Memorandum
Subject: INFORMATION: Recall Policy and
Contractors' EEO Policy Obligations |
Date: November 21, 2006 |
From: Frederick D. Isler
Associate Administrator for Civil Rights |
In Reply Refer to: HCR-1 |
To: Division Administrators Directors of Field Services |
While the Federal Highway Administration does not require that contractors
have a "separate" recall policy with respect to their EEO policy
obligations, State Transportation Agencies may require that contractors include
recalls in their employment practices policy. The relevant citations to support
this position include the following:
In a May 17, 2004, Memorandum from HCR, "Clarification of Contract
Compliance Responsibilities under Title 23 U.S.C. 140: Under B.4: Contractor's
Employment Practices," it is stated that, "Information on new hires,
rehires, name requests, and recalls for the entire review period should also
be obtained....While it is the contractor's prerogative to select who will
be hired, recalled, rehired, or name requested, it is also the contractor's
responsibility to ensure equal employment opportunity for minorities and
women."
In addition, the following relevant text is from a June 2, 1983, document, "Contract
Compliance—Equal Employment Opportunity in Construction After Seasonal
Shutdown in Union Areas" from the former FHWA Chief Counsel, Donald Ivers: "Allowing
contractors to exhaust an informally maintained recall list where there is
no obligation to do so would perpetuate patterns of discrimination and offer
no relief to minorities and women held at bay by continual reliance on a facially
neutral but discriminatory tool, especially where contractors cannot demonstrate
that reasonable available avenues of recruitment have been exhausted."
The relevant section in document FHWA-1273 that addresses the contractor's
requirements with respect to an EEO policy, and that indicate that the nondiscrimination
provisions extend to the contractor's employment practices, solicitations for
employment, selection of subcontractors and suppliers, and procurement of materials
is the following:
Section II.1.b.: "The contractor is required to have an EEO policy
that prohibits discrimination and provides for affirmative action in employment
practices. The contractor shall adopt the following statement as his hiring
policy:
'It is the policy of this company to assure that applicants are employed,
and that employees are treated during employment, without regard to their
race, religion, sex, color, national origin, age, or disability. Such action
shall include: employment, upgrading, demotion, or transfer; recruitment
or recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship,
pre-apprenticeship, and/or on-the-job training.'"
Further, if the State's procurement procedures include such a recall policy
for State funded contracts, then the State would need to require that Federally
funded contracts also include a recall policy.
FHWA acknowledges that circumstances related to recall differ from State to
State with respect to actual equal employment opportunities for minorities
and women. Therefore, while FHWA does not require that contractors have a "separate" recall
policy statement or assurance, a State Transportation Agency may require that
contractors include recalls in their employment practices policy.
If you need additional information, please do not hesitate to call Martha Kenley at 202-366-8110.