 24, 1965,
appear at 30 FR 12319, 12935, 3 CFR, 1964-1965 Comp., p. 339, unless otherwise
noted.
Under and by virtue of the authority vested in me as President of the United
States by the Constitution and statutes of the United States, it is ordered as
follows:
Part I--Nondiscrimination in Government Employment
[Part I superseded by Executive Order 11478 of Aug. 8, 1969, 34 FR 12985, 3
CFR, 1966-1970 Comp., p. 803]
Part II--Nondiscrimination 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 and enforcement of Parts II and III of this Order. The Secretary
shall adopt such rules and regulations and issue such orders as are deemed
necessary and appropriate to achieve the purposes of Parts II and III of this
Order.
[Sec. 201 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
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 hereafter 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 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 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 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 reports 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 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 cancelled, 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 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 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 No. 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 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."
[Sec. 202 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3
CFR, 1966-1970 Comp., p. 684; Executive Order 12086 of Oct. 5, 1978, 43 FR
46501, 3 CFR, 1978 Comp., p. 230]
Sec. 203. (a) Each contractor having a contract containing the provisions
prescribed in Section 202 shall file, and shall cause each of his
subcontractors to file, Compliance 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 statistics of the
contractor and each subcontractor, and shall be in such form, as the Secretary
of Labor may prescribe.
(b) Bidders or prospective contractors or subcontractors may be required to
state whether they have participated 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 contract.
(c) Whenever the contractor or subcontractor has a collective bargaining
agreement or other contract or understanding with a labor union or an agency
referring workers 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 Secretary of Labor as part of its Compliance
Report and shall set forth what efforts he has made to obtain such information.
(d) 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 apprenticeship or
other training, with which the bidder or prospective contractor deals, with
supporting information, to the effect that the signer's practices and policies
do not discriminate on the grounds of race, color, religion, sex or national
origin, and that the signer either will affirmatively cooperate in the
implementation of the policy and provisions of this order or that it consents
and agrees that recruitment, employment, and the terms and conditions of
employment under the proposed contract shall be in accordance with the purposes
and provisions of the order. In the event that the union, or the agency shall
refuse to execute 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 Secretary of Labor may require.
[Sec. 203 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3
CFR, 1966-1970 Comp., p. 684.; Executive Order 12086 of Oct. 5, 1978, 43 FR
46501, 3 CFR, 1978 Comp., p. 230]
Sec. 204. The Secretary of Labor may, when he deems that special
circumstances in the national interest so require, 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 order. The
Secretary of Labor may, by rule or regulation, 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 involved; (2) for standard commercial
supplies or raw materials; (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 contract: Provided, That such an exemption
will not interfere 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. The Secretary of Labor shall be responsible for securing
compliance by all Government contractors and subcontractors with this Order and
any implementing rules or regulations. All contracting agencies shall comply
with the terms of this Order and any implementing rules, regulations, or orders
of the Secretary of Labor. Contracting agencies shall cooperate with the
Secretary of Labor and shall furnish such information and assistance as the
Secretary may require.
[Sec. 205 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 206. (a) The Secretary of Labor may investigate the employment
practices of any Government contractor or subcontractor to determine whether or
not the contractual provisions specified in Section 202 of this Order have been
violated. Such investigation shall be conducted in accordance with the
procedures established by the Secretary of Labor.
(b) The Secretary of Labor may receive and investigate complaints by employees
or prospective employees of a Government contractor or subcontractor which
allege discrimination contrary to the contractual provisions specified in
Section 202 of this Order.
[Sec. 206 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 207. The Secretary of Labor shall use his best efforts, directly
and through interested 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 apprenticeship 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 practices 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.
[Sec. 207 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 208. (a) The Secretary of Labor, or any agency, officer, or
employee in the executive branch of the Government designated by rule,
regulation, or order of the Secretary, may hold such hearings, public or
private, as the Secretary 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.
Subpart D--Sanctions and Penalties
Sec. 209. (a) In accordance with such rules,
regulations, or orders as the Secretary of Labor may issue or adopt, the
Secretary may:
(1) Publish, or cause to be
published, the names of contractors or unions which it has concluded have
complied 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 directly 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.
