\[Code of Federal Regulations\]

\[Title 29, Volume 4\]

\[Revised as of July 1, 2001\]

From the U.S. Government Printing Office via GPO Access

\[CITE: 29CFR1608\]

\[Page 225-232\]

TITLE 29\--LABOR

CHAPTER XIV\--EQUAL

EMPLOYMENT OPPORTUNITY

COMMISSION

PART 1608\--AFFIRMATIVE ACTION APPROPRIATE UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED

Sec.

1608.1 Statement of purpose.

1608.2 Written interpretation and opinion.

1608.3 Circumstances under which voluntary affirmative action is

appropriate.

1608.4 Establishing affirmative action plans.

1608.5 Affirmative action compliance programs under Executive Order No.

11246, as amended.

1608.6 Affirmative action plans which are part of Commission

conciliation or settlement agreements.

1608.7 Affirmative action plans or programs under State or local law.

1608.8 Adherence to court order.

1608.9 Reliance on directions of other government agencies.

1608.10 Standard of review.

1608.11 Limitations on the application of these guidelines.

1608.12 Equal employment opportunity plans adopted pursuant to section

717 of title VII.

Authority: Sec. 713 the Civil Rights Act of 1964, as amended, 42

U.S.C. 2000e-12, 78 Stat. 265.

Source: 44 FR 4422, Jan. 19, 1979, unless otherwise noted.

Sec. 1608.1 Statement of purpose.

\(a\) Need for Guidelines. Since the passage of title VII in 1964,

many employers, labor organizations, and other persons subject to title

VII have changed their employment practices and systems to improve

employment opportunities for minorities and women, and this must

continue. These changes have been undertaken either on the initiative of

the employer, labor organization, or other person subject to title VII,

or as a result of conciliation efforts under title VII, action under

Executive Order 11246, as amended, or under other Federal, State, or

local laws, or litigation. Many decisions taken pursuant to affirmative

action plans or programs have been race, sex, or national origin

conscious in order to achieve the Congressional purpose of providing

equal employment opportunity. Occasionally, these actions have been

challenged as inconsistent with title VII, because they took into

account race, sex, or national origin.

\[\[Page 226\]\]

This is the so-called \`\`reverse discrimination\'\' claim. In such a

situation, both the affirmative action undertaken to improve the

conditions of minorities and women, and the objection to that action,

are based upon the principles of title VII. Any uncertainty as to the

meaning and application of title VII in such situations threatens the

accomplishment of the clear Congressional intent to encourage voluntary

affirmative action. The Commission believes that by the enactment of

title VII Congress did not intend to expose those who comply with the

Act to charges that they are violating the very statute they are seeking

to implement. Such a result would immobilize or reduce the efforts of

many who would otherwise take action to improve the opportunities of

minorities and women without litigation, thus frustrating the

Congressional intent to encourage voluntary action and increasing the

prospect of title VII litigation. The Commission believes that it is now

necessary to clarify and harmonize the principles of title VII in order

to achieve these Congressional objectives and protect those employers,

labor organizations, and other persons who comply with the principles of

title VII.

\(b\) Purposes of title VII. Congress enacted title VII in order to

improve the economic and social conditions of minorities and women by

providing equality of opportunity in the work place. These conditions

were part of a larger pattern of restriction, exclusion, discrimination,

segregation, and inferior treatment of minorities and women in many

areas of life.\<SUP\>2\</SUP\> The Legislative Histories of title VII,
the

Equal Pay Act, and the Equal Employment Opportunity Act of 1972 contain

extensive analyses of the higher unemployment rate, the lesser

occupational status, and the consequent lower income levels of

minorities and women.\<SUP\>3\</SUP\> The purpose of Executive Order No.

