Chapter 3

Ten-Year Check-Up: Have Federal Agencies Responded to Civil Rights Recommendations?

Volume II: An Evaluation of the Departments of Justice, Labor, and Transportation

The Department of Labor (DOL) office responsible for enforcing Title VI is the Civil Rights Center, the only organizational unit within the Department with civil rights enforcement authority over financial assistance programs. In this report, the Directorate of Civil Rights (DCR), which was the name of the civil rights office when the Commission's 1996 report was published, is also referred to as the Civil Rights Center (CRC), its name today. The name change took effect in 1998. The Office of Federal Contract Compliance Programs (OFCCP) within DOL is responsible for coordinating and enforcing civil rights compliance by federal contractors. Between 1993 and 1996, the Commission made 35 recommendations to the Department of Labor, which included 26 to the Civil Rights Center[1] and nine directed to OFCCP.[2]

In 1996, the Commission found that the Directorate of Civil Rights was strong in some areas and weak in others. For example, the Commission found that DOL's DCR could serve as a model for other federal agencies in how it handles many of its day-to-day functions. DCR was rated highly in terms of staff training, data collection and analysis, and policy guidance. Areas in which DCR was lacking in its enforcement of civil rights included the ineffective use of its policy guidance and regulations, the organization and structure of its office, the preparation and use of its civil rights implementation plan, its lack of direct interaction with community and advocacy groups, its nonperformance of pre-award and post-award compliance reviews, its lack of a monitoring system for following up on action plans or conciliation agreements, and its lack of an oversight and monitoring system to evaluate Title VI compliance policies and activities at the state and local levels.

In its 2002 review, the Commission finds that some of the areas in which the Civil Rights Center has improved include the reorganizing of the Center into three new offices, placing a high priority on providing technical assistance and training, revising its Title VI regulations, and establishing a system to follow-up on corrective action plans or conciliation agreements. The Center did not implement some of the Commission's recommendations for various reasons, including lack of resources. The implementation of the Workforce Investment Act of 1998 and other pressing tasks caused resources to be diverted from other tasks.

In 1993, the Commission found that because the Department of Labor's Office of Federal Contract Compliance had overlapping jurisdiction with the Department of Transportation in relation to airport construction, there was inconsistency and duplication of effort; OFCCP's contacts with community groups during compliance reviews were inadequate; and OFCCP needed to reassess its approach to determine compliance under the system of localized affirmative action agreements known as Hometown Plans.

In 2002, the Commission finds that there is still inconsistency and a duplication of effort between the Department of Transportation and OFCCP because the Department of Labor still has not updated its December 1979 memorandum of understanding with the Department of Transportation to reflect the interim agreement to exchange information. In addition, OFCCP still does not solicit involvement from the community in selecting companies for compliance reviews. However, OFCCP did reassess its approach to determining compliance and now applies uniform compliance standards to all covered construction contractors and subcontractors.

The purpose of the Civil Rights Center (CRC or the Center), located in the Office of the Assistant Secretary for Administration and Management, is to ensure compliance with nondiscrimination statutes. CRC enforces various federal statutes and regulations that prohibit (1) discrimination in DOL-funded programs and activities, (2) discrimination based on disability by certain public entities and in DOL-conducted activities, and (3) discrimination within DOL itself.[3] When the Commission s 1996 Title VI enforcement report was published, CRC consisted of two offices, the Office of Equal Employment Opportunity and Affirmative Action and the Office of Program Compliance and Enforcement (OPCE). The Office of Equal Employment Opportunity and Affirmative Action oversaw internal civil rights and equal employment opportunity matters, such as processing employment-related complaints filed against DOL and managing special emphasis and affirmative action programs within DOL. OPCE was responsible for all external, recipient-related civil rights activities and consisted of the Division of Technical Assistance and Compliance Monitoring and the Division of Equal Opportunity Investigations and Enforcement. Within OPCE, these two divisions were responsible for conducting post-award compliance and technical assistance activities and processing discrimination complaints filed against recipients. The Center has since been reorganized.[4]

The statutory authorities for the Civil Rights Center remain the same as in 1996, except for a change in the workforce system financial assistance programs.[5] On August 7, 1998, President Clinton signed the Workforce Investment Act of 1998 (WIA).[6] As a result, many of the recommendations made by the Commission to the Civil Rights Center concerning the Job Training Partnership Act of 1982 (JTPA) were not implemented because the WIA supersedes the JTPA as the Department of Labor's primary mechanism for providing financial assistance for a comprehensive system of job-training and placement services for adults and eligible youth.[7] The WIA, which became effective on July 1, 2000, is the first major reform of the workforce development system since the JTPA. Through WIA, Congress sought to replace the fragmented training and employment system that existed under the previous program.[8]

In evaluating DOL, the Commission found that DOL/CRC could serve as a model for other federal agencies in how it handles many of its day-to-day functions.[9] The Commission found DOL to be strong in staff training, data collection and analysis, and policy guidance. However, recommendations were made that could enhance DOL's effectiveness in such areas as organizational structure, funding and resources, oversight of state recipients, and complaint investigation.

In terms of organizational structure, in 1996 the Commission suggested that the DCR director's ability to obtain funding for civil rights enforcement, influence DOL policy development on civil rights enforcement, and promote DCR's mission relative to other DOL obligations could be better served if DCR was established as an independent office headed by an assistant secretary who reported directly to the Secretary.[10] To promote a more efficient Title VI enforcement program, the Commission also recommended that DCR acquire legal staff to provide legal guidance and interpretation for Title VI enforcement. At the time the Title VI report was published, the legal staff was located in the Office of the Solicitor.

