B-223711, JUL 28, 1986

B-223711, JUL 28, 1986

EQUAL EMPLOYMENT OPPORTUNITY - COMMISSION - AUTHORITY - UNIFORM STANDARDS, GUIDELINES, AND POLICIES DEVELOPMENT - EMPLOYMENT DISCRIMINATION UNDER FEDERAL LAW DIGEST: ACTING CHAIRMAN OF THE NATIONAL ENDOWMENT FOR THE HUMANITIES REFUSED TO PROVIDE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) WITH DATA CONCERNING THE UNDERREPRESENTATION OF MINORITY GROUPS AND HIRING GOALS FOR THOSE GROUPS FOR FISCAL YEAR 1984, AS REQUIRED BY EEOC DIRECTIVES IMPLEMENTING SECTION 717(B) OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED. WE FIND THAT THE ACTING CHAIRMAN WAS LEGALLY OBLIGATED TO COMPLY WITH THE EEOC DIRECTIVES, BECAUSE SECTION 717(B) EXPRESSLY PROVIDES THAT AGENCY HEADS "SHALL COMPLY" WITH THE DIRECTIVES AND INSTRUCTIONS WHICH EEOC ISSUES PURSUANT TO THAT SECTION.

THE HONORABLE WILLIAM V. ROTH, JR.:

CHAIRMAN, COMMITTEE ON GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

THIS IS IN RESPONSE TO YOUR LETTER DATED JULY 15, 1986, REQUESTING OUR OPINION AS TO WHETHER MR. JOHN AGRESTO, AS ACTING CHAIRMAN OF THE NATIONAL ENDOWMENT FOR THE HUMANITIES (NEH) FROM FEBRUARY 1985 TO MAY 1986, WAS OBLIGATED TO COMPLY WITH EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) MANAGEMENT DIRECTIVES REQUIRING THE AGENCY TO SUBMIT DATA CONCERNING THE UNDERREPRESENTATION OF MINORITY GROUPS AND HIRING GOALS FOR THOSE GROUPS FOR FISCAL YEAR 1984. FOR THE REASONS STATED BELOW, WE CONCLUDE THAT MR. AGRESTO WAS LEGALLY OBLIGATED TO COMPLY WITH THESE EEOC DIRECTIVES.

BACKGROUND

THE ANTI-DISCRIMINATION PROVISIONS OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS EXTENDED TO FEDERAL EMPLOYEES BY THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, /1/ PROVIDE IN SECTION 717(B) THAT FEDERAL AGENCIES MUST PREPARE NATIONAL AND REGIONAL EQUAL EMPLOYMENT OPPORTUNITY PLANS IN ORDER TO MAINTAIN "AN AFFIRMATIVE PROGRAM OF EQUAL EMPLOYMENT OPPORTUNITY FOR ALL *** EMPLOYEES AND APPLICANTS FOR EMPLOYMENT ***." SECTION 717(B), AS AMENDED, CHARGES THE EEOC WITH RESPONSIBILITY FOR REVIEWING THE AGENCIES' PLANS AND MONITORING THEIR IMPLEMENTATION, AND STATES THAT, IN ORDER TO CARRY OUT ITS RESPONSIBILITIES UNDER THE STATUTE, THE COMMISSION "SHALL ISSUE SUCH RULES, REGULATIONS, ORDERS AND INSTRUCTIONS AS IT DEEMS NECESSARY AND APPROPRIATE ***." /2/

IN 1981, EEOC ISSUED MANAGEMENT DIRECTIVE 707 (EEO-MD 707), WHICH INSTRUCTED AGENCIES TO DEVELOP, SUBMIT, AND IMPLEMENT EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION PLANS FOR THE PERIOD COVERING FISCAL YEARS 1982 THROUGH 1986. THE DIRECTIVE REQUIRED EACH AGENCY TO IDENTIFY UNDERREPRESENTATION OF MINORITY GROUPS IN ITS WORKFORCE BY COMPARING THE PERCENTAGE OF SEX- SPECIFIC RACIAL AND ETHNIC GROUPS IN VARIOUS EMPLOYMENT CATEGORIES WITH THE PERCENTAGE OF THEIR REPRESENTATION IN THE RELEVANT CIVILIAN LABOR FORCE, AND THEN TO ESTABLISH LONG-TERM (5 YEAR) AND ANNUAL NUMERICAL HIRING GOALS FOR THE UNDERREPRESENTED GROUPS.

