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Authorities

 

23 U.S.C. - Highways
http://www.fhwa.dot.gov/legsregs/title23.pdf

 

Civil Rights Act of 1964, as amended

Prohibiting discrimination based on race, religion, sex, color, national origin, age or disability.
Also see: Impacts of the Civil Rights Restoration Act of 1987 on FHWA Programs, FHWA
Notice N4720.6.
 
23 U.S.C. §§ 140, 324 – Federal-Aid Highway Act of 1968
Implementing the 1964 Civil Rights act and including State EEO Assurances.
http://www.fhwa.dot.gov/environment/environmental_justice/facts/140.cfm
http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title23-section324&num=0&edition=prelim
 
23 U.S.C. § 113, as amended
Making Davis-Bacon wage rates and Copeland Act requirements applicable to "work performed
on highway projects on the Federal-aid highways."
http://us-code.vlex.com/vid/sec-prevailing-rate-wage-19205135
 
Executive Order 11246, as amended
Executive Order prohibiting employment discrimination by the Federal Government and Federal
contractors and subcontractors based on race, color, religion, national origin, or sex in hiring,
discharge, promotion, wages, benefits, training and all other conditions of employment.
http://www.dol.gov/ofccp/regs/statutes/eo11246.htm
 
23 CFR § 200
Title VI Program and Related Statutes – Implementation and Review Procedures.
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=23%3A1.0.1.3.7
 
23 CFR § 230
Highways – External Programs
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=23:1.0.1.3.8
 
23 CFR § 230, Subpart A, Appendix A
EEO and Affirmative Action Special Provisions for Federal aid highway construction projects.
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=23:1.0.1.3.8#ap23.1.230_1121.a
 
23 CFR § 230, Subpart A, Appendix B
EEO On the Job Training Special Provisions.
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=23:1.0.1.3.8#ap23.1.230_1121.b
 
23 CFR § 230, Subpart B
Implementing State Supportive Services for Disadvantaged Business Enterprises.
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=23:1.0.1.3.8#sp23.1.230.b

23 CFR § 230, Subpart C
State EEO Program format and internal responsibilities.
http://www.fhwa.dot.gov/legsregs/directives/fapg/cfr0230c.htm
 
23 CFR § 230, Subpart D
Construction Contract Equal Opportunity Compliance Procedures.
http://www.fhwa.dot.gov/legsregs/directives/fapg/cfr0230d.htm
 
41 CFR § 60-1
DOL Obligations of Contractors and Subcontractors.
http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title41/41cfr60-1_main_02.tpl
 
41 CFR § 60-4
DOL Affirmative Action in Construction Goals and Standards.
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=41:1.2.3.1.4
 
49 CFR § 21
Title VI of the Civil Rights Act of 1964 procedures for Federally-funded contracts and projects.
http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr21_main_02.tpl
 
49 CFR § 26
DBE Program Requirements, policies, and procedures.
http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr26_main_02.tpl
 
FHWA Order 4710.8
DOL/FHWA authorities and responsibilities under Exec. Order No. 11246.
http://www.fhwa.dot.gov/legsregs/directives/orders/47108.cfm
 
Form FHWA-1273
Required Contract Provisions for Federal-Aid construction contracts; Also found in 23 CFR §
230, Appendix A to Subpart A.
http://www.fhwa.dot.gov/programadmin/contracts/1273/1273.pdf
 
Form FHWA-1391
Federal-Aid Highway Construction Contractors Annual EEO Report; Also found in 23 CFR §
230, Appendix C to Subpart A.
http://www.fhwa.dot.gov/eforms/fhwa1391.pdf
ftp://ftp.dot.state.pa.us/public/PubsForms/Forms/FHWA-1391.xls
 
 
 

Definitions

 
23 CFR §§ 230.407, 230.409
 
Affirmative Action Plan
A written positive management tool of a total equal opportunity program indicating the action steps for all organizational levels of a contractor to initiate and measure equal opportunity program progress and effectiveness. (The Special Provisions [23 CFR part 230 A, appendix A] and areawide plans are Affirmative Action Plans.)
 
Affirmative Action(s)
The efforts exerted towards achieving equal opportunity through positive, aggressive, and continuous result-oriented measures to correct past and present discriminatory practices and their effects on the conditions and privileges of employment. These measures include, but are not limited to: recruitment, hiring, promotion, upgrading, demotion, transfer, termination, compensation, and training.
 
