Executive Order 11246 Celebrates 50 Years

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wilcherOn June 4, 1965, President Lyndon B. Johnson gave the commencement address, titled “To Fulfill These Rights,” at Howard University, a historically black college in Washington, D.C. Johnson gave this speech three months before signing Executive Order (EO) 11246, the law that bars employment discrimination and requires affirmative action to promote equal employment opportunity at federal contractor facilities.

In his address, Johnson said:

In far too many ways, American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope.

In our time, change has come to this nation, too. The American Negro, acting with impressive restraint, has peacefully protested and marched, entered the courtrooms and the seats of government, demanding a justice that has long been denied. The voice of the Negro was the call to action. But it is a tribute to America that, once aroused, the courts and the Congress, the president and most of the people, have been the allies of progress.

Johnson spoke about the accomplishments that had been made, but said that more had to be done:

… Freedom is not enough. You do not wipe away the scars of centuries by saying: “Now you are free to go where you want and do as you desire, and choose the leaders you please.”

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race, and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.

Thus it is not enough just to open the gates of opportunity. All of our citizens must have the ability to walk through those gates.

On September 24 and 25, 2015, the 50th anniversary of EO 11246 — which embodied the vision of Johnson and his predecessors — was celebrated.

[Above: Former directors of the OFCCP (left to right): Jaime Ramon, Jerry D. Blakemore, Shirley J. Wilcher, Larry Z. Lorber, Charles E. James Sr., and Cari M. Dominguez]

EO 11246 was signed on September 24, 1965. It was a simple order transferring to the U.S. Department of Labor the enforcement of the nondiscrimination and affirmative action provisions first articulated in President John F. Kennedy’s Executive Order 10925 in 1961. Kennedy’s order required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”

EO 11246 implemented the Kennedy order and consolidated most of the contract compliance programs in the federal government into the Department of Labor. Since 1965, the Office of Federal Contract Compliance Programs (OFCCP) amended the order with Executive Order 11375, adding gender to the list of prohibited bases. Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans Readjustment Assistance Act of 1974 joined EO 11246 as laws enforced by the OFCCP. Later, the Obama Administration amended EO 11246 to add gender identity and sexual orientation to the list of prohibited bases.

The order applies to companies and institutions that receive more than $10,000 in federal contracts. Contractors having $50,000 in federal contracts and 50 employees must prepare a written affirmative action program. The order covers approximately one-quarter of the civilian workforce and reaches employees working in industries such as defense contracting, higher education, banks, and department stores.

Since the order was enacted, the OFCCP has embarked on compliance and enforcement efforts in industries such as textiles and construction, challenged the glass ceiling, defined an applicant in the age of the Internet, tackled compensation discrimination, established goals for individuals with disabilities and benchmarks for veterans, created a tiered review program, and added the LGBTQ community as a protected group.

However, change has not occurred without challenges. Unlike legislation that can be amended only by an act of Congress, EO 11246 may be amended by a stroke of the presidential pen. During the 1980s, there was a concerted effort to amend the order to remove its requirement that contractors use “goals and time tables” in their affirmative action programs. It took the joint actions of members of Congress, civil rights organizations, and private industries to save the order.

Affirmative action was soon vilified as a quota program, and reverse discrimination became a mantra for those who felt threatened by the changing workforce. In the 1990s, the decision in Adarand v. Pena led to a comprehensive review of affirmative action programs during the Clinton Administration. At the end of the review, President Bill Clinton spoke approvingly of affirmative action at the National Archives during his “Mend it, don’t end it speech.” And EO 11246 was saved once again.

On September 24, 2015, the OFCCP Institute — an organization of contractor consultants, also called “The Institute” — held a 50th anniversary celebration for EO 11246 at the Wilson Center in Washington, D.C. During the program, The Institute showed a video, called Equal Opportunity in the U.S.: A Historical Retrospective, which contained interviews with most of the living directors of the OFCCP: Larry Z. Lorber, Ellen Shong, Jerry D. Blakemore, Cari M. Dominguez, Charles E. James Sr., Shirley J. Wilcher, Fred Alvarez, and Jaime Ramon. Sandra Evers-Manly, vice president of global corporate responsibility at Northrop Grumman, moderated the program.

Cari Dominguez spoke on behalf of the living directors and remembered those who had passed away, including the first director, Edward Sylvester, and his successors, George Holland, John Wilks, and Phil Davis. The Institute displayed a historical time line and announced the creation of an Equality at Work Scholarship.

The video will be given to the National Civil Rights Museum in Memphis, Tenn., and the National Archives Museum, in Washington, D.C.●

Shirley J. Wilcher, JD, CAAP, is the executive director of the American Association for Access, Equity, and Diversity. She served as director of the OFCCP from 1994 to 2001. Wilcher is also a member of the INSIGHT Into Diversity Editorial Board.