MANAGEMENT DIRECTIVE 707 WAS UPDATED IN 1984, WHEN EEOC ISSUED MANAGEMENT DIRECTIVE 707A (EEO-MD 707A). THIS LATTER DIRECTIVE PROVIDED INSTRUCTIONS FOR AGENCIES TO USE IN CONDUCTING ANNUAL UPDATES OF THEIR LONG-TERM HIRING GOALS AND REPORTING THEIR ANNUAL AFFIRMATIVE ACTION ACCOMPLISHMENTS TO EEOC.

THE NEH COMPLIED WITH THE REQUIREMENTS OF MANAGEMENT DIRECTIVE 707 THROUGH FISCAL YEAR 1982. HOWEVER, IN ITS REPORT TO EEOC FOR FISCAL YEAR 1983, NEH, UNDER CHAIRMAN WILLIAM J. BENNETT, REFUSED TO SUBMIT THE REQUIRED INDICES OF UNDERREPRESENTATION OR TO STATE ANY NUMERICAL HIRING GOALS. CHAIRMAN BENNETT, IN HIS LETTER TO THE EEOC ACCOMPANYING NEH'S FISCAL YEAR 1983 REPORT, STATED THAT:

"WE CANNOT PROVIDE THE REQUESTED INDICES OF 'UNDERREPRESENTATION' NOR THE STATEMENT OF NUMERICAL 'GOALS' CONCERNING EMPLOYMENT AT THE ENDOWMENT. NOTE THAT THE JUSTICE DEPARTMENT HAS RECENTLY TAKEN THE POSITION THAT EEOC EXCEEDS ITS AUTHORITY BY SEEKING SUCH INFORMATION. IN ADDITION TO THE QUESTION OF AUTHORITY THERE IS ALSO A QUESTION OF PRINCIPLE-- WHETHER RACE OR ETHNICITY OR GENDER SHOULD INFLUENCE EMPLOYMENT POLICIES. AND WE STRONGLY BELIEVE THAT DIFFERENT OR SPECIAL TREATMENT BY THIS AGENCY ON THE BASIS OF THESE CHARACTERISTICS OFFENDS OUR BEST PRINCIPLES AS A NATION."

THE JUSTICE DEPARTMENT'S POSITION ON WHICH CHAIRMAN BENNETT RELIED IS SET FORTH IN SEVERAL DEPARTMENTAL DOCUMENTS WHICH DID NOT PURPORT TO BIND ANY FEDERAL AGENCY. THESE DOCUMENTS INCLUDED A LETTER TO THE EEOC IN WHICH THE DEPARTMENT DECLINED TO INCLUDE NUMERICAL HIRING GOALS IN ITS AFFIRMATIVE ACTION REPORT FOR FISCAL YEAR 1982, A POLICY STATEMENT WHICH THE ATTORNEY GENERAL ISSUED TO THE DEPARTMENT'S COMPONENTS IN 1983, ADVISING THESE COMPONENTS THAT THE DEPARTMENT'S EQUAL EMPLOYMENT OPPORTUNITY PROGRAM WOULD NOT INCLUDE HIRING GOALS, AND AN INTERNAL LEGAL MEMORANDUM IN WHICH THE DEPARTMENT'S CIVIL RIGHTS DIVISION COMMENTED ON A 1983 DRAFT OF EEOC MANAGEMENT DIRECTIVE 707A. IN THIS LEGAL MEMORANDUM, THE CIVIL RIGHTS DIVISION EXPRESSED THE VIEW THAT THE EEOC COULD NOT REQUIRE AGENCIES TO SUBMIT UNDERREPRESENTATION DATA AND MINORITY HIRING GOALS BECAUSE: (1) SECTION 717 OF TITLE VII MANDATES THE ELIMINATION OF DISCRIMINATION IN FEDERAL EMPLOYMENT BUT DOES NOT REQUIRE THE CORRECTION OF UNDERREPRESENTATION THROUGH THE USE OF HIRING GOALS; (2) THE COLLECTION OF NUMERICAL HIRING GOALS FROM FEDERAL AGENCIES VIOLATES SECTION 703(J) OF TITLE VII, WHICH STATES THAT NOTHING IN TITLE VII SHALL BE INTERPRETED AS REQUIRING AN EMPLOYER TO GRANT PREFERENTIAL TREATMENT TO A RACIAL GROUP ON ACCOUNT OF A RACIAL IMBALANCE IN THE EMPLOYER'S WORKFORCE; AND (3) THE GOVERNMENT'S USE OF HIRING GOALS BENEFITING INDIVIDUALS NOT IDENTIFIED AS VICTIMS OF DISCRIMINATION VIOLATES THE CONSTITUTIONAL EQUAL PROTECTION RIGHTS OF NON-MINORITY EMPLOYEES AND APPLICANTS FOR EMPLOYMENT.

