«Order Code RL32565 CRS Report for Congress Received through the CRS Web Survey of Federal Laws and Regulations Mandating Affirmative Action Goals, ...»
Order Code RL32565
CRS Report for Congress
Received through the CRS Web
Survey of Federal Laws and Regulations
Mandating Affirmative Action Goals,
Set-asides, or Other Preference
Based on Race, Gender, or Ethnicity
September 7, 2004
Charles V. Dale
American Law Division
American Law Division
Congressional Research Service ˜ The Library of Congress
Survey of Federal Laws and Regulations Mandating
Affirmative Action Goals, Set-asides, or Other Preference Based on Race, Gender, or Ethnicity Summary This report provides a broad, but by no means exhaustive, survey of federal statutes and regulations that specifically refer to race, gender, or ethnicity as factors to be considered in the administration of any federal program. Such measures may include, but are not limited to, goals, timetables, set-asides, and quotas, as those terms are generally (however imperfectly) understood. Based on several searches of LEXIS/NEXIS and WESTLAW legal databases, and a variety of search strategies, the compilation seeks to be as comprehensive as possible. With certain noted exceptions, the report collectively describes those statutes, regulations, or executive orders uncovered by our research which appear, in any manner, to prefer or consider race, gender, or ethnicity as affirmative factors in federal employment, in the allocation of federal contracts, or in granting any federal benefit to individuals or institutions. Several laws and regulations directed to “socially and economically disadvantaged” individuals and institutions are included because, as more fully explained by the report, that term has been defined administratively and by statute to presumptively apply to specific racial and ethnic minorities.
Contents Federal Grant and Procurement Law................................... 2 Federal Acquisitions Regulations — General........................ 5 Agriculture................................................... 6 Banking..................................................... 8 Commerce................................................... 9 Communications..................
The purpose of this report is to provide a broad, but by no means exhaustive, survey of federal statutes and regulations that specifically refer to race, gender, or ethnicity as factors to be considered in the administration of any federal program.
Such measures may include, but are not limited to, goals, timetables, set-asides, and quotas, as those terms are generally (however imperfectly) understood. Based on several searches of LEXIS/NEXIS and WESTLAW legal databases, and a variety of search strategies, the compilation reflects our effort to be as comprehensive as possible. Given the disparate policy objectives and wording of the various provisions, however, some editorial judgment was called for, and the final product may be viewed as over- or under-inclusive, depending on the reader’s perspective.
Nonetheless, included are any statute, regulation, or executive order uncovered by our research which appears, in any manner, to prefer or consider race, gender, or ethnicity as affirmative factors in federal employment, in the allocation of federal contracts, or in granting any federal benefit to individuals or institutions. Several laws and regulations directed to “socially and economically disadvantaged” individuals and institutions are included because, as explained infra, that term has been defined administratively and by statute to presumptively apply to specific racial and ethnic minorities.
Also, note that certain categories of federal law were purposely not included.
First are various federal civil rights statutes, like Title VI of the 1964 Civil Rights Act and related laws, that place nondiscrimination requirements upon recipients of federal financial assistance without mandating racial, ethnic, or gender preferences per se. Nor are regulations of the various federal departments or agencies under Title VI included for the similar reason that, although they almost uniformly authorize “affirmative action” by recipients to “overcome the effects of prior discrimination” or otherwise, they do not explicitly define the obligation in terms of “goals” or “setasides,” or other forms of preference for minorities or women.1 Also beyond the scope of this study are the remedy provisions in federal laws like Title VII of the 1964 Civil Rights Act2 or the Fair Housing Act,3 which authorize “affirmative” relief by the courts in discrimination actions, and have been the basis for judicial
preference orders in certain circumstances, but do not explicitly direct the imposition of “timetables, goals, set-asides, and quotas” on their face.
One final category of statutory “preference” excluded from consideration here are federal employment opportunity and other programs operated by the Bureau of Indian Affairs (BIA) for the benefit of American Indians living on or near a reservation. Such programs have been upheld by the Supreme Court under the Constitution based on the Government’s historical trust relationship with the Tribes and the “unique legal status [of] Indians” in matters relating to tribal affairs “on or near” the reservation.4 According to the accepted legal view, such “special treatment” is sui generis and constitutes neither “racial discrimination” nor “even a ‘racial’ preference.” It is based instead on a “criterion reasonably designed to further the cause of Indian self-government” which “as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”5 By way of background, and to facilitate understanding operation of the numerous listed federal laws and regulations, more extensive discussion is devoted at various points of this report to the development of major “affirmative action” programs in federal grant, contract, and employment law.
Federal Grant and Procurement Law Federal efforts to increase minority and female participation in contracting, federally assisted programs, and employment have been a major aspect of civil rights enforcement for more than three decades. Congress and the Executive Branch have crafted a wide range of federal laws and regulations authorizing, either directly or by judicial or administrative interpretation, race or gender “conscious” strategies in relation to jobs, housing, education, voting rights, and governmental contracting.
The historical model for federal laws and regulations establishing minority participation “goals” may be found in Executive Orders which since the early 1960’s have imposed affirmative minority hiring and employment requirements on federally financed construction projects and in connection with other large federal contracts.