When the Commission issued its 1996 report, OPCE was divided into units responsible for internal and external civil rights enforcement. The Commission recommended that DCR create additional divisions for external civil rights enforcement and acquire staff specifically assigned to perform pre-award reviews, community outreach and public education, and Title VI staff training.[11]

The Commission also found that only one person, a senior policy advisor to the director, was assigned to policy development. At that time, staff addressed policy issues in an ad hoc fashion. The Commission recommended that DCR establish within OPCE a policy and planning unit to provide enforcement policy guidance to DCR staff and state recipients with Title VI enforcement responsibilities. It also suggested that DOL model the organizational structure of its external civil rights enforcement unit after the Department of Education's Office for Civil Rights.[12]

The Commission found that DCR's regional staff did not perform activities related to Title VI enforcement. As a result, DCR must ensure that it has budgetary resources to finance travel costs for headquarters staff to perform on-site reviews of recipients and states that perform civil rights enforcement activities. The Commission concluded that if travel costs outweigh the expense of regional external civil rights enforcement staffing, DOL should consider placing some external civil rights enforcement staff in regional offices.[13]

The Commission also found that OPCE's staff size was insufficient to ensure adequate enforcement of Title VI in all federally assisted and conducted programs. During the 1980s, DCR's allocation of staff and resources to OPCE for civil rights enforcement for federally assisted and federally conducted programs decreased, resulting in equal opportunity enforcement efforts being limited to JTPA programs. The Commission recommended that DOL provide DCR with sufficient staff and resources to ensure that DCR s implementation, enforcement, compliance, oversight, and monitoring activities for Title VI enforcement reached all federally assisted DOL programs and not just JTPA programs.[14]

In 1996, the Commission discovered that DCR s civil rights implementation plans provided a detailed description of DOL s Title VI enforcement program; however, the plans did not function, as the Department of Justice requires, as a planning tool for DOL. As a result, the Commission recommended that DCR develop planning and priorities initiatives that incorporate the qualities of its implementation plan, strategic plan, and work plan.[15]

Although DOL's Title VI guidelines, regulations, policies, and procedures, especially those pertaining to the JTPA, were better than those of many other federal agencies in providing guidance on Title VI enforcement in 1996, several deficiencies were identified. The Title VI regulations did not contain an appendix listing the federally assisted programs to which the regulations apply, nor did they reflect the amendments to Title VI created by the Civil Rights Restoration Act of 1987. Although DOL does not meet the Department of Justice's requirement that it have Title VI guidelines for each of its federally assisted programs, DOL had issued detailed guidance manuals or guidebooks for at least three of its federally assisted programs. The Commission recommended that DOL add an appendix to its general Title VI regulations specifying the types of financial assistance programs DOL administers. In addition, it recommended that DOL issue Title VI guidelines or policy guidance stating the implications of the Civil Rights Restoration Act of 1987 and provide practical illustrations of civil rights issues based on DOL-assisted programs.[16]

The Commission found that DOL used training materials developed for the states as a Title VI complaint manual and communicated standard operating procedures to be followed in processing Title VI complaints and in conducting compliance reviews by issuing directives on specific topics. At that time, Center officials indicated that they were working on compliance and complaint manuals that would replace other documents used for those purposes.[17] The Commission recommended that DOL promulgate uniform Title VI enforcement procedures for its civil rights enforcement staff and funding recipients, including instructions for implementing Title VI, from the application and pre-award process through compliance review and complaint processing, in each type of program DOL sponsors.[18]

When the Commission's 1996 report was published, several recommendations were made to DCR concerning education and outreach and technical assistance. DCR generally had no direct interaction with community and advocacy groups and instead delegated education and outreach activities to its recipients. As a result, the Commission recommended that DCR solicit comments and suggestions from affected communities and funding recipients on its Title VI enforcement efforts.[19] It also recommended that DCR ensure that recipients educate the public about program accessibility. Although DCR provided technical assistance on request and regularly conducted training seminars for state and local agency staff on enforcement topics such as data collection and analysis, on-site compliance reviews, complaint processing, and resolution of noncompliance, the Commission recommended that DCR regularly train its staff and recipients staff on the methods of enforcement, such as conducting compliance reviews.[20]

The Commission found that during the mid-1980s and into the early 1990s, although DCR received an increasing number of civil rights complaints, the number of Title VI complaints received declined dramatically. As a result, the Commission recommended that DCR increase its public education about Title VI's nondiscrimination requirement and the rights afforded federal funding program participants and beneficiaries.[21]

Conducting pre-award reviews, post-award desk-audit reviews, and on-site compliance reviews is essential to an effective Title VI enforcement program. In 1996, the Commission found that DCR (1) did not conduct pre-award reviews, (2) did not perform desk audits except as part of its on-site compliance review process, and (3) had performed a decreasing number of Title VI compliance reviews. The Commission recommended that before granting funding DCR should ensure that a state would maintain an active Title VI enforcement program. The Commission also recommended that DCR implement pre-award reviews for all programs receiving federal funds. In addition, DCR should conduct post-award desk audits of information from its data collection and analysis system to ensure continuing compliance with Title VI among all recipients. This asset would allow it to reach a large number of recipients in desk-audit reviews. The Commission recommended that DCR conduct on-site compliance reviews of all grant recipients facilities, or at least those identified to be in noncompliance by desk-audit reviews.[22] When found to be in noncompliance, DCR encouraged recipients to comply voluntarily with Title VI. The Commission recommended that DCR establish a system of monitoring these commitments to corrective actions.[23]

In 1996, the Commission found that DCR's staff training was among the best offered by federal agencies evaluated in the Title VI report. It conducted ongoing training for its external civil rights enforcement staff, including computer training, instruction on writing and management skills, seminars concerning particular DOL funding programs, briefings on each of DOL's federally funded programs, instruction on methods for conducting enforcement activities, and training on statutes DCR enforces. But DCR had not conducted training specifically on Title VI. As a result, the Commission recommended that DCR hold regular training for its staff and recipients staff on issues specific to Title VI enforcement and compliance.[24]

The Commission concluded that the Job Training Partnership Act data collection and analysis system was an excellent recipient compliance evaluation model that facilitated Title VI enforcement. But one drawback of the system was that DCR could only gather information from the database during compliance reviews. The Commission recommended that DCR require state recipients to maintain information on applicants for JTPA funding and all collected data be accessible online or through other means at any time instead of only during compliance reviews.[25] The Commission also recommended that DCR provide detailed instructions on the type of data to be collected from recipients and subrecipients.

