§ 60-3.7 Use of other validity studies.

In cases where the validity of a test cannot be determined pursuant to §§ 60-3.4 and 60-3.5 (e.g., the number of subjects is less than that required for a technically adequate validation study, or an appropriate criterion measure cannot be developed), evidence from validity studies conducted in other organizations, such as that reported in test manuals and professional literature, may be considered acceptable when: (a) The studies pertain to jobs which are comparable (i.e., have basically the same task elements), and (b) there are no major differences in contextual variables or sample composition which are likely to affect significantly validity. Any contractor citing evidence from other validity studies as evidence of test validity for his own jobs must demonstrate that he meets requirements in paragraphs (a) and (b) of this section.

§ 60-3.8 Assumption of validity.

(a) Under no circumstances will the general reputation of a test, its author or its publisher, or casual reports of test utility be accepted in lieu of evidence of validity. Specifically ruled out are: Assumptions of validity based on test names or descriptive labels; all forms of promotional literature; data bearing on the frequency of a test's usage; testimonial statements of sellers, users, or consultants; and other nonempirical or anecdotal accounts of testing practices or testing outcomes.

(b) Although professional supervision of testing activities may help greatly to insure technically sound and nondiscriminatory test usage, such involvement alone shall not be regarded as constituting satisfactory evidence of test validity. § 60-3.9 Continued use of tests.

Under certain conditions where validation is required by this order, a contractor may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, evidence of criterion-related validity in a specific setting is technically feasible and required but not yet obtained, the use of the test may continue: Provided: (a) The contractor can cite substantial evidence of validity as described in § 603.7 (a) and (b); and (b) he has in progress validation procedures which are

designed to produce, within a reasonable time, the additional data required. It is expected also that the contractor may have to alter or suspend test cutoff scores so that score ranges broad enough to permit the identification of criterion-related validity will be obtained.

§ 60-3.10 Employment agencies and state employment services.

A contractor utilizing the services of any private employment agency, state employment agency or any other person, agency or organization engaged in the selection or evaluation of personnel which makes its selections or evaluations of personnel wholly or partially on the basis of the results of any test shall have available evidence that any test used by such person, agency or organization is in conformance with the requirements of this order.

§ 60-3.11 Disparate treatment.

The principle of disparate or unequal treatment must be distinguished from the concept of test validation. Disparate treatment, for example, occurs where members of a group protected by Executive Order 11246, as amended, have been denied the same opportunities for hire, transfer or promotion as have been made available to other employees or applicants. Those employees or applicants who can be shown to have been denied equal treatment because of prior discriminatory practices or policies must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon an individual or class of individuals protected by Executive Order 11246, as amended, who, but for this prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.

§ 60-3.13

Other selection techniques.

Selection techniques other than tests, as defined in § 60-3.2, may be improperly used so as to have the effect of discriminating against minority groups or women. Such techniques include, but are not restricted to, unscored or casual interviews, unscored application forms and unscored personal history and background requirements not used uniformly as a basis for qualifying or disqualifying applicants. Where there are data suggesting employment discrimination, the contractor may be called upon to present evidence concerning the validity of his unscored procedures regardless of whether tests are also used, the evidence of validity being of the same types referred to in §§ 60-3.4 and 60-3.5. Data suggesting the possibility of discrimination exists, for example, when there are higher rates of rejection of minority candidates than of nonminority candidates for the same job or group of Jobs or when there is an underutilization of minority group personnel among present employees in certain types of jobs. If the contractor is unable or unwilling to perform such validation studies, he has the option of adjusting employment procedures so as to eliminate the conditions suggestive of employment discrimination. § 60-3.14 Affirmative action.

Nothing in this order shall be interpreted as diminishing a contractor's obligation under both title VII of the Civil Rights Act of 1964 and Executive Order 11246, as amended, to take affirmative action to ensure that applicants or employees are treated without regard to race, color, religion, sex, or national origin. Specifically, where substantially equally valid tests can be used for a given purpose, the contractor will be expected to use the test or battery of tests which will have the least adverse effect on the employment opportunities of minorities or women. Further, the use of tests which have been validated pursuant to this order does not relieve contractors of their obligation to take affirmative action to afford employment and training opportunities to members of classes protected by Executive Order 11246, as amended. § 60-3.15 Recordkeeping.

