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May 17, 1973 - Atlanta Federal Personnel Council
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May 17, 1973 - Atlanta Federal Personnel Council
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Stanley S. Scott Papers
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Affirmative action programs
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The original documents are located in Box 26, folder "May 17, 1973 - Atlanta Federal
Personnel Council" of the Stanley Scott Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Bettye L. Scott donated to the
United States of America her copyrights in all of her husband's unpublished writings in National
Archives collections. Works prepared by U.S. Government employees as part of their official
duties are in the public domain. The copyrights to materials written by other individuals or
organizations are presumed to remain with them. If you think any of the information displayed
in the PDF is subject to a valid copyright claim, please contact the Gerald R. Ford Presidential
Library.
HOLD FOR RELEASE 1:30 P. M., THURSDAY, MAY 17, 1973
EQUAL EMPLOYMENT OPPORTUNITY
ATLANTA FEDERAL PERSONNEL COUNCIL
BILTMORE HOTEL
ATLANTA, GEORGIA
THURSDAY, MAY 17, 1973
RALD OF R. FORD JBRARY
BY:
STANLEY S. SCOTT
SPECIAL ASSISTANT
TO THE PRESIDENT
THE WHITE HOUSE
WASHINGTON, D.C.
RALD GE R. FORD VIBRART
EQUAL EMPLOYMENT OPPORTUNITY IS A MAJOR CONCERN
OF THE FEDERAL GOVERNMENT. STATE AND LOCAL GOVERNMENTS
ALSO SHARE IN THIS CONCERN AND IT IS THIS AREA THAT I WILL
DISCUSS TODAY.
WHAT I AM GOING TO SAY REPRESENTS SOMETHING MORE THAN
A CASUAL STATEMENT OF MY PERSONAL VIEWS. IT IS BASED ON AN
AGREEMENT NOW IN EFFECT AMONG REPRESENTATIVES OF THE VARIOUS
EXECUTIVE BRANCH AGENCIES WHICH HAVE RESPONSIBILITY IN THIS
AREA. I KNOW YOU WILL AGREE WITH ME WHEN I SAY THAT THE MORE
FACTUAL A STATEMENT IS, THE DULLER IT IS TO LISTEN TO. I WILL
TRY TO MINIMIZE THIS PROBLEM, HOWEVER, I HOPE YOU WILL
RECOGNIZE THAT IT IS UNAVOIDABLE.
THE FEDERAL GOVERNMENT IS INVOLVED WITH STATE AND LOCAL
GOVERNMENTAL PERSONNEL SYSTEMS IN A NUMBER OF WAYS.
FIRST, THE NEW AMENDMENTS TO TITLE VII OF THE CIVIL
RIGHTS ACT, KNOWN AS THE EQUAL EMPLOYMENT OPPORTUNITY ACT
- 2 -
OF 1972, GIVE THE EEOC AND THE DEPARTMENT OF JUSTICE NEW
ENFORCEMENT RESPONSIBILITIES. THESE RESPONSIBILITIES ARE
TO ELIMINATE DISCRIMINATORY EMPLOYMENT PRACTICES AMONG
STATE AND LOCAL GOVERNMENTS, INCLUDING AUTHORITY FOR THE
EEOC TO SEEK COURT ENFORCEMENT OF ITS DECISIONS, AND AUTHORITY
FOR THE DEPARTMENT OF JUSTICE TO BRING CIVIL ACTIONS AGAINST
STATE OR LOCAL GOVERNMENTS.
SECOND, UNDER THE INTERGOVERNMENTAL PERSONNEL ACT, THE
CIVIL SERVICE COMMISSION CAN ASSIST STATE AND LOCAL GOVERN-
MENTS. FOR INSTANCE, THE COMMISSION GIVES GRANTS TO IMPROVE
TESTING AND SELECTION PROCEDURES. ONE OF THE COMMISSION'S
OBJECTIVES IN THIS ASSISTANCE IS TO HELP ENSURE NON-
DISCRIMINATION IN THE VARIOUS STATE AND LOCAL PERSONNEL
SYSTEMS.