IN SUBMITTING NEH'S AFFIRMATIVE ACTION REPORT FOR THE NEXT FISCAL YEAR, 1984, ACTING CHAIRMAN AGRESTO OMITTED UNDERREPRESENTATION DATA AND MINORITY HIRING GOALS. APPARENTLY, MR. AGRESTO OMITTED THIS INFORMATION FOR THE REASONS WHICH HAD BEEN EXPRESSED BY HIS PREDECESSOR. /3/

ON DECEMBER 20, 1985, THE ARTS, HUMANITIES, AND MUSEUMS AMENDMENTS OF 1985, /4/ WAS ENACTED TO REAUTHORIZE NEH. SECTION 107(6) OF THE ACT ADDED A NEW SUBSECTION (E) TO SECTION 7 OF NEH'S ORGANIC LEGISLATION, 20, U.S.C. SEC. 956(E) (SUPP. III 1985), PROVIDING THAT:

"NOT LATER THAN JANUARY 31, 1986, THE CHAIRPERSON OF THE NATIONAL ENDOWMENT FOR THE HUMANITIES SHALL TRANSMIT TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION EACH PLAN AND EACH REPORT REQUIRED UNDER ANY REGULATION OR MANAGEMENT DIRECTIVE THAT IS ISSUED BY THE COMMISSION AND IS IN EFFECT ON DECEMBER 20, 1985."

SHORTLY AFTER THE ENACTMENT OF SECTION 107(6), ACTING CHAIRMAN AGRESTO PROVIDED EEOC WITH NEH'S AFFIRMATIVE ACTION REPORT FOR FISCAL YEAR 1985 AND INCLUDED THE REQUIRED UNDERREPRESENTATION DATA AND HIRING GOALS.

AGAINST THIS BACKGROUND, YOU QUESTION WHETHER MR. AGRESTO WAS LEGALLY BOUND TO COMPLY WITH THE EEOC MANAGEMENT DIRECTIVES IN FILING THE NEH'S AFFIRMATIVE ACTION REPORT FOR FISCAL YEAR 1984.

DISCUSSION

AS NOTED PREVIOUSLY, SECTION 717(B) OF TITLE VII, AS AMENDED, GIVES EEOC THE RESPONSIBILITY FOR COLLECTING AND EVALUATING AGENCIES' EQUAL EMPLOYMENT OPPORTUNITY PLANS AND PROVIDES THAT, IN DISCHARGING THIS RESPONSIBILITY, THE COMMISSION "SHALL ISSUE SUCH RULES, REGULATIONS, ORDERS AND INSTRUCTIONS AS IT DEEMS NECESSARY AND APPROPRIATE ***." SECTION 717(B) THEN SPECIFICALLY STATES THAT THE HEAD OF EACH DEPARTMENT AND AGENCY SUBJECT TO THE STATUTE "SHALL COMPLY WITH SUCH RULES, REGULATIONS, ORDERS, AND INSTRUCTIONS ***." ACCORDINGLY, UNDER THE EXPRESS TERMS OF SECTION 717(B), AGENCY HEADS ARE LEGALLY BOUND TO COMPLY WITH THE DIRECTIVES WHICH EEOC ISSUES PURSUANT TO THAT SECTION.