Each contractor shall maintain, and submit upon request, such records and documents relating to the nature and use of tests, the validation of tests, and

(a) Requests for exemptions from this order or any part thereof must be made in writing to the Director, Office of Federal Contract Compliance, Washington, D.C., and must contain a statement of reasons supporting the request. Such request shall be forwarded through and shall contain the endorsement of the head of the contracting agency. Exemption may be granted for good cause.

(b) The requirements of this part shall not apply to any contract when the head of the contracting agency determines that such contract is essential to the national security and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the agency head will notify the Director, in writing, within 30 days.

§ 60-3.18 Effect of this part on other rules and regulations.

(a) All orders, instructions, regulations, and memoranda of the Secretary of Labor, other officials of the Department of Labor and contracting agencies are hereby superseded to the extent that they are inconsistent herewith.

(b) Nothing in this part shall be interpreted to diminish the present contract compliance review and complaint investigation programs.

PART 60-5-WASHINGTON PLAN

NOTE: The expiration date of the Washington Plan has been extended several times. The last extension was noted at 40 FR 4308, Jan. 29, 1975.

The purpose of this order is to implement the provisions of Executive Order 11246, and the rules and regulations issued pursuant thereto, requiring a program of equal employment opportunity by Federal contractors and subcontractors and federally assisted construction contractors and subcontractors in the Washington Standard Metropolitan Statistical Area (SMSA), the area in which the most significant construction is being and will be performed. The SMSA includes the District of Columbia, the Virginia cities of Alexandria, Fairfax, and Falls Church, the Virginia counties of Arlington, Fairfax, Loudoun, and Prince William and the Maryland counties of Montgomery and Prince Georges.

While a contractor or subcontractor is performing in the Washington SMSA on Federal or federally involved construction contracts for projects, the estimated total cost of which exceeds $500,000, all construction activities (including all activities on nonfederally involved work) within the Washington SMSA of such contractor or subcontractor shall be subject to the requirements of this order: Provided, however, That if an areawide agreement is developed for any trade covered by this order or any such trade is covered by a multitrade agreement and such an agreement is among contractors, unions, and the minority community, then the Office of Federal Contract Compliance (OFCC) may, in its complete discretion, accept such program in lieu of any or all of the requirements of this order, subject to such terms and conditions as OFCC may specify. § 60-5.3

Background.

(a) Pursuant to public hearings conducted by representatives of the Department of Labor in Washington, D.C., on April 13, 14, and 15, 1970, to determine what action should be taken to insure equal employment opportunity in the construction industry in the Washington, D.C., area.

(b) Testimony was heard and data received on the following:

(1) The current extent of minority group participation in the construction trades as journeymen, apprentices, trainees, and helpers;

(2) The effectiveness of present employee recruitment methods;

(3) The availability of qualified and qualifiable minority group persons for employment in each construction trade, including where they are now working, how they may be brought into the trades;

(4) The effectiveness of existing training programs in the area, including the number of minorities and others recruited into the programs, the number who complete training, the length and extent of training, employer experience with trainees, the need for additional or expanded training programs;

(5) The number of additional workers that could be absorbed into each trade without displacing present employees, including consideration of present employee shortages, projected growth of the trade, projected employee turnover;

(6) The availability and utilization of minority contractors on federally involved contracts;

(7) The desirability and extent, including the geographical scope, of possible Federal action to ensure equal employment opportunity in the construction trades;

of govern

(8) Recommendations mental compliance agencies active in the Washington SMSA.

Subpart B-General Findings; Minority Participation in Specific Trades; Availability; Need for Training; Impact Upon Existing Labor Force

§ 60-5.10 General findings.

As a result of the material presented at the public hearing and as a result of other investigations, it is apparent that minority workers (Negroes, Spanish surname Americans, Orientals, and American Indians) have been prevented from fully participating in certain construction trades. This exclusion is due in great measure to the special nature of employment practices in the construction industry where contractors and subcontractors rely on construction craft unions as their prime or sole labor source. Collective bargaining agreements and/or established custom between construction contractors and subcontractors and unions frequently provide for, or result in, exclusive hiring halls; even where the collective bargaining agreement contains no such hiring hall provisions or the custom is not rigid, as a practical matter most people working in these classifications are referred to the jobs by the unions. As a result of these hiring arrangements, referral by the union is a virtual necessity for obtaining employment in union construction projects. Minorities often have not gained admittance into membership of certain unions and into certain apprenticeship programs, and, thus, have not been referred for employment.

representation averages 3.3 percent among the iron workers, sheet-metal workers, electricians, plumbers and pipefitters.

(b) Statistical data. The most reliable data developed at the recent hearings reveals the following as the current minority representation in unions in selected trades for the Washington SMSA.

