Executive Order 11246

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University of Cincinnati, Main Campus *

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Law

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Feb 20, 2024

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docx

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Executive Order 11246 Coverage and Prohibition/Requirement: Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965, was one of the first federal regulations establishing affirmative action. Executive Order 11246 created regulations for Federal Government contractors prohibiting discrimination. The order prohibits employers from discriminating against employees and potential employees based on race, color, religion, gender, sexual orientation, etc. It was an expansion of Executive Order 8802 which was signed by President Franklin D. Roosevelt, which only applied to defense contractors. Executive Order 11246 also aimed to correct underrepresentation of women and minorities in the workforce. All employers contracting with the Federal Government where required to take steps to hire more women and minorities. Employers that have contractors with a $10,000 valuation or higher have additional requirements such as posting notice about nondiscrimination rights in the workplace and on hiring materials. Enforcement/Remedies: Executive Order 11246 is enforced by a division in the Department of Labor known of the Office of Federal Contract Compliance Programs. This Office has enacted expansion regulations enforcing the order. Employers refusing to fix employment disparities are subject to penalties from the OFCCP and could lose their current contracts and barred from any future contracts. One short fall of the Executive Order is remedies for employees. The OFCCP only addresses employer’s compliance with the order and does not handle legal action or recourse for impacted employees. While the OFCCP investigates complaints made by employees, employees subjected to infringements on this order must go through their state laws, and other legislation like title VII.

Case Law: Two cases centered around Executive Order 11246 are Chrysler Corp. V. Brown , 441 U.S. 281 and Traylor Safeway Stores , Inc., 402 F. Supp. 871. In Chrysler Corp. V. Brown, the Supreme Court ruled that Order 11246 claims are superseded by national security, protecting trade and business secrets. In Traylor Safeway Stores individuals alleged that Safeway was a government contractor under Order 11246 and was therefore prohibited from discriminating against classes. Impact: Executive Order 11246 has many implications for businesses and especially human resources. HR managers are tasked with maintaining compliance with regulations surrounding employment and employee grievances. It is their responsibility to ensure proper signage is posted incompliance with Order 11246. Additionally, the Order impacted potential employees as it expanded opportunities for women and minorities in the labor force. Affirmative action has been a major topic in the Courts and several regulations have been struck down recently. As the establishing doctrine for affirmative action, Order 11246 is at risk of being struck down by the courts. Reflection: Executive Order 11246 is an important federal doctrine for employment law. As a woman, I support historical actions granting women greater equality. My biggest concern about the Order is its sustainability. Executive Orders are not legislation, they are documents written and signed by Presidents. They can be unsigned or changed at any moment by future Presidents. Given the importance of this Order, I believe that Congress should take action to codify the Order into law to guarantee its protections.

Immigration Reform and Control Act Coverage and Prohibition/Requirements: Passed by Congress in 1986 and signed by President Reagan, the Immigration Reform and Control Act implemented new regulations for employers in the hiring process. IRAC Prohibits employers from discriminating against employees based on citizenship in most circumstances. However, it is illegal to knowingly hire persons unauthorized to work in the U.S. Those unauthorized persons include illegal immigrants and those with non- work visas among authors. The order does permit employers to favor hiring U.S. applicants if all applicants are equally qualified for employment. Employers with 4 to 15 employers are prohibited from discriminations on national origin and employers with 4 or more employees cannot discriminate based on citizenship either. There are certain circumstances where discrimination is acceptable though. In jobs where English skills are a part of the requirements, employers can discriminate against qualified applications that do not possess sufficient linguistic skills. Apon its signage, IRAC also allowed for illegal immigrants to apply for permanent resident status is they entered the United States prior to its enactment. Employers must verify an applicant’s status using I-9 forms and valid documents. Enforcement/Remedies: IRCA is enforced by the General Administrative Plan department of the immigration and Naturalization Services agency. To bring a case of IRAC violation it must be proved that employers knowingly hired unauthorized workers or intentionally discriminated against applicants. Employers can claim negligent discrimination as a complete defense. There are both civil and criminal penalties employers could face. Employers are not liable if an applicant submits false documents so long as the employer checked the validity. Employers can face monetary penalties from $250 to $10,0000 per unauthorized persons. There are also

penalties for repeated violations. In the past only illegal workers were penalized for working but IRAC established employer liability as well. Case Law: Two cases that centered around the Immigration Reform and Control act are C hamber of Commerce v. Whiting , 563 U.S. 582 (2011) and Kansas v. Garcia , 589 U.S. (2020). In Chamber of Commerce v. Whiting, The Supreme Court ruled Arizona law requiring employers use E-Verify system does not violate the Immigration Reform and Control Act and ruled this case was within the scope of congressional authority. In Kansas v. Garcia, the Supreme Court upheld Kansas right to implement a system to find and prosecute illegal immigrants using stolen social security cards and other forms of identification. Impact: IRAC had significant impacts on both employers and employees. By giving certain illegal immigrants the opportunity to apply for citizenship IRAC has expanded the number of eligible applicants. Employers are impacted because they now are liable for employing unauthorized persons. The hiring process itself was also impacted, as it was likely lengthened due to required I-9 verification documents. Employers often hire undocumented workers because they can pay them less and this likely impacted capital as well. Today, employers utilize subcontractors as a loophole for hiring workers because they are not liable for subcontractor’s hiring practices. Reflection: Overall, I believe that IRAC was a beneficial order because it prevents employers from discriminating against eligible workers based on national origin or citizenship. Though it did likely cost employment opportunities for illegal immigrants, IRAC did give them a pathway to residency in certain situations. These persons would not have been eligible without it being nearly impossible to gain status after being in the country illegally. That aside, I do sympathize with illegal immigrants, the immigration process is extremely lengthy and often too expensive.

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