ing applicants. Where there are data suggesting employment discrimination, the contractor may be called upon to present evidence concerning the valid ity of his unscored procedures regardless of whether tests are also used, the evidence of validity being of the same types referred to in §§ 60-3.4 and 60-3.5. Data suggesting the possibility of discrimination exists, for example, when there are higher rates of rejection of minority candidates than of nonminority candidates for the same job or group of jobs or when there is an underutilization of minority group personnel among present employees in certain types of jobs. If the contractor is unable or unwilling to perform such validation studies, he has the option of adjusting employment procedures so as to eliminate the conditions suggestive of employment discrimination.

§ 60-3.14 Affirmative action.

Nothing in this order shall be interpreted as diminishing a contractor's obligation under both title VII of the Civil Rights Act of 1964 and Executive Order 11246, as amended, to take affirmative action to ensure that applicants or employees are treated without regard to race, color, religion, sex, or national origin. Specifically, where substantially equally valid tests can be used for a given purpose, the contractor will be expected to use the test or battery of tests which will have the least adverse effect on the employment opportunities of minorities or women. Further, the use of tests which have been validated pursuant to this order does not relieve contractors of their obligation to take affirmative action to afford employment and training opportunities to members of classes protected by Executive Order 11246, as amended.

§ 60-3.15 Recordkeeping.

Each contractor shall maintain, and submit upon request, such records and documents relating to the nature and use of tests, the validation of tests, and test results, as may be required under the provisions of this chapter and under the orders and directives issued by the Office of Federal Contract Compliance. § 60-3.16 Sanctions.

(a) The use of tests and other selection techniques by contractors as qualification standards for hire, transfer, promotion, training or retention shall be examined carefully for possible indications of noncompliance with the requirements of Executive Order 11246, as amended.

(b) A determination of noncompliance pursuant to the provisions of this part shall be grounds for the imposition of sanctions under Executive Order 11246, as amended.

60-3.17 Exemptions.

(a) Requests for exemptions from this order or any part thereof must be made in writing to the Director, Office of Federal Contract Compliance, Washington, D.C., and must contain a statement of reasons supporting the request. Such request shall be forwarded through and shall contain the endorsement of the head of the contracting agency. Exemption may be granted for good cause.

(b) The requirements of this part shall not apply to any contract when the head of the contracting agency determines that such contract is essential to the national security and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the agency head will notify the Director, in writing, within 30 days.

§ 60-3.18 Effect of this part on other rules and regulations.

(a) All orders, instructions, regulations, and memoranda of the Secretary of Labor, other officials of the Department of Labor and contracting agencies are hereby superseded to the extent that they are inconsistent herewith.

(b) Nothing in this part shall be interpreted to diminish the present contract compliance review and complaint investigation programs.

PART 60-5-WASHINGTON PLAN

NOTE. An amendment at 39 FR 19943. June 5, 1974, extended the expiration date of the Washington Plan until June 30, 1974. As noted at 39 FR 24648, July 5, 1974, the expiration date was further extended until July 31, 1974.

AUTHORITY: The provisions of this Part 60-20 issued under sec. 201, E.O. 11246, 30 F.R. 12319, and E.O. 11375, 32 F.R. 14303.

SOURCE: The provisions of this Part 60-20 appear at 35 F.R. 8888, June 9, 1970, unless otherwise noted.

§ 60-20.1 Title and purpose.

The purpose of the provisions in this part is to set forth the interpretations and guidelines of the Office of Federal Contract Compliance regarding the implementation of Executive Order 11375 for the promotion and insuring of equal opportunities for all persons employed or seeking employment with Government contractors and subcontractors or with contractors and subcontractors perform ing under federally assisted construction contracts, without regard to sex. Experience has indicated that special problems related to the implementation of Executive Order 11375 require a definitive treatment beyond the terms of the order itself. These interpretations are to be read in connection with existing regulations, set forth in Part 60-1 of this chapter.

§ 60-20.2 Recruitment and advertisement.

(a) Employers engaged in recruiting activity must recruit employees of both sexes for all jobs unless sex is a bona fide occupational qualification.

(b) Advertisement in newspapers and other media for employment must not express a sex preference unless sex is a bona fide occupational qualification for the job. The placement of an advertisement in columns headed "Male" or "Female" will be considered an expression of a preference, limitation, specification, or discrimination based on sex.

§ 60-20.3 Job policies and practices.

(a) Written personnel policies relating to this subject area must expressly indicate that there shall be no discrimination against employees on account of sex. If the employer deals with a bargaining representative for his employees and there is a written agreement on conditions of employment, such agreement shall not be inconsistent with these guidelines.