THIRD, THE FEDERAL GOVERNMENT PAYS THE EXPENSES OF SOME
STATE AND LOCAL SERVICE-DELIVERY SYSTEMS. A GOOD EXAMPLE
GERALD RALD GE Fl. FORD JBRART
- 3 -
OF THIS IS THE U.S. EMPLOYMENT SERVICE, IN WHICH THE LOCAL
WORKERS REMAIN LOCAL, RATHER THAN FEDERAL, EMPLOYEES.
REGULATIONS UNDER THESE LAWS REQUIRE THAT SUCH LOCAL SYSTEMS
BE OPERATED ON A NON-DISCRIMINATORY BASIS.
FOURTH, STATE AND LOCAL GOVERNMENTAL UNITS, INSOFAR AS THEY
MAY BE CONTRACTORS WITH THE FEDERAL GOVERNMENT, ARE COVERED
BY EXECUTIVE ORDER NUMBER 11246, WHICH FORBIDS DISCRIMINATION
ON THE PART OF THE FEDERAL CONTRACTORS.
WE THUS HAVE FOUR SEPARATE GOVERNMENT AGENCIES - -- EEOC,
THE CIVIL SERVICE COMMISSION, JUSTICE AND LABOR - DIRECTLY
INVOLVED IN ADVISING, OR IN SOME CASES INSTRUCTING, STATE
AND LOCAL GOVERNMENTS AS TO HOW TO DISCHARGE RESPONSIBILITIES
IN ENSURING NONDISCRIMINATION IN THEIR PERSONNEL SYSTEMS.
WHEN THESE MATTERS BECOME AN ISSUE BEFORE THE COURTS THE
DEPARTMENT OF JUSTICE MUST SPEAK FOR THE ENTIRE FEDERAL
EXECUTIVE BRANCH.
RALD FORD JBRARE
& 30
- 4 -
THE MOMENT WE HAVE FOUR DIFFERENT AGENCIES DEALING WITH
STATE AND LOCAL GOVERNMENTS IN THE SAME FIELD, WE HAVE THE
CHALLENGE OF MAKING SURE THAT EACH OF THE FOUR FOLLOWS THE SAME
GUIDELINES IN WORKING FOR A NONDISCRIMINATORY PERSONNEL
SYSTEM. NOTHING IS MORE FRUSTRATING TO STATE AND LOCAL OFFICIALS
THAN TO GET CONFLICTING "SIGNALS" FROM DEPARTMENTS WITHIN THE
FEDERAL EXECUTIVE BRANCH. EVERY REASONABLE EFFORT MUST BE
MADE IN THIS SENSITIVE AREA TO AVOID DIFFERENT INTERPRETATIONS.
THE POLICIES I AM ABOUT TO DISCUSS REFLECT AN ATTEMPT
AT A UNIFIED APPROACH ON THE PART OF THE EEOC, CIVIL SERVICE
COMMISSION, JUSTICE AND LABOR.
THESE FOUR AGENCIES ARE IN BASIC AGREEMENT THAT THERE IS
NO CONFLICT BETWEEN A TRUE MERIT SELECTION SYSTEM AND EQUAL
EMPLOYMENT OPPORTUNITY LAWS. EACH OF THESE REQUIRES
FORD la & LIBRARY RALD 15
NONDISCRIMINATION IN SELECTION, HIRING, PROMOTION, TRANSFER
AND LAYOFF, AND EACH REQUIRES THAT SUCH DECISIONS BE BASED
UPON THE PERSON'S INDIVIDUAL ABILITY AND MERIT, NOT ON THE
- 5 -
BASIS OF RACE, COLOR, NATIONAL ORIGIN, RELIGION OR SEX.
ALL FOUR AGENCIES RECOGNIZE THAT GOALS AND TIMETABLES
ARE APPROPRIATE AS A DEVICE TO HELP MEASURE PROGRESS IN
REMEDYING DISCRIMINATION. FURTHERMORE, ALL FOUR AGENCIES
RECOGNIZE THE BASIC DISTINCTIONS BETWEEN PERMISSIBLE GOALS
ON THE ONE HAND AND IMPERMISSIBLE QUOTAS ON THE OTHER. LET
ME ELABORATE ON THESE SPECIFIC POINTS.
