employées, former employees or applicants for employment in the organization units and job categories associated with the complaint. It may also include an analysis of formal and informal personnel procedures and policies associated with the particular practice being examined; interviews with employees, former employees or applicants for employment. Based on the information gathered during the investigation, preliminary findings will be developed by the investigative team and presented to the head of the institution or his designated representative at an exit conference. As in the case of regular reviews, the exit interview does not represent a formal presentation of the findings but provides the contractor an opportunity to submit any additional documentation and discuss any additional factors which may not have been brought to the reviewers' attention during the review and which it wishes the reviewers to consider in preparing their formal findings. If the preliminary finding is that the allegations are valid, the investigative team will advise the institution as to the specific corrective action which may be required by the contractor to remedy the discriminatory treatment, and of the date by which such actions should be taken. It should be noted that while a formal finding is not made at the exit conference, this should not preclude the contractor's acting to remedy a matter brought to his attention during the exit conference, prior to receipt of formal findings. It should be emphasized that the law protects individuals who have complained of discrimination from harassment by the employer because of that complaint. Instances of harassment or reprisals brought to the attention of the Office for Civil Rights may be considered a basis for enforcement action. The same criteria apply to relatives of complainants and to those who aid in a Government inquiry. Steps following non-compliance determinations Show cause notices When the Director of the Office for Civil Rights has reasonable cause to believe that a contractor has violated the equal opportunity clause, he may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement procedures or other appropriate action to ensure compliance should not be instituted. (See 41 CFR 60-1.28) A show cause notice will in all cases be issued to the contractor when it is found that a contractor does not have an affirmative action program or that the program is not acceptable under the standards contained in 41 CFR 60-2.10 through 60-2.32. The Department of action program (37 FR 17766). In other enforcement circumstances, a show cause notice be issued when there is a substantial deviation from an affirmative action program (37 FR 17766). In other enforcement circumstances,, a show cause notice is not required and its use is at the sole discretion of the Director, Office of Federal Contract Compliance, Department of Labor. Show cause notices may also be issued by the Regional Civil Rights Director as a part of letters of findings following either a compliance review or a complaint investigation if it is found that an institution which is required to have developed an affirmative action program has not done so, or that the affirmative action program which has been developed by the institution does not conform to the guidelines contained in 41 CFR 60-2.10 through 60-2.32. Sanctions and penalties The Executive Order authorizes the imposition of the following sanctions and penalties against contractors who have failed to comply with the provisions of the Executive Order and the implementing regulations: 1. Publication of the name of the non-complying contractor. 2. Cancellation, termination, and suspension of contracts or portions of contracts. 3. Debarment from future contracts or extensions or modifications of existing contracts. In addition, the Director, Office of Federal Contract Compliance, may in some cases recommend to the Department of Justice or the Equal Employment Opportunity Commission the initiation of appropriate judicial proceedings, including criminal proceedings by the Department of Justice for providing false nformaton. Prior to the imposition of any sanctions and penalties, reasonable efforts within a reasonable time must be made to secure compliance through conference, conciliation, mediation and persuasion, and the contractor must be afforded an opportunity for a hearing.—We have briefly described the processes of conference, con ciliation, mediation and persuasion above in outlining the compliance review and complaint investigation procedures. When these efforts fail to produce corrective action adequate to overcome any instance of noncompliance, appropriate administrative proceedings leading to the imposition of sanctions and penalties will be initiated. The first step in this process will be a letter giving contractors 10 days in which to comply or request a hearing before an impartial hearing officer. The procedures for imposition of the sanctions and penalties are detailed in 41 CFR 60-1.26, 60-1.27, 60-1.30 and 60-1.31. A hearing adjudicates whether the contractor is out of compliance with the requirements of the Executive Order and its regulations. Except to the extent that applicable law provides otherwise, the burden of proving noncompliance is on the Government. Hearings are conducted in accordance with the Department's rules for such proceedings, published at 45 CFR Part 82 and 37 Fed. Reg. 7323. These rules also prescribe the procedures for intervention of interested parties in these proceedings (section 82.6), and for review within the Department of the decision of the hearing officer (section 82.37). The Office for Civil Rights is responsible for advising HEW contracting