The Commission also found that DCR never used methods of administration as a means of monitoring states enforcement efforts until 1993. As of 1996, DCR's Title VI enforcement activities and oversight of state-administered programs focused primarily on its JTPA programs. The Commission recommended that DCR establish a systematic oversight and monitoring program to evaluate the Title VI compliance policies and activities connected with all programs and activities administered at the state and local levels, not just JTPA programs.[26]

In terms of organizational structure and line authority, the Civil Rights Center continues to report to the Secretary through the assistant secretary for administration and management. The Center claimed that this reporting structure does not impede its ability to achieve its objectives.[27] Additionally, legal guidance and interpretation for agencies within DOL continue to be provided through the Office of the Solicitor. No agency within DOL, except for the Inspector General's Office, has independent legal staff.[28]

Shortly before the Commission's Title VI report was published, the Center was reorganized and three new offices were established.[29] The Office of Enforcement plans, coordinates, and conducts the Center s enforcement activities to ensure that recipients of financial assistance from DOL and its program offices adhere to equal opportunity and nondiscrimination laws, regulations, policies, standards, procedures, and guidelines and that uniform remedies and sanctions are appropriately imposed.[30] According to the Center, the Office of Enforcement has engaged in pre-award reviews with the Employment and Training Administration, the major DOL grant-making agency, in the review of grant applications under the new Workforce Investment Act, which prohibits discrimination based on race, color, and national origin.[31] The second new office, the Office of Compliance Assistance and Planning, is responsible for overall program planning, and conducting and coordinating compliance and technical assistance activities related to civil rights statutes.[32] The Office of Mediation, Counseling, and Evaluation handles the mediation of complaints filed by participants and beneficiaries of DOL federal financial assistance programs.[33]

Under the new organization, the office of Compliance Assistance and Planning develops and disseminates standards, procedures, guidelines, and regulations to assist DOL grant-making agencies and funding recipients in meeting their equal opportunity responsibilities. Additionally, the Office reviews legislative proposals, new legislation, executive orders, regulations, and administrative actions to determine their impact on the Center's compliance and enforcement activities.[34]

In 2002, the Center stated that regional staff still does not perform Title VI enforcement functions, and that there are no current plans to place external civil rights enforcement staff in regional offices.[35] The Center's budget remained at $4.9 million or below from fiscal years 1993 to 1999, until fiscal year 2000 and after when it increased to $5.7, then $5.9 million (see figure 1). External civil rights activities received 57 percent of the Center's funding and staffing.[36] However, during fiscal year 2000 and after CRC was burdened with implementing the new WIA program. Thus, little of the increased funding was likely to finance the ongoing costs of compliance reviews, particularly travel costs for site visits.

In 2002, the Center indicated that DOL has provided additional staff and resources to implement a comprehensive enforcement program for Title VI (see figure 1 and table 2).[37] According to the Center, when reductions have occurred, it was because the effects of inflation and pay increases had to be absorbed. Although the Center indicated it had received additional staff, in actuality staffing levels have fluctuated during the past decade and between fiscal years 1993 and 2002 the number of FTEs decreased by 28 percent (see table 2). Since fiscal year 2000, the Center's budget has remained flat (see figure 1).

The Center submits its civil rights implementation plans to the Department of Justice annually. According to the Center, the reports are prepared in accordance with instructions from the Department of Justice (DOJ), and all questions and concerns posed by DOJ have been fully addressed.[38]

In its January 2002 implementation plan, the Center failed to describe letters of finding, settlement agreements, or other resolutions of complaint investigations or compliance reviews issued since the previous year's submission. In addition, it listed only five activities and/or objectives that it would be conducting to enforce Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and similar statutes covered by Executive Order 12,250. The Center indicated that it did not perform any pre-award and post-award reviews in fiscal year 2001.[39]

The Commission finds that the compliance and complaint manuals that were supposed to have been issued several years ago have not been updated since the 1996 report was issued.[40] The Center does have a methods of administration training manual.[41]

In addition, work began on the development of the Title VI appendix immediately after the Commission issued its 1996 report. However, before completion, resources for legislative/regulatory issues were diverted to other pressing tasks, such as the development of (1) legislation to replace the JTPA; (2) regulations implementing the Workforce Investment Act (WIA) and its nondiscrimination and equal opportunity provisions; (3) training and written guidance on the new legislation; and (4) regulations, guidance, and training on new welfare- to-work legislation. As a result, the work on the Title VI appendix will have to begin anew.[42]

With leadership from the Department of Justice, the Center is revising Title VI regulations to reflect the language of the Civil Rights Restoration Act of 1987. A proposed revision to DOL's Title VI and Section 504 rules was published in the Federal Register on December 6, 2000. The Center has reviewed and processed DOJ's final preamble and rule through DOL's departmental clearance process. At the time this report was being prepared the Center was awaiting DOJ's publication of the final rules in the Federal Register.[43]