IN THE EMPLOYMENT CONTEXT, A QUOTA WOULD MEAN THE
APPLICATION OF A FIXED NUMBER OR PERCENTAGE OF PERSONS OF A
CERTAIN GROUP THAT WOULD HAVE TO BE HIRED. THE CRUCIAL
CONSIDERATION THEN WOULD BE WHETHER THE MANDATORY NUMBERS
OF PERSONS HAD IN FACT BEEN HIRED OR PROMOTED. THE FIXED
NUMBER WOULD APPLY REGARDLESS OF THE NUMBER OF VACANCIES
OR THE NUMBER OF POTENTIAL APPLICANTS WHO WOULD MEET
NECESSARY QUALIFICATIONS. IF THE EMPLOYER FAILED TO MEET THE
FIXED REQUIREMENT, HE WOULD BE SUBJECT TO LEGAL ACTION.
RALD OF R.
FORD IT VERAGA
- 6 -
IT WOULD BE NO DEFENSE, UNDER A QUOTA ARRANGEMENT, FOR THE
EMPLOYER TO ARGUE THAT THE QUOTA MAY HAVE BEEN UNREALISTIC
TO START WITH, OR THAT THERE WERE INSUFFICIENT VACANCIES, OR
THERE WERE NOT ENOUGH QUALIFIED APPLICANTS. ALTHOUGH HE
MAY TRY IN GOOD FAITH TO OBTAIN EMPLOYEES THROUGH PROFESSIONAL
RECRUITMENT METHODS, HE WOULD STILL BE LIABLE.
A GOAL, ON THE OTHER HAND, IS A NUMERICAL OBJECTIVE, FIXED
REALISTICALLY IN TERMS OF THE NUMBER OF VACANCIES EXPECTED,
AND THE NUMBER OF QUALIFIED APPLICANTS AVAILABLE IN THE
RELEVANT JOB MARKET. AN EMPLOYER IS NOT EXPECTED TO DISPLACE
EXISTING EMPLOYEES OR HIRE UNNEEDED OR UNQUALIFIED APPLICANTS
TO MEET A GOAL. IF THE EMPLOYER HAS DEMONSTRATED A GOOD FAITH
EFFORT IN ADVERTISING AND RECRUITING ELIGIBLES UNDER AN
AFFIRMATIVE ACTION PROGRAM, BUT STILL CANNOT FIND ENOUGH
QUALIFIED APPLICANTS TO MEET HIS GOAL, HE IS NOT SUBJECT TO
LEGAL ACTION.
RALD FORD VBRA91
& 30
FORD & GERALD LIBRARY
- 7 -
UNDER A SYSTEM OF GOALS AN EMPLOYER IS NOT REQUIRED
TO HIRE A PERSON WHO DOES NOT HAVE QUALIFICATIONS NEEDED TO
PERFORM THE JOB SUCCESSFULLY. ALSO AN EMPLOYER IS NOT
REQUIRED TO HIRE AN UNQUALIFIED PERSON IN PREFERENCE TO
ANOTHER APPLICANT WHO IS QUALIFIED, NOR IS AN EMPLOYER
REQUIRED TO HIRE A SIGNIFICANTLY LESS QUALIFIED PERSON IN
PREFERENCE TO A BETTER QUALIFIED PERSON. THE QUALIFICATIONS
USED TO MAKE SUCH RELATIVE JUDGMENTS MUST REALISTICALLY MEASURI
THE PERSON'S ABILITY TO DO EITHER THE JOB IN QUESTION, OR OTHER
JOBS TO WHICH HE IS LIKELY TO PROGRESS.
UNLIKE QUOTAS, A GOAL RECOGNIZES THAT PERSONS ARE JUDGED
ON INDIVIDUAL ABILITY, AND THEREFORE THE SETTING AND FULFILLING
OF GOALS IS CONSISTENT WITH THE PRINCIPLES OF MERIT HIRING.