GIVEN THE EXPLICIT STATUTORY MANDATE IN SECTION 717(B), IT IS OUR VIEW THAT AN AGENCY HEAD COULD LAWFULLY REFUSE TO COMPLY WITH AN EEOC DIRECTIVE ISSUED UNDER THAT SECTION ONLY IF THE DIRECTIVE HAD BEEN INVALIDATED BY COMPETENT JUDICIAL AUTHORITY. WE ARE NOT AWARE OF ANY JUDICIAL DECISION HOLDING THAT THE EEOC REQUIREMENTS FOR UNDERREPRESENTATION DATA AND MINORITY HIRING GOALS EXCEED THE SCOPE OF THE COMMISSION'S AUTHORITY UNDER SECTION 717(B). NOR, ON A MORE GENERAL LEVEL, ARE WE AWARE OF ANY COURT CASES HOLDING THAT SECTION 703(J) OF TITLE VII OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT PROHIBITS AN EMPLOYER SUCH AS THE FEDERAL GOVERNMENT FROM ADOPTING MINORITY HIRING GOALS. /6/

ACCORDINGLY, IN THE ABSENCE OF ANY BINDING DECISION WHICH WOULD SERVE TO INVALIDATE THE EEOC MANAGEMENT DIRECTIVES EITHER EXPLICITLY OR BY NECESSARY IMPLICATION, AGENCY HEADS ARE OBLIGATED UNDER THE TERMS OF SECTION 717(B) TO COMPLY WITH THOSE DIRECTIVES. ON THIS BASIS, WE CONCLUDE THAT MR. AGRESTO WAS LEGALLY BOUND TO COMPLY WITH THE EEOC DIRECTIVES IN FILING NEH'S AFFIRMATIVE ACTION REPORT FOR FISCAL YEAR 1984.

WE TRUST THAT THE ABOVE INFORMATION IS RESPONSIVE TO YOUR INQUIRY. ALSO, AS YOUR STAFF REQUESTED, WE ARE ENCLOSING COPIES OF TWO SUPREME COURT DECISIONS RELATING TO THIS MATTER.

/4/ PUB.L. NO. 99-194, 99 STAT. 1332.

/5/ IT SHOULD BE NOTED THAT, ALTHOUGH SECTION 107(6) ELIMINATED ANY QUESTION ON NEH'S PART CONCERNING ITS OBLIGATION TO COMPLY WITH THE EEOC DIRECTIVES, IT DOES NOT APPEAR THAT CONGRESS VIEWED SECTION 107(6) AS IMPOSING ANY NEW LEGAL RESPONSIBILITY ON THE AGENCY. RATHER, THE LEGISLATIVE HISTORY OF SECTION 107(6) GENERALLY INDICATES THAT CONGRESS REGARDED THAT SECTION AS A REAFFIRMATION OF NEH'S EXISTING LEGAL OBLIGATION TO COMPLY WITH THE EEOC DIRECTIVES, MADE NECESSARY BY THE AGENCY'S FAILURE TO FULFILL THAT OBLIGATION. SEE H. REP. NO. 274, 99TH CONG., 1ST SESS., 23, 24 (1985) ("THIS COMMITTEE AND OTHERS HAVE REPEATEDLY INDICATED IN OVERSIGHT HEARINGS THAT *** NEH'S FAILURE TO FILE THE FULL AFFIRMATIVE ACTION PLAN IS TOTALLY CONTRARY TO THE CONGRESS' WISHES." SEE ALSO 131 CONG.REC. H8679 (DAILY ED. OCT. 10, 1985) (STATEMENT OF REP. COLLINS) (NEH "OPENLY CHOSE TO IGNORE THE LAW"; ENACTMENT OF SECTION 107(6) WOULD MAKE IT "CLEARLY UNDERSTOOD THAT ALL AGENCIES SHALL COMPLY WITH THE FEDERAL LAWS, NOT MAY COMPLY.") BUT SEE 131 CONG.REC. H7740 (DAILY ED. SEPT. 24, 1985) (STATEMENT OF REP. FRENZEL) (SECTION 107(6) WOULD "RAISE THE ADMINISTRATIVE DUTIES-- AND THEREFORE COST" OF NEH, AND WOULD "EXPAND THE ORIGINAL INTENT OF THIS LAW.")