Now that WIA has replaced JTPA, the regulations implementing the nondiscrimination and equal opportunity provisions of WIA are applicable only to recipients of WIA Title I financial assistance. The Center does not have the authority to extend their applicability to DOL recipients who receive no WIA Title I financial assistance. DOL's general Title VI regulations have not been revised to incorporate the requirements of the nondiscrimination and equal opportunity provisions of WIA or to make these provisions broadly applicable to other DOL-assisted programs.[44]

As of 2002, the Center has not developed policies specific to Title VI. According to the Center, it does not have the resources to develop policies related to enforcement specific to each nondiscrimination law it enforces. Instead, regulations and policies have been developed for the nondiscrimination and equal opportunity provisions of WIA, which prohibits discrimination based on Title VI and nine other bases. Since the passage of WIA, the Center's attention has been focused on providing guidance to the Center's staff and DOL recipients as to the compliance issues associated with WIA and its nondiscrimination and equal opportunity provisions. When WIA s Section 188 was published, the Center began working on guidance for its state recipients on the development of WIA methods of administration. DOL has also published guidance to recipients on meeting the needs of those who are limited English proficient, highlighting practices considered discriminatory.[45]

According to the Center, policy directives are distributed to pertinent staff and recipients. The distribution to Title VI staff members is through e-mails and in-boxes, since they are all located in Washington, D.C. Recipients obtain copies of policy directives through the mail, as participants in one of the Center's training programs, or through the Center's Web site.[46]

During the Commission's 2002 review, the Center indicated that it places a high priority on providing technical assistance and training to DOL funding recipients.[47] The training and assistance provided recently includes training conferences on the implementation of WIA, annual equal opportunity conferences, training courses on alternative dispute resolution, workshops on methods of administration, and information on equal opportunity and nondiscrimination in DOL financial assistance programs, which is available on the Center's Web site.[48] Technical assistance, education, and outreach training that has taken place since the Commission last reviewed the Civil Rights Center includes:

In addition to formalized training and technical assistance, the Center staff also provides technical assistance for recipients on an ongoing basis, telephonically, or through the exchange of electronic documents.[53]

Currently, the Center is developing several publications that will be widely disseminated to beneficiaries and potential beneficiaries, and the public. The publications will be available in English and several other languages, but until those publications are available the Center will continue to use the Department of Justice's generic publications, such as its Title VI brochure.[54]

The Center indicated that in developing certain policies, guidance, training syllabuses, and enforcement tools, comments and suggestions from affected communities and funding recipients are considered. For example, in developing the guidance on limited English proficiency, the Center solicited comments and suggestions from affected communities and funding recipients.[55] However, the Center has not strategically planned and designed an outreach plan that uses 2000 Census data and other labor market or demographic data to target groups that may be victims of discrimination.[56]

The number of Title VI complaints the Center receives has continued to decline since the Commission published its 1996 report. Between fiscal years 1997 and 2001, complaints decreased by 76 percent, from 107 in 1997 to 26 in 2001.[57] In the 1996 report, the Center indicated that it received so few Title VI complaints because most of them were resolved at the state level.[58]

As recommended by the Commission in 1996, the Center has increased its public education about Title VI nondiscrimination requirements through several training modules. With the implementation of WIA, priority was on training and education. One of the training modules developed was titled Equal Opportunity and Nondiscrimination Laws Applicable to USDOL Financial Assistance Recipients and it was designed to educate funding recipients on Section 188 of WIA, the Age Discrimination Act, Section 504, and Title VI. The module begins with the showing of the Department of Justice s Title VI video titled Understanding and Abiding by Title VI of the Civil Rights Act of 1964. More than 250 copies of the video have been distributed to DOL recipients in English, Spanish, Korean, Vietnamese, and Chinese. When national conferences are included, the Center's education and training has reached every state and more than 33 percent of the nation's 600 local workforce areas.[59]

In 2002, the Center indicated that resources continue to limit its ability to conduct pre-award reviews of all DOL funding recipients.[60] In fiscal year 2001, the Center did not conduct any pre-award reviews or post-award reviews or have any legal administrative enforcement (see table 3). However, all DOL grant agreements include equal opportunity and nondiscrimination assurance language as specified and required by the Center. In fiscal year 2000, the Center conducted 76 pre-award reviews (desk audits) but no post-award reviews.[61] With the implementation of WIA, all states were required to submit applications for receipt of financial assistance. The Center committed resources to the pre-award review process and assigned three staff persons to participate with the Department's grant-making agency in the review of all state applications. The Center's collaboration was necessary for a state's application for financial assistance to be approved. The Department's grant-making agency and the Center continue to coordinate on pre-award reviews of all major WIA grant modifications states submit.[62]

Post-award desk reviews are conducted as an enforcement mechanism independent of on-site reviews.[63] The last time the Center conducted a post-award review was in fiscal year 1998, when it completed 84 post-award reviews (see table 3).[64] According to the Center, under WIA each state is required to submit methods of administration. The MOA describes the actions a state will take to ensure that its WIA financially assisted programs, activities, and recipients are complying, and will continue to comply, with the nondiscrimination and equal opportunity requirements of WIA and its implementing regulations.[65] The WIA regulations require each governor to establish an MOA for the state s programs.[66] By submitting an MOA, the governor agrees to follow its provisions and failure to do so may result in a finding of noncompliance. The Center indicated that the MOA provides a reasonable guarantee of compliance with federal civil rights laws.[67]

In its annual post-award desk reviews, the Center verifies that each state and local workforce investment area has designated equal opportunity officers. In addition, desk audits are designed to review different administrative requirements each year. In fiscal year 2002 they will evaluate communications about equal opportunity, such as whether posters describing how to file a discrimination complaint are prominently displayed for the general public. Desk audits will also examine data reporting and record keeping with respect to requirements for maintaining discrimination complaint logs.[68]