(b) Employees of both sexes shall have an equal opportunity to any available job that he or she is qualified to perform, unless sex is a bona fide occupational qualification.

NOTE: In most Government contract work there are only limited instances where valid reasons can be expected to exist which would justify the exclusion of all men or all women from any given job.

(c) The employer must not make any distinction based upon sex in employment opportunities, wages, hours, or other conditions of employment. In the area of employer contributions for insurance, pensions, welfare programs and other similar "fringe benefits" the employer will not be considered to have violated these guidelines if his contributions are the same for men and women or if the resulting benefits are equal.

(d) Any distinction between married and unmarried persons of one sex that is not made between married and unmarried persons of the opposite sex will be considered to be a distinction made on the basis of sex. Similarly, an employer must not deny employment to women with young children unless it has the same exclusionary policies for men; or terminate an employee of one sex in a particular job classification upon reaching a certain age unless the same rule is applicable to members of the opposite sex.

(e) The employer's policies and practices must assure appropriate physical facilities to both sexes. The employer may not refuse to hire men or women, or deny men or women a particular job because there are no restroom or associated facilities, unless the employer is able to show that the construction of the facilities would be unreasonable for such reasons as excessive expense or lack of space.

(f) (1) An employer must not deny a female employee the right to any job that she is qualified to perform in reliance upon a State "protective" law. For example, such laws include those which prohibit women from performing in certain types of occupations (e.g., a bartender or a core-maker); from working at jobs requiring more than a certain number of hours; and from working at jobs that require lifting or carrying more than designated weights.

(2) Such legislation was intended to be beneficial, but, instead, has been found to result in restricting employment opportunities for men and/or women. Accordingly, it cannot be used as a basis for denying employment or for establishing sex as a bona fide occupational qualification for the job.

(g) (1) Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer's leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female employee meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing. The conditions applicable to her leave (other than the length thereof) and to her return to employment, shall be in accordance with the employer's leave policy.

(2) If the employer has no leave policy, childbearing must be considered by the employer to be a justification for a leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original job or to a position of like status and pay, without loss of service credits.

(h) The employer must not specify any differences for male and female employees on the basis of sex in either mandatory or optional retirement age.

(i) Nothing in these guidelines shall be interpreted to mean that differences in capabilities for job assignments do not exist among individuals and that such distinctions may not be recognized by the employer in making specific assign. ments. The purpose of these guidelines is to insure that such distinctions are not based upon sex.

§ 60-20.4 Seniority system.

Where they exist, seniority lines and lists must not be based solely upon sex. Where such a separation has existed, the employer must eliminate this distinction.

§ 60-20.5 Discriminatory wages.

(a) The employer's wages schedules must not be related to or based on the sex of the employees.

NOTE. The more obvious cases of discrimination exist where employees of different sexes are paid different wages on jobs which require substantially equal skill, effort and responsibility and are performed under similar working conditions.

(b) The employer may not discriminatorily restrict one sex to certain job classifications. In such a situation, the employer must take steps to make jobs available to all qualified employees in all classifications without regard to sex. (Example: An electrical manufacturing company may have a production division with three functional units: One (assembly) all female; another (wiring), all male; and a third (circuit boards), also all male. The highest wage attainable in the assembly unit is considerably less than that in the circuit board and wiring units. In such a case the employer must take steps to provide qualified female employees opportunity for placement in job openings in the other two units.)

(c) To avoid overlapping and conflicting administration the Director will consult with the Administrator of the Wage and Hour Administration before issuing an opinion on any matter covered by both the Equal Pay Act and Executive Order 11246, as amended by Executive Order 11375.

§ 60-20.6 Affirmative action.

(a) The employer shall take affirmative action to recruit women to apply for those jobs where they have been previously excluded.

NOTE. This can be done by various methods. Examples include: (1) including in itineraries of recruiting trips women's colleges where graduates with skills desired by the employer can be found, and female students of coeducational institutions and (2) designing advertisements to indicate that women will be considered equally with men for jobs.

(b) Women have not been typically found in significant numbers in management. In many companies management trainee programs are one of the ladders to management positions. Traditionally, few, if any, women have been admitted into these programs. An important element of affirmative action shall be a commitment to include women candidates in such programs.

(c) Distinctions based on sex may not be made in other training programs. Both sexes should have equal access to all training programs and affirmative action programs should require a demonstration by the employer that such access has been provided.

Sec.