(5) After consulting with the
contracting agency, direct the contracting agency to 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 subcontractor
to comply with equal employment opportunity 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 approved
by the Secretary of Labor.
(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) Pursuant to rules and regulations prescribed by the
Secretary of Labor, the Secretary shall make reasonable efforts, within a
reasonable time limitation, to secure compliance with the contract provisions
of this Order by methods of conference, conciliation, mediation, and persuasion
before proceedings shall be instituted under subsection (a)(2) of this Section,
or before a contract shall be cancelled or terminated in whole or in part under
subsection (a)(5) of this Section.
[Sec. 209 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 210. Whenever the Secretary of Labor makes a determination under
Section 209, the Secretary shall promptly notify the appropriate agency. The
agency shall take the action directed by the Secretary and shall report the
results of the action it has taken to the Secretary of Labor within such time
as the Secretary shall specify. If the contracting agency fails to take the
action directed within thirty days, the Secretary may take the action directly.
[Sec. 210 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
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 contractor has satisfactorily complied with the
provisions of this Order or submits a program for compliance acceptable to the
Secretary of Labor.
[Sec. 211 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 212. When a contract has been cancelled or terminated under
Section 209(a)(5) or a contractor has been debarred from further Government
contracts under Section 209(a)(6) of this Order, because of noncompliance with
the contract provisions specified in Section 202 of this Order, the Secretary
of Labor shall promptly notify the Comptroller General of the United States.
[Sec. 212 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Subpart E--Certificates of Merit
Sec. 213. The Secretary of Labor may provide for issuance of a United
States Government Certificate of Merit to employers or labor unions, or other agencies
which are or may hereafter be engaged in work under Government contracts, if
the Secretary is satisfied that the personnel and employment practices of the
employer, or that the personnel, training, apprenticeship, membership,
grievance and representation, upgrading, and other practices and policies of
the labor union or other agency conform to the purposes and provisions of this
Order.
Sec. 214. Any Certificate of Merit may at any time be suspended or
revoked by the Secretary of Labor if the holder thereof, in the judgment of the
Secretary, has failed to comply with the provisions of this Order.
Sec. 215. The Secretary of Labor may provide for the exemption of any
employer, labor union, or other agency from any reporting requirements imposed
under or pursuant to this Order if such employer, labor union, or other agency
has been awarded a Certificate of Merit which has not been suspended or
revoked.
Part III--Nondiscrimination Provisions in Federally Assisted Construction
Contracts
Sec. 301. Each executive department and agency which administers a
program involving Federal financial assistance shall require as a condition for
the approval of any grant, contract, loan, insurance, or guarantee thereunder,
which may involve a construction contract, that the applicant for Federal
assistance undertake and agree to incorporate, or cause to be incorporated,
into all construction contracts 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 such grant, contract, loan, insurance, or guarantee, or
undertaken pursuant to any Federal program involving such grant, contract,
loan, insurance, or guarantee, the provisions prescribed for Government
contracts by Section 202 of this Order or such modification thereof, preserving
in substance the contractor's obligations thereunder, as may be approved by the
Secretary of Labor, together with such additional provisions as the Secretary
deems appropriate to establish and protect the interest of the United States in
the enforcement of those obligations. Each such applicant shall also undertake
and agree (1) to assist and cooperate actively with the Secretary of Labor in
obtaining the compliance of contractors and subcontractors with those contract
provisions and with the rules, regulations and relevant orders of the
Secretary, (2) to obtain and to furnish to the Secretary of Labor such
information as the Secretary may require for the supervision of such
compliance, (3) to carry out sanctions and penalties for violation of such
obligations imposed upon contractors and subcontractors by the Secretary of
Labor pursuant to Part II, Subpart D, of this Order, and (4) to refrain from
entering into any contract subject to this Order, or extension or other
modification of such a contract with a contractor debarred from Government
contracts under Part II, Subpart D, of this Order.