The Center has conducted post-award on-site compliance reviews since the Commission's 1996 review, but indicated that staff resources do not permit an extensive annual compliance review schedule.[69] Additionally, there are thousands of primary and secondary recipients for national and state block grant programs and it would be impossible to perform an on-site review of all grant recipients facilities.[70] According to the Center, to best utilize resources, compliance reviews are initiated based on congressional request, the nature and frequency of complaints, and strategic planning goals. Further, desk audits often assess compliance with regulatory requirements that would not necessarily require an on-site visit to validate noncompliance. If desk audits established an inference of disparate impact, an on-site review would be conducted to confirm or invalidate the desk-review findings.[71]

When the Center conducts on-site reviews, the area of focus determines the plan and design of the review. A compliance review of a program or activity within a program always includes interviews of recipient officials, community members, and beneficiaries affected by the recipient s program; analysis of statistical evidence on both participation rates and application rejection rates; and other evidence that may establish different treatment on protected grounds.[72]

The results of on-site reviews are put in writing and include specific findings, recommendations, and timetables for achieving compliance. In addition, all recipients in the full funding stream, including the primary recipient from the Department, are advised in writing of the findings.[73]

In response to the Commission's recommendation that the Center develop a system for monitoring the commitments to corrective actions, the Center reported that it has a reminder system to follow-up on corrective action plans or conciliation agreements.[74]

According to the Center, DOL is committed to life-long learning for staff. Within the Department, CRC staff has the freedom to take training from a variety of sources. The Center's premier training initiative is its annual National Equal Opportunity Conference.[75] The conference is in its 13th consecutive year, and attendance has grown from an average of 100 recipient staff to about 300.[76] The national conference, designed to reach recipient staff with direct equal opportunity responsibility, includes 26 workshops and three plenary sessions. In addition, a full week in the summer is set aside for an off-site staff civil rights training retreat, where staff receives updates on recent court decisions, complaint planning and investigation procedures, processing ADA Title II complaints, and creating an investigative file.[77] Staff has also been provided with weeklong courses in mediation and compliance monitoring.[78]

Today, the Department's grant office has management information systems for all its programs. According to the Center, it does not prescribe how (either manually or electronically) recipient data must be maintained. Nor will the Center require submission of data that can be obtained from existing reporting requirements of the Department's grant office. But each recipient is required to collect data and maintain records in accordance with procedures the Center prescribes, as it deems necessary to determine whether the recipient has complied or is complying with the nondiscrimination and equal opportunity provisions. The system and format in which the records and data are kept must be designed to allow the Center to conduct statistical or other quantifiable data analyses to verify the recipient's compliance with all nondiscrimination regulations. Records must include, but not be limited to, records on applicants, registrants, eligible applicants/registrants, participants, terminees, employees, and applicants for employment. Each recipient must record the race/ethnicity, sex, age, and where known, disability status, of every applicant, registrant, eligible applicant/registrant, participant, terminee, applicant for employment, and employee.[79]

The Center does have full access to the Department's grant office's information systems to retrieve any data desired. Although all systems are electronic, they cannot be all accessed online. Under the current Workforce Investment Act program, a funding recipient creates an individual record and electronically forwards it to the Department's grant office, where the records are merged to form a national database. According to the Center, it has access to this database and is able to sort data fields over any period of time.[80]

According to the Center, with the passage of WIA, the WIA methods of administration has become the principal vehicle for oversight and monitoring of continuing state programs at the state and local levels. The Department's strategic planning and the Center's annual planning guide the monitoring priorities. Currently, the President's agenda and the Secretary of Labor's strategic goals focus on improving access to people with disabilities and, as a result, the Center's monitoring is aligned with these initiatives. For fiscal years 2002 and 2003, the Center's monitoring will focus on reviewing recipients compliance with disability laws and regulations. The Center will review a representative sample of the One-Stop Centers in the cities of New York and Miami in this regard.[81]

Under Executive Order 11,246, the Office of Federal Contract Compliance Programs requires federal contractors to (1) refrain from discrimination based on race, color, national origin, creed, or sex; and (2) take affirmative action in promoting equal employment opportunity for protected minority groups and women. OFCCP has jurisdiction over all contractors and subcontractors holding nonexempt federal contracts and subcontracts exceeding $10,000.[82] The regulations implementing the executive order establish different compliance requirements for construction and nonconstruction (supply and service) contractors. Although all covered contractors and subcontractors, including construction and nonconstruction, are required to engage in nondiscriminatory employment practices and take affirmative steps to ensure equal employment opportunity, nonconstruction contractors that have a contract of $50,000 or more and 50 or more employees are also required to develop written affirmative action programs.[83]

The Commission's monitoring of OFCCP focused on implementation of Executive Order 11,246 at the Denver International Airport and Hartsfield Atlanta International Airport and resulted in a 1993 report.[84] The study raised concerns about DOL's civil rights enforcement planning; the agency's contact and coordination with other agencies, such as the Department of Transportation (DOT), that have overlapping jurisdiction for civil rights enforcement; the methods of selecting contractors to receive compliance reviews; the involvement of community groups in the compliance review process; and the monitoring of contractors affirmative action commitments and training programs for minority and female workers.