11246, as amended, is similar to the purpose of title VII. In response

to these economic and social conditions, Congress, by passage of title

VII, established a national policy against discrimination in employment

on grounds of race, color, religion, sex, and national origin. In

addition, Congress strongly encouraged employers, labor organizations,

and other persons subject to title VII (hereinafter referred to as

\`\`persons,\'\' see section 701(a) of the Act) to act on a voluntary
basis

to modify employment practices and systems which constituted barriers to

equal employment opportunity, without awaiting litigation or formal

government action. Conference, conciliation, and persuasion were the

primary processes adopted by Congress in 1964, and reaffirmed in 1972,

to achieve these objectives, with enforcement action through the courts

or agencies as a supporting procedure where voluntary action did not

take place and conciliation failed. See section 706 of title VII.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\<SUP\>2\</SUP\> Congress has also addressed these conditions in other

laws, including the Equal Pay Act of 1963, Pub. L. 88-38, 77 Stat. 56

(1963), as amended; the other titles of the Civil Rights Act of 1964,

Pub. L. 88-352, 78 Stat. 241 (1964), as amended; the Voting Rights Act

of 1965, Pub. L. 89-110, 79 Stat. 437 (1965), as amended; the Fair

Housing Act of 1968, Pub. L. 90-284, title VII, 82 Stat. 73, 81 (1968),

as amended; the Educational Opportunity Act (title IX), Pub. L. 92-318,

86 Stat. 373 (1972), as amended; and the Equal Employment Opportunity

Act of 1972, Pub. L. 92-261, 86 Stat. 103 (1972), as amended.

\<SUP\>3\</SUP\> Equal Pay Act of 1963: S. Rep. No. 176, 88th Cong.,

1st Sess., 1-2 (1963). Civil Rights Act of 1964: H.R. Rep. No. 914, pt.

2, 88th Cong., 1st Sess. (1971). Equal Employment Opportunity Act of

1972: H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971); S. Rep. No. 92-

415, 92d Cong., 1st Sess. (1971). See also, Equal Employment Opportunity

Commission, Equal Employment Opportunity Report\--1975, Job Patterns for

Women in Private Industry (1977); Equal Employment Opportunity

Commission, Minorities and Women in State and Local Government\--1975

(1977); United States Commission on Civil Rights, Social Indicators of

Equality for Minorities and Women (1978).

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\(c\) Interpretation in furtherance of legislative purpose. The

principle of nondiscrimination in employment because of race, color,

religion, sex, or national origin, and the principle that each person

subject to title VII should take voluntary action to correct the effects

of past discrimination and to prevent present and future discrimination

without awaiting litigation, are mutually consistent and interdependent

methods of addressing social and economic conditions which precipitated

the enactment of title VII. Voluntary

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affirmative action to improve opportunities for minorities and women

must be encouraged and protected in order to carry out the Congressional

intent embodied in title VII.\<SUP\>4\</SUP\> Affirmative action under
these

principles means those actions appropriate to overcome the effects of

past or present practices, policies, or other barriers to equal

employment opportunity. Such voluntary affirmative action cannot be

measured by the standard of whether it would have been required had

there been litigation, for this standard would undermine the legislative

purpose of first encouraging voluntary action without litigation.

Rather, persons subject to title VII must be allowed flexibility in

modifying employment systems and practices to comport with the purposes

of title VII. Correspondingly, title VII must be construed to permit

such voluntary action, and those taking such action should be afforded

the protection against title VII liability which the Commission is

authorized to provide under section 713(b)(1).

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\<SUP\>4\</SUP\> Affirmative action often improves opportunities for all

members of the workforce, as where affirmative action includes the

posting of notices of job vacancies. Similarly, the integration of

previously segregated jobs means that all workers will be provided

opportunities to enter jobs previously restricted. See, e.g., EEOC v.

AT&T, 419 F. Supp. 1022 (E.D.Pa. 1976), aff\'d, 556 F. 2d 167 (3rd Cir.

1977), cert. denied, 98 S.Ct. 3145 (1978).

