Executive Order 11246

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Feb 20, 2024

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Executive Order 11246 Coverage and Prohibition/Requirement: Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965, was one of the first federal regulations establishing affirmative action. Executive Order 11246 created regulations for Federal Government contractors prohibiting discrimination. The order prohibits employers from discriminating against employees and potential employees based on race, color, religion, gender, sexual orientation, etc. It was an expansion of Executive Order 8802 which was signed by President Franklin D. Roosevelt, which only applied to defense contractors. Executive Order 11246 also aimed to correct underrepresentation of women and minorities in the workforce. All employers contracting with the Federal Government where required to take steps to hire more women and minorities. Employers that have contractors with a $10,000 valuation or higher have additional requirements such as posting notice about nondiscrimination rights in the workplace and on hiring materials. Enforcement/Remedies: Executive Order 11246 is enforced by a division in the Department of Labor known of the Office of Federal Contract Compliance Programs. This Office has enacted expansion regulations enforcing the order. Employers refusing to fix employment disparities are subject to penalties from the OFCCP and could lose their current contracts and barred from any future contracts. One short fall of the Executive Order is remedies for employees. The OFCCP only addresses employer’s compliance with the order and does not handle legal action or recourse for impacted employees. While the OFCCP investigates complaints made by employees, employees subjected to infringements on this order must go through their state laws, and other legislation like title VII.

Case Law: Two cases centered around Executive Order 11246 are Chrysler Corp. V. Brown , 441 U.S. 281 and Traylor Safeway Stores , Inc., 402 F. Supp. 871. In Chrysler Corp. V. Brown, the Supreme Court ruled that Order 11246 claims are superseded by national security, protecting trade and business secrets. In Traylor Safeway Stores individuals alleged that Safeway was a government contractor under Order 11246 and was therefore prohibited from discriminating against classes. Impact: Executive Order 11246 has many implications for businesses and especially human resources. HR managers are tasked with maintaining compliance with regulations surrounding employment and employee grievances. It is their responsibility to ensure proper signage is posted incompliance with Order 11246. Additionally, the Order impacted potential employees as it expanded opportunities for women and minorities in the labor force. Affirmative action has been a major topic in the Courts and several regulations have been struck down recently. As the establishing doctrine for affirmative action, Order 11246 is at risk of being struck down by the courts. Reflection: Executive Order 11246 is an important federal doctrine for employment law. As a woman, I support historical actions granting women greater equality. My biggest concern about the Order is its sustainability. Executive Orders are not legislation, they are documents written and signed by Presidents. They can be unsigned or changed at any moment by future Presidents. Given the importance of this Order, I believe that Congress should take action to codify the Order into law to guarantee its protections.

Immigration Reform and Control Act Coverage and Prohibition/Requirements: Passed by Congress in 1986 and signed by President Reagan, the Immigration Reform and Control Act implemented new regulations for employers in the hiring process. IRAC Prohibits employers from discriminating against employees based on citizenship in most circumstances. However, it is illegal to knowingly hire persons unauthorized to work in the U.S. Those unauthorized persons include illegal immigrants and those with non- work visas among authors. The order does permit employers to favor hiring U.S. applicants if all applicants are equally qualified for employment. Employers with 4 to 15 employers are prohibited from discriminations on national origin and employers with 4 or more employees cannot discriminate based on citizenship either. There are certain circumstances where discrimination is acceptable though. In jobs where English skills are a part of the requirements, employers can discriminate against qualified applications that do not possess sufficient linguistic skills. Apon its signage, IRAC also allowed for illegal immigrants to apply for permanent resident status is they entered the United States prior to its enactment. Employers must verify an applicant’s status using I-9 forms and valid documents. Enforcement/Remedies: IRCA is enforced by the General Administrative Plan department of the immigration and Naturalization Services agency. To bring a case of IRAC violation it must be proved that employers knowingly hired unauthorized workers or intentionally discriminated against applicants. Employers can claim negligent discrimination as a complete defense. There are both civil and criminal penalties employers could face. Employers are not liable if an applicant submits false documents so long as the employer checked the validity. Employers can face monetary penalties from $250 to $10,0000 per unauthorized persons. There are also

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penalties for repeated violations. In the past only illegal workers were penalized for working but IRAC established employer liability as well. Case Law: Two cases that centered around the Immigration Reform and Control act are C hamber of Commerce v. Whiting , 563 U.S. 582 (2011) and Kansas v. Garcia , 589 U.S. (2020). In Chamber of Commerce v. Whiting, The Supreme Court ruled Arizona law requiring employers use E-Verify system does not violate the Immigration Reform and Control Act and ruled this case was within the scope of congressional authority. In Kansas v. Garcia, the Supreme Court upheld Kansas right to implement a system to find and prosecute illegal immigrants using stolen social security cards and other forms of identification. Impact: IRAC had significant impacts on both employers and employees. By giving certain illegal immigrants the opportunity to apply for citizenship IRAC has expanded the number of eligible applicants. Employers are impacted because they now are liable for employing unauthorized persons. The hiring process itself was also impacted, as it was likely lengthened due to required I-9 verification documents. Employers often hire undocumented workers because they can pay them less and this likely impacted capital as well. Today, employers utilize subcontractors as a loophole for hiring workers because they are not liable for subcontractor’s hiring practices. Reflection: Overall, I believe that IRAC was a beneficial order because it prevents employers from discriminating against eligible workers based on national origin or citizenship. Though it did likely cost employment opportunities for illegal immigrants, IRAC did give them a pathway to residency in certain situations. These persons would not have been eligible without it being nearly impossible to gain status after being in the country illegally. That aside, I do sympathize with illegal immigrants, the immigration process is extremely lengthy and often too expensive.