agencies as to whether contractors for which they are responsible can comply with the requirements of the equal employment opportunity clause contained in each Federal contract over $10,000. Such advice is binding upon the contracting officers in their determinations of the responsibility of prospective contractors. OFCC is responsible for advising other agencies on the contractor's compliance status. Such advice is ordinarily based upon the information and findings of the OCR review. If the Office for Civil Rights has determined, pursuant to the review and enforcement procedures outlined in this and the preceding section, that a contractor is unable to comply with its equal employment opportunity obligations, the Director may so advise all contracting agencies. This notification may or may not occur in the context of a response to a request for clearance of a new award or of the modification or extension of an existing contract. 8 Notification of "inability to comply" to contracting agencies by the Director of the Office for Civil Rights has the effect of denying or deferring the extension of an existing contract or the award of a new contract which may arise. In such cases, the contractor is entitled to have an immediate hearing on its compliance status concurrent with the second denial or deferral of a contract award. Procedures for a formal hearing, including those for cancellation or termination of existing contracts and debarment from further contracts, are set forth in detail in 41 CFR 60-1.26 (b) (Tab B), and in Chapter 27-10 of the Department of Health, Education, and Welfare General Administration Manual (34 FR 1276), Data gathering and analysis-Suggested procedures A necessary prerequisite to the development of a meaningful affirmative action program is the identification and analysis of problem areas inherent in minority and female employment, and an evaluation of the opportunities for utilization of minorities and women in the contractor's workforce. (See Guidelines p. 2 for an explanation of the obligations of public contractors.) The first step in the contractor's analysis of its workforce is to determine where policies and practices have had the effect of denying equal employment opportunity and benefits to certain groups of persons on a discriminatory basis. This will necessitate the development of a comprehensive inventory of all employees. An employer must then organize this inventory so as to determine : 1. Any patterns of job classification and assignment identifiable by sex or minority group; 2. Any job classification or organizational unit where women and minorities are not employed or are underutilized (see Guidelines p. 3 for a definition of underutilization); and $ 41 CFR 60-2.2 provides in part that "[Any contractor required to develop an affirmative action program who has not complied fully... is not in compliance with Executive Order 11246 and "is unable to comply with the equal employment opportunity clause" unless the government can "otherwise affirmatively determine that the contractor is able to comply with his equal employment obligations or, unless, upon review, it is determined by the Director [Office of Federal Contract Compliance] that substantial issues of law or fact exist as to the contractor's responsibility to the extent that a hearing is, in his sole indgment, required prior to a determination. 41 CFR 60-1.20(d) provides that contracts of $1 million or more, including modifications or extensions of existing contracts which involve the allocation of additional funds in the amount of $1 million or more, can not be awarded without a finding that the prospective contractor is complying with the provisions of the Executive Order and the implementing regulations. 3. Any patterns of difference in rate of pay, status, type of appointment, termination, or rates of advancement within job classifications or organizational units which are identifiable by sex or minority group. The results of a contractor's analysis should be shared and discussed with personnel relations staff, with department and divisional heads and with other supervisors responsible for academic and nonacademic personnel to determine whether patterns suggesting deficiencies in equal employment exist and, if so, why. At this stage of evaluation, some institutions have set up task forces to assist in identifying discriminatory patterns and practices. This has proven particularly useful in the area of academic employment, where the faculty has traditionally had a principal responsibility for matter relating to faculty status. A. Basic data file The contractor must first establish a basic data file on its employees. This is the primary source material of the institution and need not be submitted to the Office for Civil Rights, although the contractor may be required at some time to supply OCR with this information in order to determine the accuracy in the compilation of the data. The basic file should contain the following for each employee: Oriental. All others, including Caucasians, should be identified as "other"); (4) Year or date of birth, or age; (5) Current salary (full-time annual equivalent); (6) Current job family or generic job family; (7) Current job title; (8) Personnel action resulting in current job title (new hire, promotion, transfer, demotion); (9) Date of personnel action resulting in current title (years in current job); (10) Previous job title; (11) Employment status (full-time, part-time, tenured, non-tenured, etc.) ; (12) Educational level: (13) Organizational unit where employed; and (14) Date of hire. The contractor may wish to compile this basic data in the form of a master list, or computer printout, arranged by