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\(d\) Guidelines interpret title VII and authorize use of section

713(b)(1). These Guidelines describe the circumstances in which persons

subject to title VII may take or agree upon action to improve employment

opportunities of minorities and women, and describe the kinds of actions

they may take which are consistent with title VII. These Guidelines

constitute the Commission\'s interpretation of title VII and will be

applied in the processing of claims of discrimination which involve

voluntary affirmative action plans and programs. In addition, these

Guidelines state the circumstances under which the Commission will

recognize that a person subject to title VII is entitled to assert that

actions were taken \`\`in good faith, in conformity with, and in
reliance

upon a written interpretation or opinion of the Commission,\'\'
including

reliance upon the interpretation and opinion contained in these

Guidelines, and thereby invoke the protection of section 713(b)(1) of

title VII.

\(e\) Review of existing plans recommended. Only affirmative action

plans or programs adopted in good faith, in conformity with, and in

reliance upon these Guidelines can receive the full protection of these

Guidelines, including the section 713(b)(1) defense. See Sec. 1608.10.

Therefore, persons subject to title VII who have existing affirmative

action plans, programs, or agreements are encouraged to review them in

light of these Guidelines, to modify them to the extent necessary to

comply with these Guidelines, and to readopt or reaffirm them.

Sec. 1608.2 Written interpretation and opinion.

These Guidelines constitute \`\`a written interpretation and opinion\'\'

of the Equal Employment Opportunity Commission as that term is used in

section 713(b)(1) of title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e-12(b)(1), and Sec. 1601.33 of the Procedural

Regulations of the Equal Employment Opportunity Commission (29 CFR

1601.30; 42 FR 55,394 (October 14, 1977)). Section 713(b)(1) provides:

In any action or proceeding based on any alleged unlawful employment

practice, no person shall be subject to any liability or punishment for

or on account of (1) the commission by such person of an unlawful

employment practice if he pleads and proves that the act or omission

complained of was in good faith, in conformity with, and in reliance on

any written interpretation or opinion of the Commission \* \* \*. Such a

defense, if established, shall be a bar to the action or proceeding,

notwithstanding that \* \* \* after such act or omission, such

interpretation or opinion is modified or rescinded or is determined by

judicial authority to be invalid or of no legal effect \* \* \*.

The applicability of these Guidelines is subject to the limitations on

use set forth in Sec. 1608.11.

Sec. 1608.3 Circumstances under which voluntary affirmative action is

appropriate.

\(a\) Adverse effect. Title VII prohibits practices, procedures, or

policies which have an adverse impact unless they are

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justified by business necessity. In addition, title VII proscribes

practices which \`\`tend to deprive\'\' persons of equal employment

opportunities. Employers, labor organizations and other persons subject

to title VII may take affirmative action based on an analysis which

reveals facts constituting actual or potential adverse impact, if such

adverse impact is likely to result from existing or contemplated

practices.

\(b\) Effects of prior discriminatory practices. Employers, labor

organizations, or other persons subject to title VII may also take

affirmative action to correct the effects of prior discriminatory

practices. The effects of prior discriminatory practices can be

initially identified by a comparison between the employer\'s work force,

or a part thereof, and an appropriate segment of the labor force.

\(c\) Limited labor pool. Because of historic restrictions by

employers, labor organizations, and others, there are circumstances in

which the available pool, particularly of qualified minorities and

women, for employment or promotional opportunities is artificially

limited. Employers, labor organizations, and other persons subject to

title VII may, and are encouraged to take affirmative action in such

circumstances, including, but not limited to, the following:

\(1\) Training plans and programs, including on-the-job training,

which emphasize providing minorities and women with the opportunity,

skill, and expericence necessary to perform the functions of skilled

trades, crafts, or professions;

\(2\) Extensive and focused recruiting activity;

\(3\) Elimination of the adverse impact caused by unvalidated

selection criteria (see sections 3 and 6, Uniform Guidelines on Employee

Selection Procedures (1978), 43 FR 30290; 38297; 38299 (August 25,

1978));

\(4\) Modification through collective bargaining where a labor

organization represents employees, or unilaterally where one does not,

of promotion and layoff procedures.

