Executive Order 11246
Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965, established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. It "prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin." It also requires contractors to "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." The phrase affirmative action had appeared previously in Executive Order 10925 in 1961.
The order was a follow-up to Executive Order 10479 signed by President Dwight D. Eisenhower on August 13, 1953 establishing the anti-discrimination Committee on Government Contracts, which itself was based on a similar Executive Order 8802 issued by President Franklin D. Roosevelt in 1941. Eisenhower's Executive Order has been amended and updated by at least six subsequent Executive Orders. It differed significantly from the requirements of the Civil Rights Act of 1964, which only required organizations to document their practices once there was a preliminary finding of wrongdoing. This Executive Order required the businesses it covered to maintain and furnish documentation of hiring and employment practices upon request.
The Executive Order also required contractors with 51 or more employees and contracts of $50,000 or more to implement affirmative action plans to increase the participation of minorities and women in the workplace if a workforce analysis demonstrates their under-representation, meaning that there are fewer minorities and women than would be expected given the numbers of minorities and women qualified to hold the positions available. Federal regulations require affirmative action plans to include an equal opportunity policy statement, an analysis of the current work force, identification of under-represented areas, the establishment of reasonable, flexible goals and timetables for increasing employment opportunities, specific action-oriented programs to address problem areas, support for community action programs, and the establishment of an internal audit and reporting system.
The Order assigned the responsibility for enforcing parts of the non-discrimination in contracts with private industry to the Department of Labor. Detailed regulations for compliance with the Order were not issued until 1969, when the Nixon administration made affirmative action part of its civil rights strategy.
In 1971, a three-judge panel of the United States Court of Appeals for the Third Circuit affirmed the validity of Executive Order 11246 in a case brought by the Contractors Association of Eastern Pennsylvania in January 1970 that challenged the Nixon Administration's implementation known as the Philadelphia Plan. In April 1971, the court rejected numerous challenges to the order, including claims that it was beyond the President's constitutional authority, that it was inconsistent with Titles VI and VII of the Civil Rights Act of 1964, and that it was inconsistent with the National Labor Relations Act. The Supreme Court of the United States declined to hear the case, Contractors Association of Eastern Pennsylvania v. Secretary of Labor, in October.
In 1986, the Reagan administration was opposed to the affirmative action requirements of this Executive Order and contemplated modifying it to prohibit employers from using "quotas, goals, or other numerical objectives, or any scheme[,] device, or technique that discriminates against, or grants any preference to, any person on the basis of race, color, religion, sex, or national origin." The contemplated change was never issued because it faced bi-partisan opposition in Congress that threatened to counteract it by enacting Executive Order 11246 into law by a veto-proof majority.
- U.S. Department of Labor: "The Executive Order 11246", accessed February 4, 2012
- National Archives: "Executive Orders Disposition Tables, Dwight D. Eisenhower - 1953", accessed February 4, 2012
- Faye J. Crosby and Cheryl VanDeVeer, eds., Sex, Race, & Merit: Debating Affirmative Action in Education and Employment (University of Michigan, 2000), 220, available online, accessed February 4, 2012
- Faye Crosby, Margaret S. Stockdale, and S. Ann Ropp, eds., Sex Discrimination in the Workplace: Multidisciplinary Perspectives (Blackwell Publishing, 2007), 303. On the Nixon administration's strategy with respect to affirmative action see William T. Martin Riches, The Civil Rights Movement: Struggle and Resistance (Palgrave Macmillan, 2004), 106ff. available online, accessed February 5, 2012
- Anderson, Terry H. (2004). The Pursuit of Fairness: A History of Affirmative Action. Oxford University Press. pp. 126–7.
- Janson, Donald (April 24, 1971). "Minority Hiring Upheld by Court". New York Times. Retrieved February 9, 2014.
- Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3rd Cir.), cert. denied, 404 U.S. 854 (1971). From Google Scholar. Retrieved on February 8, 2014.
- Golland, David Hamilton (2011). Constructing Affirmative Action: The Struggle for Equal Employment Opportunity. University Press of Kentucky.
- Nicholas Laham, The Reagan Presidency and the Politics of Race: In Pursuit of Colorblind Justice and Limited Government (Praeger, 1998), 87ff., available online, accessed February 5, 2012
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- Text of Executive Order No. 11246
- Executive Order 11246 from the U.S. National Archives and Records Administration website.