[Sec. 301 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 302. (a) "Construction contract" as used in this Order
means any contract for the construction, rehabilitation, alteration,
conversion, extension, or repair of buildings, highways, or other improvements
to real property.
(b) The provisions of Part II of this Order shall apply to such construction
contracts, and for purposes of such application the administering department or
agency shall be considered the contracting agency referred to therein.
(c) The term "applicant" as used in this Order means an applicant for
Federal assistance or, as determined by agency regulation, other program
participant, with respect to whom an application for any grant, contract, loan,
insurance, or guarantee is not finally acted upon prior to the effective date
of this Part, and it includes such an applicant after he becomes a recipient of
such Federal assistance.
Sec. 303. (a) The Secretary of Labor shall be responsible for
obtaining the compliance of such applicants with their undertakings under this
Order. Each administering department and agency is directed to cooperate with
the Secretary of Labor and to furnish the Secretary such information and
assistance as the Secretary may require in the performance of the Secretary's
functions under this Order.
(b) In the event an applicant fails and refuses to comply with the applicant's
undertakings pursuant to this Order, the Secretary of Labor may, after
consulting with the administering department or agency, take any or all of the
following actions: (1) direct any administering department or agency to cancel,
terminate, or suspend in whole or in part the agreement, contract or other
arrangement with such applicant with respect to which the failure or refusal
occurred; (2) direct any administering department or agency to refrain from
extending any further assistance to the applicant under the program with
respect to which the failure or refusal occurred until satisfactory assurance
of future compliance has been received by the Secretary of Labor from such
applicant; and (3) refer the case to the Department of Justice or the Equal
Employment Opportunity Commission for appropriate law enforcement or other
proceedings.
(c) In no case shall action be taken with respect to an applicant pursuant to
clause (1) or (2) of subsection (b) without notice and opportunity for hearing.
[Sec. 303 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 304. Any executive department or agency which imposes by rule,
regulation, or order requirements of nondiscrimination in employment, other
than requirements imposed pursuant to this Order, may delegate to the Secretary
of Labor by agreement such responsibilities with respect to compliance
standards, reports, and procedures as would tend to bring the administration of
such requirements into conformity with the administration of requirements
imposed under this Order: Provided, That actions to effect compliance by
recipients of Federal financial assistance with requirements imposed pursuant
to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with
the procedures and limitations prescribed in Section 602 thereof and the
regulations of the administering department or agency issued thereunder.
Part IV--Miscellaneous
Sec. 401. The Secretary of Labor may delegate to any officer, agency,
or employee in the Executive branch of the Government, any function or duty of
the Secretary under Parts II and III of this Order.
[Sec. 401 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 402. The Secretary of Labor shall provide administrative support
for the execution of the program known as the "Plans for Progress."
Sec. 403. (a) Executive Orders Nos. 10590 (January 19, 1955), 10722
(August 5, 1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July
28, 1964), are hereby superseded and the President's Committee on Equal
Employment Opportunity established by Executive Order No. 10925 is hereby
abolished. All records and property in the custody of the Committee shall be
transferred to the Office of Personnel Management and the Secretary of Labor,
as appropriate.
(b) Nothing in this Order shall be deemed to relieve any person of any
obligation assumed or imposed under or pursuant to any Executive Order
superseded by this Order. All rules, regulations, orders, instructions,
designations, and other directives issued by the President's Committee on Equal
Employment Opportunity and those issued by the heads of various departments or
agencies under or pursuant to any of the Executive orders superseded by this
Order, shall, to the extent that they are not inconsistent with this Order,
remain in full force and effect unless and until revoked or superseded by
appropriate authority. References in such directives to provisions of the
superseded orders shall be deemed to be references to the comparable provisions
of this Order.
[Sec. 403 amended by Executive Order 12107 of Dec. 28, 1978, 44 FR 1055, 3
CFR, 1978 Comp., p. 264]
Sec. 404. The General Services Administration shall take appropriate
action to revise the standard Government contract forms to accord with the
provisions of this Order and of the rules and regulations of the Secretary of
Labor.
Sec. 405. This Order shall become effective thirty days after the
date of this Order.