Since the Commission published its 1993 report, the Department of Labor's civil rights responsibilities have not changed, although two recent statutory amendments have altered OFCCP's jurisdiction regarding veterans.[85] OFCCP's responsibilities regarding Executive Order 11,246, as amended, have not changed. OFCCP continues to provide the leadership for administering nondiscrimination and equal employment laws and regulations that apply to federal contractors and subcontractors through compliance evaluations, complaint investigations, and a comprehensive compliance assistance plan.[86]

In 1993, the Commission recommended that Congress require DOL to submit annual reports on civil rights enforcement efforts relating to federal contracts and financial assistance programs.[87] The Commission indicated that this would assist DOL in establishing aggressive, fully integrated, and fully funded civil rights programs.[88]

As a result of its review in 1993, the Commission recommended that OFCCP audit compliance reviews conducted of Denver International Airport contractors by its Denver district office to ensure that the district office was appropriately selecting contractors for compliance reviews.[89]

Regulations require OFCCP to evaluate individual federal contractors and subcontractors affirmative action commitments for work performed in a particular geographic area. In 1993, the Commission found that contractors in the Denver metropolitan area were required to submit only one affirmative action report encompassing all sites in a geographic area.[90] The Commission was concerned that a contractor could comply with nondiscrimination laws at one site and not at another. Furthermore, OFCCP was not able to enforce civil rights compliance because it was unable to target a specific site of a given contractor.[91] The Commission recommended that OFCCP reassess its approach to determining compliance under this system of localized affirmative action agreements known as Hometown Plans.[92]

In its 1993 report, the Commission was concerned about the overlapping jurisdiction of DOL and DOT in relation to airport construction. In an attempt to minimize inconsistency and duplication of effort, in 1979 DOL/OFCCP and the Federal Highway Administration entered into an interim memorandum of understanding for exchanging information. Although DOT and DOL were to develop similar agreements applicable to all operating components of DOT within 120 days of ratifying the MOU, the Commission found that this never happened.[93] In addition, the Commission recommended that DOT and DOL establish a joint-review and information-sharing agreement between OFCCP's regional office, the city and county of Denver, and the Federal Aviation Administration (FAA).[94]

It was also recommended that the FAA, OFCCP, and Denver City and County Contract Compliance Office undertake a joint study to address several questions raised by the Commission's Denver forum speakers.[95] Some of the questions were (1) are all federal employment and contracting guidelines regarding opportunities for women and minorities being met, (2) are federally mandated outreach programs for both contracting and employment used appropriately and consistently, and (3) are reasonable and appropriate training and apprenticeship programs in place and are they serving all members of the Denver metropolitan area?[96]

The Commission also discovered that lack of training for unskilled workers was widely cited as a major hurdle facing minorities and women seeking to participate in federally assisted projects.[97] As a result, the Commission recommended that the Secretary of Labor investigate existing training apprenticeship programs to determine whether they conform to federal affirmative action guidelines, ensure that training and apprenticeship programs are mandatory for federal and federally assisted construction contractors, and direct a national effort to develop and implement training and apprenticeship programs.[98]

Current OFCCP regulations require federal and federally assisted construction contractors to develop on-the-job training opportunities and/or participate in training programs that expressly include minorities and women.[99]

A concern expressed during the Commission's 1992 Denver forum was that OFCCP's contacts with community groups during compliance reviews have been inadequate.[100] These contacts are needed to gauge whether contractors are making good-faith efforts to recruit women and minorities and to identify contractors that are alleged discriminators.

In 2002, OFCCP stated it does not submit annual reports directly to Congress, but continues to submit performance information to Congress in DOL's annual report.[101] For example, in DOL's fiscal year 2001 annual report, one of DOL's goals is to foster equal opportunity workplaces.[102] Progress in fair and equitable federal contractor workplaces is measured by whether the equal employment opportunity performance of federal contractors and subcontractors is improved among those that have had prior contact with DOL through evaluations, outreach, or technical assistance; and within industries where data indicate the likelihood of equal opportunity problems is greatest; and by whether federal contractors and subcontractors compensation for discrimination is reduced.[103]

To achieve these ends, during fiscal year 2001, OFCCP was to identify industries in which data indicated the likelihood of equal employment problems is greatest and establish baselines for the indicators. During fiscal year 2001, DOL was behind schedule in establishing baselines for all its measures of the effects of its enforcement activities.[104]

OFCCP is required to use neutral selection criteria to select contractors for compliance reviews.[105] A Compliance Evaluation Scheduling List is generated from OFCCP's database and sets the agenda for the majority of compliance evaluations OFCCP conducts.[106] Other types of OFCCP compliance evaluations are targeted using neutral factors such as the size of the contractor.[107]

According to OFCCP, it does monitor, at both the regional and national office levels, district office selection decisions to ensure that contractors are selected appropriately.[108] District offices must complete exceptions reports justifying any deviation from the ordering of contractors on the selection list the national office provides.[109] Monitoring to ensure vigorous enforcement of all OFCCP programs is performed at the regional level and through the Quality Assurance Program at OFCCP s national office.[110] OFCCP's regional and national offices also review the conciliation agreements the district office develops.[111] In addition, OFCCP's national office monitors the status of cases that have been referred to the Solicitor's Office for administrative enforcement.[112]

The localized affirmative action agreements, known as Hometown Plans, were voluntary tri-partite affirmative action agreements between a local area's construction contractors, unions, and community representatives. They were originally developed because of OFCCP's belief that the localized activities of construction contractors needed a geographical approach.[113] According to OFCCP, these plans seemed successful in increasing minority and female participation in federally funded construction contracts, but county governments, which funded the Hometown Plans, stopped financing them.[114] It was also difficult to obtain agreement among the three parties involved in these plans, resulting in the number of approved plans declining steadily. When contractors and local groups were unable to come to an agreement, OFCCP used Imposed Plans for certain geographic areas.[115] Because of the difficulties encountered, OFCCP no longer uses the Hometown Plan approach to determine if a contractor is in compliance.[116]