Sec. 1608.4 Establishing affirmative action plans.

An affirmative action plan or program under this section shall

contain three elements: a reasonable self analysis; a reasonable basis

for concluding action is appropriate; and reasonable action.

\(a\) Reasonable self analysis. The objective of a self analysis is to

determine whether employment practices do, or tend to, exclude,

disadvantage, restrict, or result in adverse impact or disparate

treatment of previously excluded or restricted groups or leave

uncorrected the effects of prior discrimination, and if so, to attempt

to determine why. There is no mandatory method of conducting a self

analysis. The employer may utilize techniques used in order to comply

with Executive Order 11246, as amended, and its implementing

regulations, including 41 CFR part 60-2 (known as Revised Order 4), or

related orders issued by the Office of Federal Contract Compliance

Programs or its authorized agencies, or may use an analysis similar to

that required under other Federal, State, or local laws or regulations

prohibiting employment discrimination. In conducting a self analysis,

the employer, labor organization, or other person subject to title VII

should be concerned with the effect on its employment practices of

circumstances which may be the result of discrimination by other persons

or institutions. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

\(b\) Reasonable basis. If the self analysis shows that one or more

employment practices:

\(1\) Have or tend to have an adverse effect on employment

opportunities of members of previously excluded groups, or groups whose

employment or promotional opportunities have been artificially limited,

\(2\) Leave uncorrected the effects of prior discrimination, or

\(3\) Result in disparate treatment, the person making the self

analysis has a reasonable basis for concluding that action is

appropriate.

It is not necessary that the self analysis establish a violation of

title VII. This reasonable basis exists without

\[\[Page 229\]\]

any admission or formal finding that the person has violated title VII,

and without regard to whether there exists arguable defenses to a title

VII action.

\(c\) Reasonable action. The action taken pursuant to an affirmative

action plan or program must be reasonable in relation to the problems

disclosed by the self analysis. Such reasonable action may include goals

and timetables or other appropriate employment tools which recognize the

race, sex, or national origin of applicants or employees. It may include

the adoption of practices which will eliminate the actual or potential

adverse impact, disparate treatment, or effect or past discrimination by

providing opportunities for members of groups which have been excluded,

regardless of whether the persons benefited were themselves the victims

of prior policies or procedures which produced the adverse impact or

disparate treatment or which perpetuated past discrimination.

\(1\) Illustrations of appropriate affirmative action. Affirmative

action plans or programs may include, but are not limited to, those

described in the Equal Employment Opportunity Coordinating Council

\`\`Policy Statement on Affirmative Action Programs for State and Local

Government Agencies,\'\' 41 FR 38814 (September 13, 1976), reaffirmed
and

extended to all persons subject to Federal equal employment opportunity

laws and orders, in the Uniform Guidelines on Employee Selection

Procedures (1978) 43 FR 38290; 38300 (Aug. 25, 1978). That statement

reads, in relevant part:

When an employer has reason to believe that its selection procedures

have \* \* \* exclusionary effect \* \* \*, it should initiate
affirmative

steps to remedy the situation. Such steps, which in design and execution

may be race, color, sex or ethnic \`conscious,\' include, but are not

limited to, the following:

The establishment of a long term goal and short range, interim goals

and timetables for the specific job classifications, all of which should

take into account the availability of basically qualified persons in the

relevant job market;

A recruitment program designed to attract qualified members of the

group in question;

A systematic effort to organize work and re-design jobs in ways that

provide opportunities for persons lacking \`journeyman\' level knowledge

or skills to enter and, with appropriate training, to progress in a

career field;

Revamping selection instruments or procedures which have not yet

been validated in order to reduce or eliminate exclusionary effects on

particular groups in particular job classifications;

The initiation of measures designed to assure that members of the

affected group who are qualified to perform the job are included within

the pool of persons from which the selecting official makes the

selection;

A systematic effort to provide career advancement training, both

classroom and on-the-job, to employees locked into dead end jobs; and

The establishment of a system for regularly monitoring the

effectiveness of the particular affirmative action program, and

procedures for making timely adjustments in this program where

effectiveness is not demonstrated.