Asbestos Workers:

1.4%

Boiler Makers: 0% Bricklayers: 56.9% Carpenters: 16.2%

Cement Masons: 71.1% Electricians:

4.8%

Elevator Constructors: 10.6% Glaziers:

3.3%

Iron Workers:

3.2%

Laborers:

90.6% Lathers:

10%

Operating Engineers: 24.4%

Pipefitters-Plumber-Steamfitter:

4.1% Plasterers:

25.4%

Reinforce Rodmen:

32.4%

Roofers:

85.3%

Sheet-Metal Workers:
1.1%
Teamsters:
87%

Tile and Terrazzo Workers:
3.6%

Painters and Paperhangers: 6.6%

The above listing shows that at present certain of the trades are composed predominantly of minorities. Clearly such trades as the Laborers, Teamsters, Roofers, Cement Masons, and Bricklayers are not engaged in underutilization of minorities and, accordingly, will not be included under the requirements of the rules.

(c) Excluded trades. At this time inclusion of the Carpenters, Rodmen, Plasterers, and Operating Engineers under this order is not required. These trades contain a significant proportion of minority workers. It is expected they

shall continue an even greater utilization of minority workers without regard to this order. However, within the remainder of the trades listed, minority representation is well below even that of the work force as a whole, and even more significantly below the minority representation in the construction industry. It is determined that their inclusion under this order is necessary in order to insure the full participation of minority workers in these trades.

§ 60-5.12 Availability of minority group persons for employment.

(a) Population. No specific data was presented at the hearings as to the minority percentage of the SMSA population. However, 71 percent of the population of the District of Columbia is nonwhite. Testimony presented at the hearing indicates that in 1969, the unemployment rate for minorities in the Washington, D.C., SMSA was twice that of whites and that there were 8,000 unemployed and nearly 73,000 underemployed minority persons in the SMSA. Also information presented at the hearing indicates that there are approximately 15,000 minority laborers in the SMSA. These persons have been working with journeymen in the various crafts and should be considered available for training that would upgrade their skills.

(b) Vocational training. There are approximately 1,700 minority males enrolled in vocational education programs in the District of Columbia Public School system and nearly 1,000 minority persons are involved in training through such programs as MDTA, OIC, and AIC. The Concentrated Employment Program had over 3,500 minority enrollees in 1969, and the local employment services offices record over 2,500 potentially available minority workers.

(c) Project Build. Project Build, a union sponsored training program, projects that it will train 630 enrollees through its program this year. During the past 2 years, 1,300 minority workers have completed training conducted by Northern Systems Inc. There are also several places in the District where "day" or "project" minority labor is available.

(d) Community involvement. Testimony presented at the hearings revealed, and it has consistently been this Department's experience, that the effectiveness of recruitment of minority trainees and workers depends in large measure upon the active involvement of minority

organizations in the community. Various representatives of minority organizations indicated that they would have little, if any, difficulty in recruiting minority workers for training and jobs in sufficient numbers to meet the manpower needs of the Washington area construction industry.

(e) Unemployed minorities. It is estimated that at least one-half of an estimated 80,000 unemployed and underemployed minority population and 10,000 trained and/or available minority workers, are currently available for recruitment as construction workers. In addition, approximately 15,000 minority construction laborers may be available for upgrading of skills. Therefore, there are an estimated 45,000 to 60,000 minority workers presently available for construction employment and/or training, and recruitable through concerted efforts by contractors, unions, and particularly, minority community groups.

(f) Minority subcontractors. Information adduced at the hearing indicated, and it is found, that a number of minority subcontractors are operating effectively within the Washington area. Utilization of these subcontractors by contractors could significantly expand the participation of minority craftsmen on projects of Federal construction contractors.

§ 60-5.13 Need for training.

(a) Existing programs. Testimony at the hearing revealed that training programs are in existence but that there is further need for training at all levels from preapprenticeship through skills refinement training for those about to become journeymen, with a particular need for the training of craftsinen who could become fully qualified journeymen with a limited amount of training.

(1) The Department of Labor through the Manpower Administration has committed substantial funds to further the training effort. A primary vehicle to achieve additional training has been "Project Build", which is sponsored by the Greater Washington Central Labor Council in conjunction with the Building and Construction Trades Council. Through this organization it is anticipated that 630 enrollees will be trained during this year. Another has been a preapprenticeship program conducted by Northern Systems Co. which has trained 1,300 minorities in the past 2 years.