QUOTAS CALL FOR HIRING THE UNQUALIFIED OVER THE QUALIFIED.
IN SUMMATION, GOALS, TIMETABLES AND AFFIRMATIVE ACTION
PROGRAMS ARE A PROCESS DESIGNED TO WORK TOWARD THE ELIMINATION
OF DISCRIMINATION BY BREAKING DOWN BARRIERS OF HABIT,
RALD FORD JERANT
GE R.
- 8 -
ATTITUDE AND TRAINING WHICH PREVENT THE RECOGNITION OF
INDIVIDUAL MERIT. QUOTA SYSTEMS, ON THE OTHER HAND, CAN
ACTUALLY COMPOUND DISCRIMINATION BY ESTABLISHING ARBITRARY
NUMBERS THAT TAKE NO ACCOUNT OF INDIVIDUAL MERIT. UNDER THE
QUOTA SYSTEM, THE INDIVIDUAL QUALITIES OF PARTICULAR EMPLOYEES
VIRTUALLY DISAPPEAR.
MAKING ALL THESE DISTINCTIONS WORK IN PRACTICE IS BOUND
TO BE DELICATE AND A DIFFICULT TASK. DISSATISFACTION WITH
PARTICULAR APPLICATIONS BY ONE SIDE OR THE OTHER IS INEVITABLE.
THIS IS THE CASE WITH MOST OF THE IMPORTANT QUESTIONS OF PUBLIC
ADMINISTRATION IN OUR COMPLEX SOCIETY. DETERMINING JUST
WHAT CONSTITUTES GOOD FAITH, FOR EXAMPLE, CAN BE A LONG PROCESS
INVOLVING HIGHLY SUBJECTIVE CONSIDERATIONS.
IN THE ABSENCE OF SENSITIVE ADMINISTRATION, AFFIRMATIVE
ACTION PLANS CAN QUICKLY BE TRANSFORMED INTO DE FACTO QUOTA
SYSTEMS. IT IS EASY AND SOMETIMES TEMPTING FOR THOSE WHO
- 9 -
RALD FORD UBRART
13 R.
ENFORCE SUCH PLANS TO SUBSTITUTE THEIR OWN YARDSTICK FOR
MORE COMPLEX CRITERIA IN MEASURING COMPLIANCE. IT IS ALSO
SOMETIMES TEMPTING FOR THE ENFORCER TO GIVE UNDUE WEIGHT TO
PROPORTIONAL REPRESENTATION IN WORKING OUT GOALS AND
TIMETABLES. IN VINDICATING A GROUP'S RIGHTS.
WHEN THESE THINGS HAPPEN, THE REACTION IS INEVITABLE:
RESENTMENT AND RESISTANCE BUILDS AGAINST THE WHOLE IDEA
OF AFFIRMATIVE ACTION. IT IS SEEN AS A SHAM, A SEMANTIC TRICK
FOR DISGUISING WHAT TURNS OUT TO BE A QUOTA SYSTEM AFTER ALL.
AND OUT GOES THE PROVERBIAL BABY WITH THE BATH WATER.
THE PRESIDENT HAS REAFFIRMED HIS SUPPORT FOR AFFIRMATIVE
ACTION PROGRAMS AND HIS OPPOSITION TO QUOTAS. THE APPARENT
DETERIORATION OF THE DISTINCTIONS OF THE TWO PROMPTED HIS
INSTRUCTION TO FEDERAL OFFICIALS LAST AUGUST TO RE-EXAMINE
THEIR PROCEDURES AND TO TAKE WHATEVER REMEDIAL ACTIONS ARE
NECESSARY. WHAT I AM RELATING TODAY IS PART OF THAT CONTINUING
PROCESS.
RALD FORD JBRARI
GE R.