\(2\) Standards of reasonable action. In considering the

reasonableness of a particular affirmative action plan or program, the

Commission will generally apply the following standards:

\(i\) The plan should be tailored to solve the problems which were

identified in the self analysis, see Sec. 1608.4(a), supra, and to

ensure that employment systems operate fairly in the future, while

avoiding unnecessary restrictions on opportunities for the workforce as

a whole. The race, sex, and national origin conscious provisions of the

plan or program should be maintained only so long as is necessary to

achieve these objectives.

\(ii\) Goals and timetables should be reasonably related to such

considerations as the effects of past discrimination, the need for

prompt elimination of adverse impact or disparate treatment, the

availability of basically qualified or qualifiable applicants, and the

number of employment opportunities expected to be available.

\(d\) Written or unwritten plans or programs\--(1) Written plans

required for 713(b)(1) protection. The protection of section 713(b) of

title VII will be accorded by the Commission to a person subject to

title VII only if the self analysis and the affirmative action plan are

dated and in writing, and the plan otherwise meets the requirements of

section 713(b)(1). The Commission will not require that there be any

written statement concluding that a title VII violation exists.

\(2\) Reasonable cause determinations. Where an affirmative action

plan or

\[\[Page 230\]\]

program is alleged to violate title VII, or is asserted as a defense to

a charge of discrimination, the Commission will investigate the charge

in accordance with its usual procedures and pursuant to the standards

set forth in these Guidelines, whether or not the analysis and plan are

in writing. However, the absence of a written self analysis and a

written affirmative action plan or program may make it more difficult to

provide credible evidence that the analysis was conducted, and that

action was taken pursuant to a plan or program based on the analysis.

Therefore, the Commission recommends that such analyses and plans be in

writing.

Sec. 1608.5 Affirmative action compliance programs under Executive

Order No. 11246, as amended.

Under title VII, affirmative action compliance programs adopted

pursuant to Executive Order 11246, as amended, and its implementing

regulations, including 41 CFR part 60-2 (Revised Order 4), will be

considered by the Commission in light of the similar purposes of title

VII and the Executive Order, and the Commission\'s responsibility under

Executive Order 12067 to avoid potential conflict among Federal equal

employment opportunity programs. Accordingly, the Commission will

process title VII complaints involving such affirmative action

compliance programs under this section.

\(a\) Procedures for review of Affirmative Action Compliance Programs.

If adherence to an affirmative action compliance program adopted

pursuant to Executive Order 11246, as amended, and its implementing

regulations, is the basis of a complaint filed under title VII, or is

alleged to be the justification for an action which is challenged under

title VII, the Commission will investigate to determine whether the

affirmative action compliance program was adopted by a person subject to

the Order and pursuant to the Order, and whether adherence to the

program was the basis of the complaint or the justification.

\(1\) Programs previously approved. If the Commission makes the

determination described in paragraph (a) of this section and also finds

that the affirmative action program has been approved by an appropriate

official of the Department of Labor or its authorized agencies, or is

part of a conciliation or settlement agreement or an order of an

administrative agency, whether entered by consent or after contested

proceedings brought to enforce Executive Order 11246, as amended, the

Commission will issue a determination of no reasonable cause.

\(2\) Program not previously approved. If the Commission makes the

determination described in paragraph (a), of this section but the

program has not been approved by an appropriate official of the

Department of Labor or its authorized agencies, the Commission will: (i)

Follow the procedure in Sec. 1608.10(a) and review the program, or (ii)

refer the plan to the Department of Labor for a determination of whether

it is to be approved under Executive Order 11246, as amended, and its

implementing regulations. If, the Commission finds that the program does

conform to these Guidelines, or the Department of Labor approves the

affirmative action compliance program, the Commission will issue a

determination of no reasonable cause under Sec. 1608.10(a).