Most are fleeing from persecution, war, and corrupt countries. I understand the necessity of strict immigration laws to protect our national security, however it should be less expensive and more efficient so people do not resort to illegal entry. If this were to happen, it would drastically reduce the number of illegal persons in the country and increase opportunities for those now legally able to enter.

Vietnam Era Veterans’ Readjustment Assistance Act Coverage and Prohibition/Requirements: Passed by Congress in 1974, the Vietnam Era Veterans’ Readjustment Assistance Act was an anti-discrimination law aimed at helping veterans- especially those disabled- find employment. It prohibits federal contractors and subcontractors from discriminating against veterans in recruiting, hiring and promotions. The veterans protected include disabled veterans, recently separated veterans, active duty, campaign badge or service medal veterans. The law originally only required employers with $150,000 or greater in business with the Government to comply, however the 2013 update reduced the amount to $100,000 or more to hold more employers liable. Employers must adopt a benchmark for hiring veterans in proportion to the national average in the workforce and provide reasonable accommodations for disabled veterans in accordance with state and federal laws. Enforcement/Remedies: The Vietnam Era Veterans’ Readjustment Assistance Act is enforced by the Office of Federal Contract Compliance Programs. Veterans who believe they have been discriminated against by a covered employer can file a complaint with the Secretary of Labor who will investigate the claims. If violations are found the first step of the OFCCP is to mediate reconciliation negotiations between the affected party and the employer. If the employer cannot reach an agreement, the OFCCP may file an administrative complaint with the courts. Employers may be liable for backpay and benefits. If the violation is severe or repeated, an employ may lose all current and future contracts with the government. Case Law: Two notable cases involving this law are Greer v. Chao , civil No, 04-1011 ADM/JSM (D. Minn. Mar. 27, 2006) and Monroe v. Standard Oil Co. 452 U.S. 549 (1981). In Greer v. Chao. In Monroe v. Standard Oil Co, the Supreme Court ruled that employers do not

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have to mark work scheduling accommodations for employees in the reserves when such scheduling accommodations are not afforded to other employees. Impact: This law significantly impacted the labor force and employees. The employment rate of veterans with disabilities is significantly lower than those without. By prohibiting employers from discriminating against veterans it increases disabled veterans’ participation in the labor force. This allows these veterans greater opportunities for jobs and potentially higher pay which benefits veterans and their families. It also impacts employers because it required them to utilize affirmative action strategies to increase the proportion of disabled veterans employed at the company. Reflection: The Vietnam war was very unpopular in America. When veterans returned home, they were often mistreated by the public including in employment. As a result, many veterans probably stopped seeking employment out of fear of discrimination. I think it is upsetting that veterans were treated as such so I am very glad these kinds of laws exist. As a person with disabilities, I understand the worries about losing employment opportunities because of said disabilities, so I believe it is important that laws exist explicitly prohibiting discrimination of that sort.

Equal Pay Act Coverage and Prohibition/Requirements: Passed by congress and signed into law by President Kennedy in 1963, the Equal Pay Act aimed to correct gender compensation discrimination in the workplace. It requires employers to give men and women with equally skilled jobs the same compensation. This includes salary, bonuses, stock options, profit sharing, vacation etc. These protections extend to all employees with jobs within an establishment. An establishment is defined as a “distinct physical place of business rather than an entire business or enterprise consisting of several places of business”. The Equal Pay Act applies to employers regardless of the size and profits. The jobs do not have to be 100% equal, only substantially equal. Employers are allowed to differentiate in compensation based on merit, seniority, employee output quantity and quality and any factors other than sex. Employers are required to post notices informing employees of their protections under this law. Enforcement/Remedies: The Equal Pay Act is Enforcement by the Equal Employment Opportunity Commission. Individuals who feel they have been discriminated against based on gender can file a complaint with the EEOC or go directly to court. The statute of limitations on these claims is two years. Employees that have filed a complaint are protected from retaliation from the employers. Employers found to have violated the Equal Pay Act can be liable for lost wages/ benefits from the discrimination, compensatory damages, attorney fees and even punitive damages. Case Law: Two court cases centered on the Equal Pay Act are Laffey v. Northwest Airlines, Inc., 392 F. Supp. 1076 (D.D.C. 1975) and Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338 (2011)

In Laffey v. Northwest Airlines, a district court ruled that flight attendants have identical duties on domestic and international flights and should be compensated accordingly. In Wal-Mart Stores v. Duke , the Supreme Court ruled that Wal-Mart discriminated against women by giving local supervisors discretion to determine compensation. Impact : The Equal Pay Act Substantially benefited women in the workplace. Before the EPA was passed, women were discriminated against both in compensation and employment opportunities without legal recourse. Now that gender discrimination is prohibited, women have pathways to see recourse against employers that violate this law. It also impacts employers as the penalties of violating the EPA motivate them to comply. Reflection: I believe that all things considered, the Equal Pay Act significantly reduced discrimination against women in the workforce. The gender pay gap has been greatly decreased. Yes recent studies do show that gender gaps do exist, but these studies fail to take into account the choices employees make that affect pay. Women with families are more likely than men to take on lower paying jobs that have greater flexibility. While the pay gap today cannot be completely attributed to choices like the one mentioned, there is no doubt that such gap today is much smaller than that up 60 years ago.

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Executive Order 11246

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