OFCCP now applies uniform compliance standards to all covered construction contractors and subcontractors. This is preferable to the Hometown Plan approach because (1) compliance standards apply to all construction contracts and not just to contracts in a local area; (2) compliance standards apply directly to the contractors and subcontractors, rather than to the Hometown Plan; (3) once coverage is established for a particular construction contractor or subcontractor, all the employees are also covered, even if they do not perform work on a federally funded construction project; and (4) few Hometown Plans operated with the cooperation of all parties and results were difficult to monitor.[117]

According to OFCCP, the Department of Labor still has not updated its December 1979 memorandum of understanding with the Department of Transportation to reflect the interim agreement to exchange information. However, operating procedures are in effect whereby OFCCP regional and district offices work with the local Federal Highway Administration (FHWA) and state DOT officials to exchange information on major construction projects underway in their respective geographic areas.[118]

In 2002, OFCCP indicated that its regional and district offices work closely with their local FHWA and state DOT counterparts when scheduling highway construction contractors for compliance reviews.[119] While some OFCCP offices have program implementation plans and written agreements, others have periodic meetings with FHWA and state DOT officials to avoid duplication and to reduce the burden on federal contractors.[120] OFCCP offices are notified of the highway contracts DOT and state officials award. In addition, when pre-construction conferences on projects that involve federal funds are scheduled, DOT and state highway officials notify OFCCP regional and district offices.[121] During pre-construction conferences and joint seminars, OFCCP personnel provide compliance assistance training.[122]

In response to the Commission's 1993 recommendation that DOT and DOL develop operating procedures that would create coordinated civil rights enforcement activities and thus avoid confusion over responsibilities and duplicated efforts, especially for enforcement of Title VI, OFCCP indicated that it does not have any enforcement responsibility pertaining to Title VI.[123] Under its executive order program, OFCCP is authorized to conduct compliance evaluations of federal and federally assisted construction contractors to determine, among other things, whether those contractors are in compliance with OFCCP requirements.[124] OFCCP is also authorized to investigate complaints of discrimination filed against federal or federally assisted construction contractors. If the complaint involves an individual claim of discrimination, OFCCP refers the matter to the U.S. Equal Employment Opportunity Commission (EEOC) for appropriate processing under Title VII of the Civil Rights Act of 1964, as amended. This agreement is based on a 1981 memorandum of understanding with EEOC, which was revised in April 1999.[125]

During the Commission's 2002 review, OFCCP indicated it has no record of participating in a joint study with FAA, Denver City, and the County Contract Compliance Office.[126] OFCCP stated these recommendations go beyond the enforcement requirements afforded by Executive Order 11,246 and its implementing regulations.[127] According to OFCCP, it does not have enforcement authority over federally mandated outreach programs and training apprenticeship programs serving the Denver metropolitan area.[128] In addition, OFCCP program requirements do not cover all federal employment and contracting guidelines regarding opportunities for women and minorities.[129]

Today, OFCCP still does not solicit involvement from the community in selecting companies for compliance reviews.[130] However, before a scheduled compliance evaluation, OFCCP does contact the EEOC district office, the state and local Fair Employment Practices Agencies, the local Veterans Employment and Training Services, and if the federal contractor is located near an Indian reservation, the reservation's Tribal Employment Rights Council for complaint information on the federal contractor.[131] OFCCP could also contact the affected communities at this point.

[1] U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, June 1996 (hereafter cited as USCCR, Federal Title VI Enforcement).

[2] USCCR, Federal Title VI Enforcement; U.S. Commission on Civil Rights, Enforcement of Equal Employment and Economic Opportunity Laws and Programs Relating to Federally Assisted Transportation Projects, January 1993 (hereafter cited as USCCR, Programs Relating to Federally Assisted Transportation Projects).

[3] U.S. Department of Labor, U.S. DOL OASAM Civil Rights Enforcement for DOL Grant Recipients, Civil Rights Program, n.d., <http://www.dol.gov/dol/oasam/public/programs /civil.htm>.

[4] See pp. 32 33 of this report.

[5] Department of Labor s Interrogatory Response to the United States Commission on Civil Rights Ten-Year Review of Civil Rights Enforcement, Civil Rights Center, Mar. 15, 2002, p. 1 (hereafter cited as Civil Rights Center Interrogatory).

[6] 29 C.F.R., Part 37 (1999).

[7] WIA and JTPA Statute and Regulation Index, <http://www.oalj.dol.gov/public/jtpa/refrnc/jstatin.htm>.

[8] General Accounting Office, Workforce Investment Act Better Guidance Needed to Address Concerns Over New Requirements, October 2001, p. 6.

[9] USCCR, Federal Title VI Enforcement.

[10] Ibid., pp. 354 55, 373.

[11] Ibid.

[12] Ibid., pp. 354 55, 373 74.

[13] Ibid., pp. 355, 374.

[14] Ibid., pp. 357 59, 375.

[15] Ibid., p. 384.

[16] Ibid., p. 376.

[17] Ibid., p. 361.

[18] Ibid., pp. 361, 377.

[19] Ibid., p. 381.

[20] Ibid.

[21] Ibid., p. 380.

[22] Ibid., pp. 378 79.

[23] Ibid., p. 380.

[24] Ibid., pp. 369, 383.

[25] Ibid., p. 383.

[26] Ibid., p. 381.

[27] Civil Rights Center Interrogatory, p. 3.

[28] Ibid., p. 4.

[29] Ibid.

[30] U.S. Department of Labor, Civil Rights Center, Mission and Organization, p. 5 (hereafter cited as CRC, Mission and Organization ).

[31] Civil Rights Center Interrogatory, pp. 4 5.

[32] CRC, Mission and Organization, p. 7. The civil rights statutes include "Arial Unicode MS"; letter-spacing:-.1pt">Title VI and Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Title IX of the Education Amendments of 1972, Title II of the Americans with Disabilities Act, and others.

[33] CRC, Mission and Organization, p. 7.

[34] Ibid., p. 8.