\(b\) Reliance on these guidelines. In addition, if the affirmative

action compliance program has been adopted in good faith reliance on

these Guidelines, the provisions of section 713(b)(1) of title VII and

of Sec. 1608.10(b), of this part, may be asserted by the contractor.

Sec. 1608.6 Affirmative action plans which are part of Commission

conciliation or settlement agreements.

\(a\) Procedures for review of plans. If adherence to a conciliation

or settlement agreement executed under title VII and approved by a

responsible official of the EEOC is the basis of a complaint filed under

title VII, or is alleged to be the justification for an action

challenged under title VII, the Commission will investigate to

determine:

\(1\) Whether the conciliation agreement or settlement agreement was

approved by a responsible official of the EEOC, and

\(2\) Whether adherence to the agreement was the basis for the

complaint or justification.

\[\[Page 231\]\]

If the Commission so finds, it will make a determination of no

reasonable cause under Sec. 1608.10(a) and will advise the respondent of

its right under section 713(b)(1) of title VII to rely on the

conciliation agreement.

\(b\) Reliance on these guidelines. In addition, if the affirmative

action plan or program has been adopted in good faith reliance on these

Guidelines, the provisions of section 713(b)(1) of title VII and of

Sec. 1608.10(b), of this part, may be asserted by the respondent.

Sec. 1608.7 Affirmative action plans or programs under State or local

law.

Affirmative action plans or programs executed by agreement with

State or local government agencies, or by order of State or local

government agencies, whether entered by consent or after contested

proceedings, under statutes or ordinances described in title VII, will

be reviewed by the Commission in light of the similar purposes of title

VII and such statutes and ordinances. Accordingly, the Commission will

process title VII complaints involving such affirmative action plans or

programs under this section.

\(a\) Procedures for review of plans or programs. If adherence to an

affirmative action plan or program executed pursuant to a State statute

or local ordinance described in title VII is the basis of a complaint

filed under title VII or is alleged to be the justification for an

action which is challenged under Title VII, the Commission will

investigate to determine:

\(1\) Whether the affirmative action plan or program was executed by

an employer, labor organization, or person subject to the statute or

ordinance,

\(2\) Whether the agreement was approved by an appropriate official of

the State or local government, and

\(3\) Whether adherence to the plan or program was the basis of the

complaint or justification.

\(1\) Previously approved plans or programs. If the Commission finds

the facts described in paragraph (a) of this section, the Commission

will, in accordance with the \`\`substantial weight\'\' provisions of

section 706 of the Act, find no reasonable cause where appropriate.

\(2\) Plans or programs not previously approved. If the plan or

program has not been approved by an appropriate official of the State or

local government, the Commission will follow the procedure of

Sec. 1608.10 of these Guidelines. If the Commission finds that the plan

or program does conform to these Guidelines, the Commission will make a

determination of no reasonable cause as set forth in Sec. 1608.10(a).

\(b\) Reliance on these guidelines. In addition, if the affirmative

action plan or program has been adopted in good faith reliance on these

Guidelines, the provisions of section 713(b)(1) and Sec. 1608.10(b), of

this part, may be asserted by the respondent.

Sec. 1608.8 Adherence to court order.

Parties are entitled to rely on orders of courts of competent

jurisdiction. If adherence to an Order of a United States District Court

or other court of competent jurisdiction, whether entered by consent or

after contested litigation, in a case brought to enforce a Federal,

State, or local equal employment opportunity law or regulation, is the

basis of a complaint filed under title VII or is alleged to be the

justification for an action which is challenged under title VII, the

Commission will investigate to determine:

\(a\) Whether such an Order exists and

\(b\) Whether adherence to the affirmative action plan which is part

of the Order was the basis of the complaint or justification.

