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28 CFR 42.301
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER I--DEPARTMENT OF JUSTICE
PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY;
POLICIES AND PROCEDURES
Subpart E--Equal Employment Opportunity Program Guidelines
Authority: Sec. 501 of the Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. 90-351, 82 Stat. 197, as amended.
Source: 43 FR 28802, June 30, 1978, unless otherwise noted.
Sec. 42.301 Purpose.
The experience of the Law Enforcement Assistance Administration in
implementing its responsibilities under the Omnibus Crime Control and
Safe Streets Act of 1968, as amended (Pub. L. 90-351, 82 Stat. 197; Pub.
L. 91-644, 84 Stat. 1881) has demonstrated that the full and equal
participation of women and minority individuals in employment
opportunities in the criminal justice system is a necessary component to
the Safe Streets Act's program to reduce crime and delinquency in the
United States.
Sec. 42.302 Application.
(a) Recipient means any State or local unit of government or agency
thereof, and any private entity, institution, or organization, to which
Federal financial assistance is extended directly, or through such
government or agency, but such term does not include any ultimate
beneficiary of such assistance.
(b) The obligation of a recipient to formulate, implement, and
maintain an equal employment opportunity program, in accordance with
this subpart, extends to State and local police agencies, correctional
agencies, criminal court systems, probation and parole agencies, and
similar agencies responsible for the reduction and control of crime and
delinquency.
(c) Assignments of compliance responsibility for title VI of the
Civil Rights Act of 1964 have been made by the Department of Justice to
the Department of Health and Human Services, covering educational
institutions and general hospital or medical facilities. Similarly, the
Department of Labor, in pursuance of its authority under Executive
Orders 11246 and 11375, has assigned responsibility for monitoring equal
employment opportunity under government contracts with medical and
educational institutions, and non-profit organizations, to the
Department of Health and Human Services. Accordingly, monitoring
responsibility in compliance matters in agencies of the kind mentioned
in this paragraph rests with the Department of Health and Human
Services, and agencies of this kind are exempt from the provisions of
this subpart, and are not responsible for the development of equal
employment opportunity programs in accordance herewith.
(d) Each recipient of LEAA assistance within the criminal justice
system which has 50 or more employees and which has received grants or
subgrants of $25,000 or more pursuant to and since the enactment of the
Safe Streets Act of 1968, as amended, and
[[Page 707]]
which has a service population with a minority representation of 3
percent or more, is required to formulate, implement and maintain an
equal employment opportunity program relating to employment practices
affecting minority persons and women within 120 days after either the
promulgation of these amended guidelines, or the initial application for
assistance is approved, whichever is sooner. Where a recipient has 50 or
more employees, and has received grants or subgrants of $25,000 or more,
and has a service population with a minority representation of less than
3 percent, such recipient is required to formulate, implement, and
maintain an equal employment opportunity program relating to employment
practices affecting women. For a definition of ``employment practices''
within the meaning of this paragraph, see Sec. 42.202(c).
(e) Minority persons shall include persons who are Black, not of
Hispanic origin; Asian or Pacific Islanders; American Indians or Alaskan
Native; or Hispanics. These categories are defined at 28 CFR 42.402(e).
(f) Fiscal year means the 12 calendar months beginning October 1,
and ending September 30, of the following calendar year. A fiscal year
is designated by the calendar year in which it ends.
[43 FR 28802, June 30, 1978, as amended by Order No. 960-81, 46 FR
52357, Oct. 27, 1981]
Sec. 42.303 Evaluation of employment opportunities.
(a) A necessary prerequisite to the development and implementation
of a satisfactory equal employment opportunity program is the
identification and analysis of any problem areas inherent in the
utilization or participation of minorities and women in all of the
recipient's employment phases (e.g., recruitment, selection, and
promotion) and the evaluation of employment opportunities for minorities
and women.
(b) In many cases an effective equal employment opportunity program
may only be accomplished where the program is coordinated by the
recipient agency with the cognizant Office of Personnel Management or
similar agency responsible by law, in whole or in part, for the
recruitment and selection of entrance candidates and selection of
candidates for promotion.