[35] Civil Rights Center Interrogatory, p. 5.

[36] Ibid., p. 3.

[37] Ibid., p. 2.

[38] Ibid., p. 5.

[39] Civil Rights Center, FY 2002 Implementation Plans, pp. 1, 4.

[40] USCCR, Federal Title VI Enforcement, p. 361; Civil Rights Center Interrogatory, p. 14.

[41] U.S. Department of Labor, Civil Rights Center, Methods of Administration Under the Workforce Investment Act, n.d.

[42] Civil Rights Center Interrogatory, p. 11.

[43] Ibid., p. 12.

[44] Ibid.

[45] Ibid., pp. 12 13.

[46] Ibid. p. 13.

[47] Ibid., p. 6.

[48] Ibid., pp. 6 9.

[49] Ibid., p. 6.

[50] Ibid.

[51] Ibid., pp. 7 8.

[52] Ibid., p. 8.

[53] Ibid., p. 9.

[54] Ibid., p. 11.

[55] Ibid., p. 10.

[56] Ibid., p. 11.

[57] Ibid., p. 22.

[58] USCCR, Federal Title VI Enforcement, p. 364.

[59] Civil Rights Center Interrogatory, p. 23.

[60] Ibid., p. 14.

[61] U.S. Department of Labor, Civil Rights Center, FY 2001 Civil Rights Implementation Plan, pp. 7 12.

[62] Civil Rights Center Interrogatory, p. 14.

[63] Ibid., pp. 14 15.

[64] U.S. Department of Labor, Civil Rights Center, FY 2001 Civil Rights Implementation Plan, pp. 5 11.

[65] Civil Rights Center Interrogatory, p. 15.

[66] 29 C.F.R., Part 37. See also Civil Rights Center Interrogatory, p. 15.

[67] Civil Rights Center Interrogatory, p. 21.

[68] Ibid., p. 16.

[69] Ibid., p. 18.

[70] Ibid., pp. 16 17. In 2001, the number of recipient sites included 2,768 WIA One-Stop Centers. There were also 1,503 Employment Services Offices and 949 Senior Centers. These are just a few of DOL's assisted programs.

[71] Civil Rights Center Interrogatory, pp. 17 18.

[72] Ibid., p. 18.

[73] Ibid., p. 16.

[74] Ibid., p. 22.

[75] Ibid., p. 24. See also U.S. Department of Labor, Civil Rights Center, 11th Annual National Equal Opportunity Training Conference, Aug. 9 11, 2000.

[76] Civil Rights Center Interrogatory, p. 24.

[77] Ibid.

[78] Ibid.

[79] Ibid., p. 19.

[80] Ibid., p. 20.

[81] Ibid. A One-Stop Center is a place where all employment and training services are put into one place to make them easy to use. These career centers help workers find jobs and help employers find qualified employees.

[82] Department of Labor s Interrogatory Response to the United States Commission on Civil Rights Ten-Year Review of Civil Rights Enforcement, Office of Federal Contract Compliance Programs, Mar. 15, 2002, p. 2 (hereafter cited as OFCCP Interrogatory).

[83] OFCCP Interrogatory, p. 2.

[84] USCCR, Programs Relating to Federally Assisted Transportation Projects.

[85] OFCCP Interrogatory, pp. 1 2.

[86] U.S. Department of Labor, Fiscal Year 2001 Annual Report, p. 113.

[87] USCCR, Programs Relating to Federally Assisted Transportation Projects, p. 15.

[88] Ibid.

[89] Ibid., p. 14.

[90] Ibid., p. 13.

[91] Ibid.

[92] Ibid., p. 15.

[93] Ibid., p. 9.

[94] Ibid., p. 15.

[95] Ibid.

[96] Ibid.

[97] Ibid., p. 14.

[98] Ibid.

[99] OFCCP Interrogatory, p. 6.

[100] USCCR, Programs Relating to Federally Assisted Transportation Projects, pp. 4, 10.

[101] OFCCP Interrogatory, p. 6; see DOL, FY 2001 Annual Report.

[102] DOL, FY 2001 Annual Report, p. 111.

[103] Ibid., p. 113.

[104] Ibid.

[105] OFCCP Interrogatory, p. 3.

[106] Ibid.

[107] Ibid.

[108] Ibid.

[109] Ibid.

[110] Ibid.

[111] Ibid.

[112] Ibid.

[113] Ibid., p. 4.

[114] Ibid.

[115] Ibid.

[116] Ibid.

[117] Ibid., pp. 4 5.

[118] Ibid., p. 5.

[119] Ibid., p. 6.

[120] Ibid.

[121] Ibid., pp. 6 7.

[122] Ibid., p. 7.

[123] Ibid., p. 5.

[124] Ibid.

[125] Ibid.

[126] Ibid., p. 7.

[127] Ibid.

[128] Ibid.

[129] Ibid.

[130] Ibid., p. 3.

[131] Ibid., p. 4.

TABLE 2 Civil Rights Center Staffing History

Fiscal Year	Full Time Equivalents (FTEs)
1993	68
1994	61
1995	60
1996	56
1997	52
1998	50
1999	52
2000	51
2001	53
2002	50

Source: Department of Labor's Interrogatory Response to the U.S. Commission on Civil Rights Ten-Year Review of Civil Rights Enforcement, Civil Rights Center, Mar. 15, 2002, p. 3.

TABLE 3 Civil Rights Center Workload

Fiscal Year	Pre-award Reviews	Post-award Reviews	Administrative Enforcement
2001	0	0	0
2000	76	0	0
1999	0	0	10
1998	0	84	8
1997	0	2	0

Source: Department of Labor, Civil Rights Center, Civil Rights Implementation Plans, FYs 1997 2002.