68 Human Resources Management for Public and Nonprofi t Organizations
requirements. In 1988, the Supreme Court extended use of the disparate
impact theory in cases involving subjective employment practices such as
interviews, performance appraisals, and job recommendations ( Watson v.
Fort Worth Bank and Trust , 1988). Statistical data based on the four - fi fths
rule can be used in a disparate impact case to establish prima facie
evidence of discrimination when decisions are based on subjective employ-
ment practices.Affi rmative Action: Executive Orders and Other Federal Laws
This section explains affi rmative action and the requirements imposed
on employers through Executive Orders 11246 and 11375, the Rehabilita-
tion Act of 1973, and the Vietnam Veterans Readjustment Act of 1974.
Chapter Four briefl y discusses equal employment opportunity and the
executive orders and federal laws that require employers to engage in
affi rmative action.Executive Orders 11246 and 11375
In 1965, President Johnson signed Executive Order 11246, which prohibited
discrimination in federal employment or by federal contractors on the
basis of race, creed, color, or national origin. In 1967, it was amended by
Executive Order 11375 to change the word creed to religion and to add sex
discrimination to the other prohibited items. The executive order applies
to all federal agencies, contractors, and subcontractors, including all the
facilities of the agency holding the contract. Contractors and subcontrac-
tors with more than fi fty thousand dollars in government business and fi fty
or more employees are not only prohibited from discriminating, but must
also take affi rmative action to ensure that applicants and employees are
not treated differently as a function of their sex, religion, race, color, or
national origin. The order authorizes the cancellation of federal contracts
for failure to meet the order ’ s guidelines. It requires a contractor to post
notices of equal employment opportunity and to document its compliance
to the Department of Labor.
Executive Order 11246 is enforced by the Department of Labor
through the Offi ce of Federal Contract Compliance Programs (OFCCP),
a branch of the Department of Labor ’ s Employment Standards Adminis-
tration. It promulgates guidelines and conducts audits of federal contractors
to ensure compliance with the executive orders. The OFCCP is charged