(c) In making the evaluation of employment opportunities, the
recipient shall conduct such analysis separately for minorities and
women. However, all racial and ethnic data collected to perform an
evaluation pursuant to the requirements of this section should be cross
classified by sex to ascertain the extent to which minority women or
minority men may be underutilized. The evaluation should include but not
necessarily be limited to, the following factors:
(1) An analysis of present representation of women and minority
persons in all job categories;
(2) An analysis of all recruitment and employment selection
procedures for the preceding fiscal year, including such things as
position descriptions, application forms, recruitment methods and
sources, interview procedures, test administration and test validity,
educational prerequisites, referral procedures and final selection
methods, to insure that equal employment opportunity is being afforded
in all job categories;
(3) An analysis of seniority practices and provisions, upgrading and
promotion procedures, transfer procedures (lateral or vertical), and
formal and informal training programs during the preceding fiscal year,
in order to insure that equal employment opportunity is being afforded;
(4) A reasonable assessment to determine whether minority employment
is inhibited by external factors such as the lack of access to suitable
housing in the geographical area served by a certain facility or the
lack of suitable transportation (public or private) to the workplace.
[43 FR 28802, June 30, 1978, as amended by Order No. 899-80, 45 FR
43703, June 30, 1980]
Sec. 42.304 Written equal employment opportunity program.
Each recipient's equal employment opportunity program shall be in
writing and shall include:
(a) A job classification table or chart which clearly indicates for
each job classification or assignment the number of employees within
each respective job category classified by race, sex
[[Page 708]]
and national origin (include for example Hispanic, Asian or Pacific
Islander, and American Indian or Alaskan Native). Also, principal duties
and rates of pay should be clearly indicated for each job
classification. Where auxiliary duties are assigned or more than one
rate of pay applies because of length of time in the job or other
factors, a special notation should be made. Where the recipient operates
more than one shift or assigns employees within each shift to varying
locations, as in law enforcement agencies, the number by race, sex and
national origin on each shift and in each location should be identified.
When relevant, the recipient should indicate the racial/ethnic mix of
the geographic area of assignments by the inclusion of minority
population and percentage statistics.
(b) The number of disciplinary actions taken against employees by
race, sex and national origin within the preceding fiscal year, the
number and types of sanctions imposed (suspension indefinitely,
suspension for a term, loss of pay, written reprimand, oral reprimand,
other) against individuals by race, sex and national origin.
(c) The number of individuals by race, sex and national origin (if
available) applying for employment within the preceding fiscal year and
the number by race, sex and national origin (if available) of those
applicants who were offered employment and those who were actually
hired. If such data is unavailable, the recipient should institute a
system for the collection of such data.
(d) The number of employees in each job category by race, sex and
national origin who made application for promotion or transfer within
the preceding fiscal year and the number in each job category by race,
sex, and national origin who were promoted or transferred.
(e) The number of employees by race, sex, and national origin who
were terminated within the preceding fiscal year, identifying by race,
sex, and national origin which were voluntary and involuntary
terminations.
(f) Available community and area labor characteristics within the
relevant geographical area including total population, workforce and
existing unemployment by race, sex and national origin. Such data may be
obtained from the Bureau of Labor Statistics, Washington, DC, State and
local employment services, or other reliable sources. Recipient should
identify the sources of the data used.
(g) A detailed narrative statement setting forth the recipient's
existing employment policies and practices as defined in Sec. 42.202(c).
Thus, for example, where testing is used in the employment selection
process, it is not sufficient for the recipient to simply note the fact.
The recipient should identify the test, describe the procedures followed
in administering and scoring the test, state what weight is given to
test scores, how a cut-off score is established and whether the test has
been validated to predict or measure job performance and, if so, a
detailed description of the validation study. Similarly detailed
responses are required with respect to other employment policies,
procedures, and practices used by the applicant.
(1) The statement should include the recipient's detailed analysis
of existing employment policies, procedures, and practices as they
relate to employment of minorities and women (see Sec. 42.303) and,
where improvements are necessary, the statement should set forth in
detail the specific steps the recipient will take for the achievement of
full and equal employment opportunity. The Department of Justice
Guidelines on Employee Selection Procedures, 28 CFR part 50, set out the
appropriate standards for nondiscriminatory selection procedures.