Presently, Executive Order 11246, as administered by the Office of Federal Contract Compliance Programs (OFCCP), requires that all employers with federal contracts in excess of $50,000.00 must file written affirmative action plans with the government. These are to include minority and female hiring goals and timetables to which the contractor must commit its “good faith” efforts. Similar affirmative action measures relating to federal government employment were enacted as part of the Equal Employment Opportunity Act Amendment of 19726 and the 1978 Civil Service Reform Act.7 Morton v. Mancari, 417 U.S. 535, 548 (1973).
Id. at 554.
42 U.S.C. § 2000e-16(b).
5 U.S.C. § 7201.
CRS-3 Affirmative action for minority entrepreneurs soon became a focus of efforts by the Small Business Administration (SBA) and other federal agencies to assist “socially and economically disadvantaged” small businesses under a variety of federal programs. Increasingly, an “affirmative action” model, in the form of participation “goals” or “set-asides” for members of racial or ethnic minorities, and businesses owned or controlled by these or other “disadvantaged” persons, found legislative expression in a wide range of federal programs.
The Small Business Act, as amended, provides the statutory prototype for a host of federal programs to increase minority and female participation as contractors or subcontractors on federally funded projects. First, the “Minority Small Business and Capital Ownership Development,” or § 8(a) program authorizes the Small Business Administration (SBA) to enter into all kinds of construction, supply, and service contracts with other federal departments and agencies. The SBA acts as a prime contractor and then “subcontracts” the performance of these contracts to small business concerns owned and controlled by “socially and economically disadvantaged” individuals, Indian Tribes or Hawaiian Native Organizations.8 Applicants for § 8(a) certification must demonstrate “socially disadvantaged” status or that they “have been subjected to racial or ethnic prejudice or cultural bias because of their identities as members of groups without regard to their individual qualities.”9 The Small Business Administration “presumes,” absent contrary evidence, that small businesses owned and operated by members of certain groups — including Blacks, Hispanics, Native Americans, and Asian Pacific Americans — are socially disadvantaged.10 Any individual not a member of one of these groups must prove “social disadvantage” by a “preponderance” of evidence in order to qualify for § 8(a) certification. The § 8(a) applicant must, in addition, show that “economic disadvantage” has diminished its capital and credit opportunities, thereby limiting its ability to compete with other firms in the open market.11 The “Minority Small Business Subcontracting Program” authorized by § 8(d) of the Small Business Act codified the presumption of disadvantaged status for minority group members that applied by SBA regulation under the § 8(a) program.12 Prime contractors on major federal contracts are obliged by § 8(d) to maximize minority participation and to negotiate a “subcontracting plan” with the procuring agency which includes “percentage goals” for utilization of small socially 15 U.S.C. § 637(a).
15 U.S.C. § 637(a)(5).
13 CFR § 124.105(b).
The statute, 15 U.S.C. § 637(a)(6)(A), defines economic disadvantage in terms of:
socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others who are not socially disadvantaged, and such diminished opportunities have precluded or are likely to preclude such individuals from successfully competing in the open market.
15 U.S.C. § 637(d). See also 13 CFR § 124.106.
CRS-4 and economically disadvantaged firms (SDBs). To implement this policy, a clause required for inclusion in each such prime contract states that “[t]he contractors shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to § 8(a)...” Accordingly, SBA has discretion in designating a firm or individual as socially and economically disadvantaged for purposes of both the § 8(a) and § 8(d) programs in conformity with specified criteria.13 These obligations, first codified in 1978 as an amendment to the SBA, were augmented a decade later by the Business Opportunity Development Reform Act of
1988.14 Congress there directed the President to set annual, government-wide procurement goals of at least 20% for small businesses and 5% for disadvantaged businesses, as defined by the SBA. Simultaneously, federal agencies were required to continue to adopt their own goals, compatible with the government-wide goals, in an effort to create “maximum practicable opportunity” for small disadvantaged businesses to sell their goods and services to the government. The goals may be waived where not practicable due to unavailability of disadvantaged business enterprises (DBEs) in the relevant area and other factors.15 While the statutory definition of DBE includes a racial component, in terms of presumptive eligibility, it is not restricted to racial minorities but also includes persons subjected to “ethnic prejudice or cultural bias.”16 It also excludes businesses owned or controlled by persons who, regardless of race, are “not truly socially and/or economically disadvantaged.”17 Federal Acquisition Act amendments adopted in 1994 amended the 5% minority procurement goal, and the minority subcontracting requirements in § 8(d), to specifically include “small business concerns owned and controlled by women” in addition to “socially and economically disadvantaged individuals.”18 In addition, Congress has frequently adopted “set-asides” or other forms of statutory preference for “socially and economically disadvantaged” firms and individuals, following the definitions of the Small Business Act, or by designating minority groups and women as part of specific grant or contract authorization programs. Thus, targeted funding, in various forms, and minority or disadvantaged business set-asides or preferences have been included in major authorization or appropriation measures for agriculture, communications, defense, education, public 15 U.S.C. § 637(d). Criteria set forth in the regulations permit an administrative determination of socially disadvantaged status to be predicated on “clear and convincing evidence” that an applicant has “personally suffered” disadvantage of a “chronic and substantial” nature as the result of any of a variety of causes, including “long term residence in an environment isolated from the mainstream of American society,” with a negative impact “on his or her entry into the business world.”13 C.F.R. § 124.105(c).
P.L. 100-656, § 502, 102 Stat. 3887, codified at 15 U.S.C. § 644(g)(1).
See e.g. 49 C.F.R. §§ 23.64(e), 23.65 (setting forth waiver criteria for the Department of Transportation.
15 U.S.C. § 637(a)(5).