PART 60-30-HEARING RULES FOR SANCTION PROCEEDINGS

SUBPART A-GENERAL INFORMATION

60-30.1 Applicability of rules, waiver, modification.

60-30.2 Definitions.

60-30.3 Computation of time.

SUBPART B-FORM AND FILING OF DOCUMENTS AND PLEADINGS

60-30.4 Form.

60-30.5 Filing; service.

SUBPART C-PREHEARING PROCEDURES

60-30.6 Notice of proposed cancellation, termination, or ineligibility.

60-30.10 Motions; disposition of motions.

60-30.11 Participation by interested persons.

C0-30.12 Admissions as to facts and documents.

60-30.13 Production of documents and things and entry upon land for inspection and other purposes.

60-30.14 Depositions upon oral examination.

60-30.15 Prehearing conferences.

60-30.34 Cooperation by agencies.

60-30.35 Effect of this part on other rules and regulations.

AUTHORITY: Secs. 201, 205, 208, 209, 301, 302(b), and 303(a) of Executive Order 11240, as amended, 30 F.R. 12319; 32 F.R. 14303; § 60-1.26 of Part 60-1 of this chapter (41 CFR Part 60-1).

SOURCE: 37 FR 20537, Sept. 30. 1972, unless otherwise noted.

SUBPART A-GENERAL INFORMATION

§ 60-30.1 Applicability of rules, waiver, modification.

(a) Applicability of rules. These rules of procedure supplement the provisions of § 60-1.26(b) of this chapter. The rules govern the practice and procedure for hearings conducted by the Office of Federal Contract Compliance with respect to the imposition of sanctions under sections 208(b), 209(a) (5) and (6) of Executive Order No. 11246, as amended.

(b) Waiver, modification. Upon notice to all parties, the hearing examiner or the Secretary may, with respect to matters pending before him modify or waiver any rule herein upon a determination that no party will be prejudiced and that the ends of justice will be served thereby.

§ 60-30.2 Definitions.

As used in these rules:

(a) "Associate Solicitor" means the Associate Solicitor for Labor Relations and Civil Rights, U.S. Department of Labor, Washington, D.C. 20210, who has been designated to prosecute all actions under this part and § 60-1.26 (b) of this chapter in the name of the Director.

(b) "Chief Hearing Examiner" means the Chief Hearing Examiner, U.S. Department of Labor, Washington, D.C. 20210.

(e) "Department" means the Department of Labor.

(d) "Director" means the Director of the Office of Federal Contract Compliance of the Department of Labor.

(e) "Hearing Examiner" means the hearing officer designated by the Chief Hearing Examiner, pursuant to section 208(b) of Executive Order 11246, as amended, and § 60-1.26 (b) of this chapter to conduct hearings under section 209 of the order.

(f) "Notice" means, unless the context clearly indicates otherwise, the Notice of Proposed Cancellation, Termination, or Ineligibility.

(g) "The order" means Executive Order 11246 of September 24, 1965 (30 F.R. 12313), as amended (32 F.R. 14303).

(h) "Party" means a respondent: the Director of the Office of Federal Contract Compliance of the Department of Labor and any person or organization participating in a proceeding pursuant to § 60-30.11 (a).

(i) "Respondent" means a person or organization against whom sanctions are proposed because of alleged violations of Executive Order 11246, and the rules, regulations, and orders thereunder.

(j) "Secretary" means Secretary of the Department of Labor.

§ 60-30.3 Computation of time.

In computing any period of time under these rules or in an order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed in the District of Columbia, in which event it includes the next following business day.

SUBPART B-FORM AND FILING OF DOCUMENTS AND PLEADINGS

§ 60-30.4 Form.

Documents and pleadings filed pursuant to a proceeding herein shall be dated, the original signed in ink, shall show the docket description and title of the proceeding, and shall show the title, if any, and address of the signatory. Copies need not be signed, but the name of the person signing the original shall be reproduced.

§ 60-30.5 Filing; service.

(a) Manner of service. Service upon any party shall be made by the party filing the document or pleading by delivering a copy or mailing a copy to the last known address: Provided, however, That the notice of hearing shall be sent by registered mail, return receipt requested, pursuant to § 60-1.26(b)(1) of this chapter.

(b) Upon whom served. All papers shall be served upon counsel of record and upon parties not represented by counsel, and upon the Associate Solicitor or his designee.

(c) Proof of service. A certificate of the person serving the pleading or other document by personal delivery or by mailing, setting forth the manner of said service shall be prima facie proof of service.