- 10 -
THIS EFFORT IS NOT A RETREAT FROM STRONG AFFIRMATIVE
ACTION PROGRAMS. THERE IS NO TRUTH TO THE RUMORS WHICH
PREDICT SUCH A RETREAT. THERE IS, HOWEVER, EVERY REASON TO
WORK TO PROTECT TRUE AFFIRMATIVE ACTION PROGRAMS BY
PREVENTING THEIR FATAL TRANSFORMATION INTO DE FACTO QUOTA
SYSTEMS. FOR IF THAT HAPPENS, THE CRUCIALLY IMPORTANT
STRUGGLE FOR EQUAL OPPORTUNITY WILL BE THE ONE RECEIVING THE
SET BACK. STATE AND LOCAL GOVERNMENTS MUST BE ABLE TO COUNT
ON NOT ONLY THE SENIOR OFFICERS OF THE EEEOC, THE CIVIL SERVICE
COMMISSION, THE DEPARTMENT OF LABOR AND THE DEPARTMENT OF
JUSTICE, BUT ALSO EACH AND EVERY ONE OF THEIR REPRESENTATIVES
IN THE FIELD. THEY MUST RECOGNIZE AND RESPECT THESE DISTINCTIONS
AND CARRY OUT THE PRESIDENT'S POLICY IN A UNIFIED AND
CONSISTENT FASHION.
- 11 -
LERARY RALD FORD
GE R.
LET'S TURN NOW TO SPECIFICS. WHEN A STATE OR LOCAL
AND
PERSONNEL SYSTEM HAS BEEN CHALLENGED
GROUNDS OF
HAS BEEN
DISCRIMINATION, FOUND BY THE EEOC, FOUR FEDERAL AGENCIES
MUST AID IN DETERMINING THE PROPER REMEDIES TO BE SOUGHT.
THERE ARE SOME CASES WHERE ADMINISTRATIVE AGENCIES OR
COURTS HAVE FOUND THAT THE PATTERNS AND PRACTICES OF
DISCRIMINATION HAVE BEEN DEEP AND PERSISTENT.
THE FOUR AGENCIES -- -- JUSTICE, EEOC, LABOR AND THE CIVIL
SERVICE COMMISSION -- AGREE THAT IF A STATE OR LOCAL GOVERN-
MENT'S PERSONNEL SYSTEM IS ADMINISTRATIVELY OR JUDICIALLY FOUND
TO BE DISCRIMINATORY, THAT SYSTEM MUST BE CHANGED AND THAT THE
FOLLOWING REMEDIES ARE APPROPRIATE MEANS TO DO so.
RALD LIRARY FORD
GE R.
- 12 -
FIRST, WHEN AN INDIVIDUAL HAS BEEN FOUND TO BE THE
VICTIM OF AN UNLAWFUL EMPLOYMENT PRACTICE, HE OR SHE SHOULD
BE GIVEN PRIORITY CONSIDERATION FOR THE NEXT EXPECTED VACANCY,
REGARDLESS OF HIS OR HER RELATIVE "ABILITY RANKING." THIS IS
NECESSARY BECAUSE WERE IT NOT FOR THE ACT OF DISCRIMINATION, HE
OR SHE WOULD IN FACT BE ON THE JOB.
SECOND, AFFIRMATIVE ACTION PLANS NEED TO BE UTILIZED TO
FILL ADDITIONAL AVAILABLE VACANCIES. THE KEY TO SUCH PLANS IS
OFTEN AN IMAGINATIVE PROGRAM OF ADVERTISING AND RECRUITMENT
IN ORDER TO OPEN UP SOURCES OF ELIGIBLE APPLICANTS WHICH HAD
SIMPLY NEVER BEEN SOUGHT OUT BEFORE.
THIRD, NUMERICAL GOALS SHOULD BE UTILIZED. THE PRESIDENT
HAVING CHARACTERIZED NUMERICAL GOALS AS "AN IMPORTANT
AND USEFUL TOOL TO MEASURE PROGRESS WHICH REMEDIES THE EFFECT
OF PAST DISCRIMINATION."