/6/ IN FACT, WE NOTE THAT, IN UNITED STEELWORKERS V. WEBER, 443 U.S. 193 (1979), THE SUPREME COURT CONSTRUED SECTION 703(J) AND OTHER PROVISIONS OF TITLE VII AS PERMITTING EMPLOYERS TO VOLUNTARILY ADOPT RACE-CONSCIOUS AFFIRMATIVE ACTION PROGRAMS BENEFITING INDIVIDUALS WHO HAVE NOT BEEN IDENTIFIED AS VICTIMS OF DISCRIMINATION.

AFTER THE JUSTICE DEPARTMENT ADOPTED ITS POSITION CONCERNING THE LEGALITY OF THE EEOC DIRECTIVES AND ACTING CHAIRMAN AGRESTO REFUSED TO COMPLY WITH THOSE DIRECTIVES, THE SUPREME COURT ISSUED A DECISION UPHOLDING THE PRINCIPLES IT HAD EXPRESSED IN WEBER. SEE LOCAL NUMBER 93, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS V. CITY OF CLEVELAND, NO. 84-1999, SLIP OP. AT 13-15 (U.S. JULY 2, 1986). IN ANOTHER RECENT SUPREME COURT OPINION, WYGANT V. JACKSON BD. OF EDUC., 106 S.CT. 1842 (1986), THE COURT HELD THAT A SCHOOL BOARD'S LAYOFF PLAN EXTENDING PREFERENTIAL TREATMENT TO MINORITY EMPLOYEES NOT SHOWN TO BE VICTIMS OF PAST DISCRIMINATION VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, BUT IT INDICATED THAT "LESS INTRUSIVE" AFFIRMATIVE ACTION MEASURES SUCH AS MINORITY HIRING GOALS WOULD PASS CONSTITUTIONAL MUSTER. 106 S.CT. AT 1851, 1852.

/1/ PUB.L. NO. 92-261, 86 STAT. 103, MARCH 24, 1972.

/2/ SECTION 717(B), AS ORIGINALLY ENACTED, PROVIDED THAT THE CIVIL SERVICE COMMISSION (CSC) WOULD BE RESPONSIBLE FOR ADMINISTERING THE STATUTE. THE CSC'S RESPONSIBILITIES WERE TRANSFERRED TO EEOC BY REORGANIZATION PLAN NO. 1 OF 1978, 43 FED.REG. 19,807, REPRINTED IN 1978 U.S.C. CONG. & AD. NEWS 9799. THE AMENDED PROVISIONS OF SECTION 717(B) ARE CODIFIED IN 42 U.S.C. SEC. 2000E-16(B) (1982).

/3/ SEE MR. AGRESTO'S TESTIMONY IN THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION COLLECTION OF FEDERAL AFFIRMATIVE ACTION GOALS AND TIMETABLES AND ENFORCEMENT OF FEDERAL SECTOR EEO COMPLAINTS: HEARING BEFORE THE SUBCOMM. ON EMPLOYMENT OPPORTUNITIES OF THE HOUSE COMM. ON EDUCATION AND LABOR, 99TH CONG., 1ST SESS., 143-146 (1985) (HEREINAFTER CITED AS HEARINGS).