If the Commission so finds, it will issue a determination of no

reasonable cause. The Commission interprets title VII to mean that

actions taken pursuant to the direction of a Court Order cannot give

rise to liability under title VII.

Sec. 1608.9 Reliance on directions of other government agencies.

When a charge challenges an affirmative action plan or program, or

when such a plan or program is raised as justification for an employment

decision, and when the plan or program was developed pursuant to the

requirements of a Federal or State law or regulation which in part seeks

to ensure equal employment opportunity, the Commission will process the

charge in accordance

\[\[Page 232\]\]

with Sec. 1608.10(a). Other agencies with equal employment opportunity

responsibilities may apply the principles of these Guidelines in the

exercise of their authority.

Sec. 1608.10 Standard of review.

\(a\) Affirmative action plans or programs not specifically relying on

these guidelines. If, during the investigation of a charge of

discrimination filed with the Commission, a respondent asserts that the

action complained of was taken pursuant to an in accordance with a plan

or program of the type described in these Guidelines, the Commission

will determine whether the assertion is true, and if so, whether such a

plan or program conforms to the requirements of these guidelines. If the

Commission so finds, it will issue a determination of no reasonable

cause and, where appropriate, will state that the determination

constitutes a written interpretation or opinion of the Commission under

section 713(b)(1). This interpretation may be relied upon by the

respondent and asserted as a defense in the event that new charges

involving similar facts and circumstances are thereafter filed against

the respondent, which are based on actions taken pursuant to the

affirmative action plan or program. If the Commission does not so find,

it will proceed with the investigation in the usual manner.

\(b\) Reliance on these guidelines. If a respondent asserts that the

action taken was pursuant to and in accordance with a plan or program

which was adopted or implemented in good faith, in conformity with, and

in reliance upon these Guidelines, and the self analysis and plan are in

writing, the Commission will determine whether such assertion is true.

If the Commission so finds, it will so state in the determination of no

reasonable cause and will advise the respondent that:

\(1\) The Commission has found that the respondent is entitled to the

protection of section 713(b)(1) of title VII; and

\(2\) That the determination is itself an additional written

interpretation or opinion of the Commission pursuant to section

713(b)(1).

Sec. 1608.11 Limitations on the application of these guidelines.

\(a\) No determination of adequacy of plan or program. These

Guidelines are applicable only with respect to the circumstances

described in Sec. 1608.1(d), of this part. They do not apply to, and the

section 713(b)(1) defense is not available for the purpose of,

determining the adequacy of an affirmative action plan or program to

eliminate discrimination. Whether an employer who takes such affirmative

action has done enough to remedy such discrimination will remain a

question of fact in each case.

\(b\) Guidelines inapplicable in absence of affirmative action. Where

an affirmative action plan or program does not exist, or where the plan

or program is not the basis of the action complained of, these

Guidelines are inapplicable.

\(c\) Currency of plan or program. Under section 713(b)(1), persons

may rely on the plan or program only during the time when it is current.

Currency is related to such factors as progress in correcting the

conditions disclosed by the self analysis. The currency of the plan or

program is a question of fact to be determined on a case by case basis.

Programs developed under Executive Order 11246, as amended, will be

deemed current in accordance with Department of Labor regulations at 41

CFR chapter 60, or successor orders or regulations.

Sec. 1608.12 Equal employment opportunity plans adopted pursuant to

section 717 of title VII.

If adherence to an Equal Employment Opportunity Plan, adopted

pursuant to section 717 of title VII, and approved by an appropriate

official of the U.S. Civil Service Commission, is the basis of a

complaint filed under title VII, or is alleged to be the justification

for an action under title VII, these Guidelines will apply in a manner

similar to that set forth in Sec. 1608.5. The Commission will issue

regulations setting forth the procedure for processing such complaints.

\[\[Page 233\]\]