- 13 -
FORD & LIBRARY GERALD RALD
FOURTH, IF NECESSARY, IT IS APPROPRIATE FOR A COURT TO ORDER
AN EMPLOYER TO MAKE A GOOD FAITH EFFORT TO MEET THE GOALS AND
TIMETABLES. COURTS CAN ALSO IMPOSE HIRING GOALS ON AN EMPLOYER
WHO HAS ENGAGED IN RACIAL OR ETHNIC EXCLUSION OR OTHER
UNCONSTITUTIONAL OR UNLAWFUL EMPLOYMENT PRACTICES.
FIFTH, THE FOUR AGENCIES HAVE AGREED THAT IN STATE OR LOCAL
GOVERNMENTAL EMPLOYMENT CASES INVOLVING SELECTION PRO CEDURES
WHICH ARE SAID TO BE DISCRIMINATORY, THESE PROCEDURES MUST
BE CHANGED. THE STATE OR LOCAL GOVERNMENT WILL BE EXPECTED TO
DEVISE OR BORROW A SELECTION PROCEDURE WHICH IS OBJECTIVE
AND WILL STAND UP UNDER SCRUITNY. IF THE HIRING GOAL IS NOT
BEING MET, THE AFFIRMATIVE ACTION PROGRAM WILL HAVE TO BE REVISED.
SIXTH, IT IS AGREED THAT NEW TESTS OR STANDARDS WILL NOT BE
MORE SEVERE THAN THOSE USED IN SELECTING PREVIOUSLY ELIGIBLE
GROUPS.
RALO GE A. FORD JBRART
- 14 -
FINALLY, IT IS AGREED THAT ADMINISTRATIVELY OR THROUGH THE
COURTS WE WILL URGE, AND WE WILL HELP THE STATE OR LOCAL
EMPLOYER DEVELOP A VALID, JOB-RELATED, MERIT SELECTION
PROCEDURE AS RAPIDLY AS CIRCUMSTANCES PERMIT.
AT THE VERY HEART OF A MERIT SYSTEM, OF COURSE, IS A SET
OF SELECTION PROCEDURES WHICH ALLOW APPLICANTS FOR A NEW JOB
OR A BETTER JOB TO BE OBJECTIVELY RATED AND SCORED. ONCE THERE
ARE SCORES THE MERIT PRINCIPLES DEMANDS THAT THE RANK ORDERING
BE RESPECTED.
A TASK TO WHICH THE CIVIL SERVICE COMMISSION EXPECTS
TO GIVE HIGH PRIORITY IS THAT OF AIDING STATE AND LOCAL
GOVERNMENTS IN IMPROVING ALL ASPECTS OF THEIR PERSONNEL
ADMINISTRATION TO ELIMINATE DISCRIMINATION.
THE GENERAL PRINCIPLES WHICH I HAVE DISCUSSED AND THE
SPECIFIC STEPS WHICH THE EEOC, THE CIVIL SERVICE COMMISSION,
THE DEPARTMENT OF LABOR AND THE DEPARTMENT OF JUSTICE HAVE
FORD is LIBRARY GERALD RALO
- 15 -
CONCURRED IN
CONSTITUTE A FRAMEWORK OF REASONABLE
CERTAINTY ON WHICH STATE AND LOCAL GOVERNMENT CAN RELY IN
DEVELOPING RELATIONS WITH THE FEDERAL GOVERNMENT.
WITH GENERAL REVENUE-SHARING NOW A REALITY AND WITH
SPECIAL REVENUE SHARING BILLS PENDING FOR CONGRESSIONAL
CONSIDERATION, THE SEVERAL STATES AND THE MANY MUNICIPALITIES--
AND WE OURSELVES IN THE FEDERAL GOVERNMENT -- ALL WANT TO MAKE
SURE THAT STATE AND LOCAL PERSONNEL SYSTEMS ARE MODELS OF
FAIRNESS.
STATE AND LOCAL GOVERNMENTS CAN BE ASSURED OF COOPERATION
BY THE AFFECTED FEDERAL AGENCIES IN MOVING TOWARD THIS OBJECTIVE.
WE NEED THE HELP AND DEDICATION OF MEN AND WOMEN LIKE
YOURSELVES -- TO MAKE EQUAL EMPLOYMENT A REALITY.
********