Recipients of LEAA assistance using selection procedures which are not
in conformity with the Department of Justice guidelines shall set forth
the specific areas of nonconformity, the reasons which may explain any
such nonconformity, and if necessary, the steps the recipient agency
will take to correct any existing deficiency.
(2) The recipient should also set forth a program for recruitment of
minority persons based on an informed judgment of what is necessary to
attract minority applications including, but not necessarily limited to,
dissemination of posters, use of advertising media patronized by
minorities, minority group
[[Page 709]]
contacts and community relations programs. As appropriate, recipients
may wish to refer to recruitment techniques suggested in revised order
No. 4 of the Office of Federal Contract Compliance, U.S. Department of
Labor, found at 41 CFR 60-2.24(e).
(h) Plan for dissemination of the applicant's Equal Employment
Opportunity Program to all personnel, applicants and the general public.
As appropriate, recipients may wish to refer to the recommendations for
dissemination of policy suggested in revised order No. 4 of the Office
of Federal Contract Compliance, U.S. Department of Labor, found at 41
CFR 60-2.21.
(i) Designation of specified personnel to implement and maintain
adherence to the equal employment opportunity program and a description
of their specific responsibilities suggested in revised order No. 4 of
the Office of Federal Contract Compliance, U.S. Department of Labor,
found at 41 CFR 60-2.22.
Sec. 42.305 Recordkeeping and certification.
The equal employment opportunity program and all records used in its
preparation shall be kept on file and retained by each recipient covered
by these guidelines for subsequent audit or review by responsible
personnel of the cognizant State planning agency or the LEAA. Prior to
the authorization to fund new or continuing programs under the Omnibus
Crime Control and Safe Streets Act of 1968, the recipient shall file a
certificate with the cognizant State planning agency or with the LEAA
Office of Civil Rights Compliance stating that the equal employment
opportunity program is on file with the recipient. This form of the
certification shall be as follows:
I, __________ (person filing the application) certify that the
__________ (criminal justice agency) has formulated an equal employment
program in accordance with 28 CFR 42.301, et seq., subpart E, and that
it is on file in the Office of __________ (name), __________ (address),
__________ (title), for review or audit by officials of the cognizant
State planning agency or the Law Enforcement Assistance Administration
as required by relevant laws and regulations.
The criminal justice agency created by the Governor to implement the
Safe Streets Act within each State shall certify that it requires, as a
condition of the receipt of block grant funds, that recipients from it
have executed an Equal Employment Opportunity Program in accordance with
this subpart, or that, in conformity with the terms and conditions of
this regulation no equal employment opportunity programs are required to
be filed by that jurisdiction.
Sec. 42.306 Guidelines.
(a) Recipient agencies are expected to conduct a continuing program
of self-evaluation to ascertain whether any of their recruitment,
employee selection or promotional policies (or lack thereof) directly or
indirectly have the effect of denying equal employment opportunities to
minority individuals and women.
(b) Equal employment program modification may be suggested by LEAA
whenever identifiable referral or selection procedures and policies
suggest to LEAA the appropriateness of improved selection procedures and
policies. Accordingly, any recipient agencies falling within this
category are encouraged to develop recruitment, hiring or promotional
guidelines under their equal employment opportunity program which will
correct, in a timely manner, any identifiable employment impediments
which may have contributed to the existing disparities.
Sec. 42.307 Obligations of recipients.
The obligation of those recipients subject to these guidelines for
the maintenance of an equal employment opportunity program shall
continue for the period during which the LEAA assistance is extended to
a recipient or for the period during which a comprehensive law
enforcement plan filed pursuant to the Safe Streets Act is in effect
within the State, whichever is longer, unless the assurances of
compliance, filed by a recipient in accordance with Sec. 42.204(a)(2),
specify a different period.
Sec. 42.308 Noncompliance.
Failure to implement and maintain an equal employment opportunity
program as required by these guidelines
[[Page 710]]
shall subject recipients of LEAA assistance to the sanctions prescribed
by the Safe Streets Act and the equal employment opportunity regulations
of the Department of Justice. (See 42 U.S.C. 3757 and 28 CFR 42.207.)
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