department, within department by job classification, and within job classification by length of service and salary. The Office for Civil Rights will not normally require that these printouts be submitted. if the summaries described below are compiled in such a way as to be sufficient to determine compliance. In collecting data on employees, it is not necessary to identify the employees by name. Where there is an objection raised by an individual to providing data on his or her race or sex, it should be made clear that individuals are not themselves legally bound to report such information. Where an inventory by voluntary submission of such data on the part of employees is not obtained, however, employers must rely on their superivsors to make identification on the basis of their "best knowledge" of employees. It is clear that no inventory method, and particularly the latter one, will provide perfect accuracy. Nevertheless, the institution must devise some method which will produce reasonably accurate data upon which to base its identification of problems or deficiencies and to develop a responsive affirmative action program. B. Organization The basic data on all employees must be summarized for ready analysis in the following manner: 1. by department, a list of each job classification in descending order (e.g. professor, associate professor; secretary 1, secretary 2, etc.) showing the numbers by sex for each racial and ethnic group, as well as cumulative figures for minorities and for females generally. 2. by job classification, within the entire institution, showing the numbers by sex for each ethnic group, as well as cumulative figures for minorities and for females generally. In order to satisfy this requirement an institution must establish an organization chart, broken down by career ladders; it must also classify all job titles and organize them into career ladders. The duties, educational requirements, experiential requirements and pay ranges for each position must be made reasonably explicit. 3. by department, the mean salary in each job classification, by sex for each racial and ethnic group. 4. by job classification, across department lines, the mean salary in each classification, by sex for each racial and ethnic group. C. Required Analysis 1. Availability of women and minorities.-A unique aspect of equal employment opportunity under the Executive Order is the required compilation of availability data on women and minorities for use as a measure of the contractor's equal employment opportunity. By comparing availability data with current employees, the contractor has an indication of how representative its workforce is of the persons qualified for employment in its institution. The Department of Labor's Revised Order No. 4 (41 CRF 60–2.11(a) (1 and 2)) contains explicit guidelines for constructing an availability index for minorities and an availability index for women. These indices are particularly applicable in the case of nonacademic personnel. The demographic data needed to develop these estimates can generally by secured through the Census Bureau, the Department of Labor's Bureau of Labor Statistics and its Women's Bureau, and from city, county and state governments, including planning commissions and public employment agencies. Estimates concerning minority population, workforce and requisite skills may often be obtained from local Chambers of Commerce, union organizations, employer associations, local educational institutions, community organizations, and minority and women's advocacy groups such as the Urban League and NOW. The community organizations serving minorities and women will often be the closest to the situation and thus should be contacted by the contractor in preparing estimates of availability. For academic personnel the development of availability figures is slightly different, because the recruiting area will vary from institution to institution. It may be a national or even international one. Because the skills required for a particular position are often quite specialized, accurate information on availability may be more difficult to obtain. OCR recommends the following procedure for determining availability figures for women and minorities for academic positions: Many disciplinary associations and professional groups have data that show percentages of racial and national origin minorities available in certain fields, and a 1968 study by the Ford Foundation (Office of Reports) provides percentages of Negroes holding doctorates. To determine the number of women available for senior level positions, the Office recommends that the contractor use data available from the National Register of Scientific and Technical Personnel prepared by the National Science Foundation, and the U.S. Office of Education's annual reports on earned degrees. Another source is the National Research Council of the National Academy of Science. This data has been compiled by sex, but is now being compiled by race, as well. The NSF data is broken down by sex, specialty and subspecialty, highest degree, years of professional experience, and primary work activity. The OE data is broken down by sex, degree earned, school granting degree, and specialty. For women in junior positions, the Office recommends that the contractor consider the OE annual report of earned degrees for the last 3 years and current graduate school enrollments. To the extent that an institution makes a practice of employing its own graduates, the number and percentage of graduate degrees which it has itself awarded to women and minorities in the past ten years or so should be reflected in the goals which it sets for its future faculty appointments. For academic