September 30, 1992, Transmittal 5

NS 23 CFR 230C



  1. BACKGROUND (No CFR paragraph reference)

    1. Pursuant to the provisions of Section 22(a) of the Federal-Aid Highway Act of 1968, as amended (23 U.S.C. 140(a)), each State signed construction assurances. Guidelines for monitoring the State highway agencies compliance with the equal employment opportunity requirements of construction assurances were first published as an FHWA Notice dated July 18, 1969, entitled "State Highway Department Programs to Meet EEO Requirements of Construction Assurances Under the Federal-Aid Highway Act of 1968." (The guidelines included the contractor compliance and State highway department employment programs.)

    2. Also, pursuant to the construction assurances required by the Federal-Aid Highway Act of 1968, the FHWA regions were requested to collect and review statistical data on each State highway agency's total internal employment, including minorities and females. This request was made by FHWA memorandum dated July 19, 1973, entitled "State Highway Department Employment Practices."

    3. While both of the above issuances were adequate when issued in 1969 and 1973, respectively, it was recognized at that time that changes and modifications would be necessary as the programs evolved. The growth in program coverage and emphasis areas has necessitated new program direction and modifications.

    4. Moreover, with the passage of the Equal Employment Opportunity Act of 1972, State and local governments became subject to the jurisdiction of the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964. This provides another compelling reason for State and local jurisdictions to do everything they can to ensure true equality of employment opportunity for all.

    5. An Interagency Agreement was promulgated on March 23, 1973, clarifying national policy relating to equality of employment opportunity with regard to race, color, religion, sex or national origin in State and localgovernments. The Interagency Agreement was developed jointly by the EEOC, the Department of Justice, the U.S. Civil Service Commission and the Department of Labor's Office of Federal Contract Compliance Programs. The Federal EEO Coordinating Council, established by the Equal Employment Act of 1972, reviewed and approved the Agreement, thereby adopting it as uniform policy to be followed by all Federal agencies. (See Bureau of National Affairs (BNA) Labor Relations Reporter, Fair Employment Practice Manual and Commerce Clearing House (CCH), Employment Practices Guide.)

    6. Many State and local governments have laws prohibiting employment discrimination and have established State and local agencies to enforce such laws. Many of these agencies have been designated as "deferral" or "706 agencies" by the EEOC. When EEOC receives employment discrimination charges, it defers them for action, for a limited time period, by certain of these State and local agencies with comparable jurisdiction and enforcement sanctions. Determination of which agencies meet this "deferral" standard is a continuing process. Procedures of these agencies and their requirements for affirmative action vary, but if satisfactory remedies are not achieved, charges revert to EEOC for resolution. In any case, State highway agency officials should be familiar with requirements of their local laws.

  2. AUTHORITIES (No CFR Paragraph reference)

    1. Federal-Aid Highway Act of 1968 (23 U.S.C. 140(a)).

    2. Executive Order 11246, as amended.

  3. FHWA RESPONSIBILITIES (No CFR Paragraph reference)

    1. Division Office Responsibilities

        (1) The FHWA division will provide technical assistance and guidance to the State highway agencies in the preparation of their EEO Programs, if requested.

        (2) Upon receipt of State highway agencies' EEO programs, the division will review them for completeness and compliance with FHWA program requirements.

        (3) If FHWA requirements are met, the division will submit the programs to the regional office with recommendations for approval. However, where deficiencies are evident, the division will meetwith State highway agency officials to reconcile deficiencies before submitting programs to the regional office. In the latter instance, the FHWA division will advise the regional office of any difficulties which may delay submittal of the program.

    2. Regional Office Responsibilities

        (1) The regional office civil rights staff, in collaboration with the division office, should monitor the progress of State highway agencies equal employment opportunity programs periodically, including employment statistical data, but will conduct a review of these programs prior to their submission dates. A summary of the review will be sent to the Washington Headquarters Office of Civil Rights.

        (2) The regional office civil rights staff will analyze the State highway agencies equal employment opportunity programs, including employment statistical data, prepare a written summary analysis and make recommendation for approval to the Washington Headquarters Office.