employees the basic national data on earned doctoral degrees will provide the basis for a utilization analysis of a contractor's workforce, unless the contractor can otherwise demonstrate that the labor market upon which it draws is significantly different from this base. For example, some institutions appoint a large number of new faculty from a particular group of graduate schools: such institutions may use data obtained from these schools to determine the availability of women and minorities. If the annual output of women and minorities from the primary feeder schools exceeds the national average, the contractor will be expected to use the higher figures to determine availability. If the output from the feeder schools is less than the national average, the institution will be expected to justify its use of such recruitment sources, or use the higher figures to determine eligibility. 2. Comparison of current workforce with availability data.-The next step for the contractor is to compare the number of women and minorities in its current 43-979-75-pt. 2B- -13 workforce with their availability in the market from which it can reasonably recruit. This comparison must be by comparable job categories. Wherever the comparison reveals that a hiring unit of the university (a department or other section) is not employing minorities and women to the extent that they are available and qualified for work, it is then required to set goals to overcome this situation. Goals should be set so as to overcome deficiencies in the utilization of minorities and women within a reasonable time. In many cases this can be accomplished within 5 years; in others more time or less time will be required. Goals may be set in numbers or percentages, and should reflect not only the number of new hires but also the projected overall composition of the work force in the given unit. It is necessary to set goals that will overcome underutilization in the institution's work force within a reasonable period of time, not merely to set goals for new hires based on current availability. In many institutions the appropriate unit for goals is the school or division, rather than the department. While estimates of availability in academic employment can best be determined on a disciplinary basis, anticipated turnover and vacancies can usually be calculated on a wider basis. While a school, division or college may be the organizational unit which assumes responsibility for setting and achieving goals, departments which have traditionally excluded women or minorities from their ranks are expected to make particular efforts to recruit, hire and promote women and minorities. In other words, the Office for Civil Rights will be concerned not only with whether a school meets its overall goals, but also whether apparent general success has been achieved only by strenuous efforts on the part of a few departments. 3. Salary analysis.—A salary analysis is required for all employees. The basic question to be answered by such an analysis is whether there is a difference in the salary of employees with the same job title that can be attributed to their sex or minority status. However, before this analysis is done, job titles must be compared and overlapping ones merged so that persons doing the same work with different job titles benefit from the salary analysis. The most effective means of undertaking a meaningful salary analysis may vary from institution to institution. Factors which are taken into consideration in determining salary may vary among and even within institutions. The purpose and function of every salary analysis should be to determine whether women or minority group persons are being paid lower wages for performing the same or essentially the same duties. D. Additional types of analyses which are useful in determining compliance 1. Locations analysis.—In an attempt to prevent the development of segregated job titles in any physical location, a locations report is suggested. This report should examine the race-sex-national origin composition of each job title in each major organizational unit of the institution, e.g., athletic department, health services, hospitals, central administration, deans' offices, building and grounds, etc. This analysis may not be revealing where the units involved are small or where the numbers of minorities or women in the job title are few. But where a university discovers that it has one minority or sex group clustered in any one unit, even though there are members of the opposite sex or of other minorities in the same job title clustered elsewhere, corrective action must be taken. If a university discovers the reason for this concentration, it can prevent it from recurring or continuing by altering its policies. This type of analysis may also be useful in determining at what point in the organizational structure women or minorities cease to move upward, and what obstacles to upward mobility may exist within the contractor's organizational structure. 2. Promotion analysis.-A university may also compile data to determine the success or failure of women and minorities in attaining promotion or tenure. One possible method is to compare the time spent prior to gaining promotion or tenure by males and by females of similar experience or by minorities and by others of similar experience. Another comparison could show the percentage in each group eligible for and those granted promotion or tenure. Wide variance among sex-ethnic-racial groups would necessitate further analysis. E. Testing and test validation 41 CFR 60-3 ("Employee Testing and Other Selection Procedures") requires all contractors to validate tests used as a basis for employment decisions, in |