  4. STATE HIGHWAY AGENCY (SHA) EEO PROGRAMS (23 CFR 230.311). This supplemental information provides an interpretation of the intent of 23 CFR 230, subpart C; further guidance on the implementation of the directive; and instructions on the submission of State program updates, where appropriate.

    1. As stated in section 230.311 of 23 CFR 230, subpart C, each State is required to submit an updated EEO program annually. Once the basic SHA EEO program document is approved under this requirement, only annual updates are required. The update is to reflect major changes in programs (i.e., substantial changes in SHA organizational staffing, procedures, or correction of reviews) and is to include responses to the following provisions of 23 CFR 230, subpart C. Acceptable completion and submission of this data will meet the intent of the requirements of 23 CFR 230, subpart C, Appendix A:

        (1) Part I, Contractor Compliance: paragraph III, Accomplishments, paragraph V.C., Contract Sanctions, paragraph VI.C., Complaints, paragraph VII.C. and D., External Training including Supportive Services, and paragraph VIII, Minority Business Enterprise.

        (2) Part II, State Highway Agency Employment: Assessment and Accomplishment Reports includinggoals and timetables.

        (3) Part III, Employment Statistical Data.

    2. State programs with conditional approvals or limitations (i.e., approval for 6 months) must comply with the terms of such approvals before field offices may accept new submissions under this process. Field offices' staffs are required to complete annual onsite reviews prior to State submissions. These reviews, along with appropriate SHA responses (conforming substantially to the update provisions specified in paragraphs 4a(1), (2), and (3) of this supplement) and written commitments to correct deficiencies, may be used as the basis for recommending continued State program approvals.


    1. On March 30 1983, the departmental Office of Civil Rights issued the following statement concerning goals and timetables for minorities and females in the SHA's work:

      "The requirement, that the States furnish employment goals and timetables when underutilization of minorities and females is found in SHA employment programs as required by FHWA regulations (23 CFR 230C), is and remains in full force and effect."

    2. The FHWA is expected to enforce the cited regulation.

  6. SUBMISSIONS OF EEO-4 REPORTS (23 CFR 230.311). Pursuant to 23 CFR 230, subpart C, the FHWA accepts data on Form SF-164 (commonly known as the EEO-4) as part of the EEO Plans/Updates. Because the various States have different anniversary dates for submission of the EEO Plans/Updates and relying solely on data contained in those submissions would not be a sufficiently sound basis for program monitoring, FHWA field offices' assistance is requested in obtaining from each State a copy of the SF-164 (EEO-4) which is submitted to the Equal Employment Opportunity Commission (EEOC) in June of each year. This request is consistent with commitments made by the States in the EEO Assurances and each project agreement.


    1. In reviews of State contract compliance programs pursuant to 23 CFR 230, subpart C, as part of thefactgathering phase, information should be obtained to determine whether or not:

        (1) there is adequate staff;

        (2) there is adequate funding;

        (3) frequent reviews are made (considering active contractors and subcontractors);

        (4) reviews are sufficient to determine compliance; and

        (5) the State's compliance procedure is sufficiently strict to ensure immediate correction of deficiencies.

    2. Advice and technical assistance should be provided to ensure that effective, preventive programs are in place and responsibly managed.

    3. Where substantial deficiencies are found, State personnel should be informed of them and provided guidance on requirements, recommendations regarding options, and specific target dates for correction.

  8. EEOC POLICY GUIDANCE ON TITLE VII AND AGE DISCRIMINATION EMPLOYMENT (ADEA) APPLICATION TO PART-TIME EMPLOYEES (23 CFR 230.309). The guidance in Policy Notice N-915-052, dated April 20, 1990, issued by the Equal Employment Opportunity Commission, states that for jurisdictional purposes all part-time employees, whether they work part of a day or part of each week, should be counted as employees to satisfy the requirement under Title VII, 701(b) and ADEA 11(b). States should find this guidance useful in determining the coverage of part-time workers under the referenced laws. (See Volume II of the EEOC Compliance Manual for a complete copy of Policy Notice N-915-052.)

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