Civilian Labor Force (CLF)
Data consulted by PennDOT to determine the relevant labor demographics for a particular geographic area, which is then compared to a contractor’s work force. Typically, data is culled from the U.S. Census, the Department of Labor, and State Employment Agencies.
 
Commercially Useful Function (CUF)
Relating to the requirement that a Disadvantaged Business Enterprise (DBE) can be counted toward the contract DBE goals only when it is meaningfully responsible for the execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. A DBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. A DBE firm’s failure to perform a CUF raises questions regarding the firm’s independence, ownership and control which factors may eventually lead to its decertification. 
 
Compliance
A determination made by, or in conjunction with, a Federal authority, that a contractor has fulfilled its EEO and other contractual obligations. For EEO matters, compliance is when the EEO requirements have been effectively implemented and are emphasized as any other vital management function, or there is evidence that every Good Faith Effort has been made toward achieving this end. A contractor is found “in compliance” when there is sufficient information, data and evidence obtained during the compliance review to determine that the EEO/AA requirements have been effectively implemented with respect to all terms and conditions of employment, in the provisions of subcontracting opportunities in a non-discriminatory manner on the contractor’s projects, and meeting DBE, OJT, Indian Preference, or Appalachian preference goals, where appropriate.
 
Compliance Specialist
A Federal or State employee regularly employed and experienced in civil rights policies, practices, procedures, and equal opportunity compliance review and evaluation functions.
 
Consolidated Compliance Review
A review and evaluation of all significant construction employment in a specific geographical (target) area.
 
Construction
Shall have the meanings set forth in 41 CFR 60–1.3(e) and 23 U.S.C. 101(a). References in both definitions to expenses or functions incidental to construction shall include preliminary engineering work in project development or engineering services performed by or for a State Highway Authority (SHA).
 
Contract
Means a legally binding relationship obligating a seller to furnish supplies or services (including, but not limited to, construction and professional services) and the buyer to pay for them. For purposes of this part, a lease is considered to be a contract.
 
Contractor
Any person, corporation, partnership, or unincorporated association that holds a FHWA direct or federally assisted construction contract or subcontract regardless of tier.
 
Corrective Action Plan (CAP)
A contractor's unequivocal written and signed commitment outlining actions taken or proposed, with time limits and goals, where appropriate to correct, compensate for, and remedy each violation of the equal opportunity requirements as specified in a list of deficiencies (also called a conciliation agreement or a letter of commitment). When a contractor receives a Show Cause Notice and the deficiencies cannot be corrected within the 30–day show cause period, a written corrective action plan may be accepted. The written corrective action plan shall specify clear unequivocal action by the contractor with time limits for completion. Token actions to correct cited deficiencies will not be accepted. Once a Plan is deemed acceptable by INDOT, a contractor will receive a rescission of the Show Cause Notice and be provisionally deemed in compliance. A follow up review will be scheduled to take place within six to twelve (6-12) months.
 
Days
Shall mean calendar days.
 
Desk Audit
A preliminary review of a contractor’s EEO/AA compliance based on documentation analysis, only. Documentation is reviewed for completeness, reasonableness, accuracy, and indicators of patterns or practices that warrant further analysis. It may or may not lead to an Onsite Verification Review.
 
Discrimination
An act or failure to act, whether intentional or unintentional, through which a person in the United States, solely because of race, color, religion, sex, national origin, age, or disability, has been subjected to unequal treatment under any program or activity of a recipient, sub-recipient or contractor receiving Federal financial assistance.
 
Disadvantaged Business Enterprise (DBE)
An entity that is at least 51% owned or controlled by a socially and economically disadvantaged individual.  An individual claiming economic disadvantaged status must have an initial and continued personal net worth of less than $750,000
 
Economically Disadvantaged – Someone who comes from a family with an annual income below a level which is based on low-income thresholds according to family size published by the U.S. Bureau of the Census, adjusted annually for changes in the Consumer Price Index.
 Equal Employment Opportunity (EEO)
The absence of partiality or distinction in employment treatment, so that the right of all persons to work and advance on the basis of merit, ability, and potential is maintained.
 
Equal Opportunity Compliance Review
An evaluation and determination of a nonexempt direct Federal or Federal aid contractor's or subcontractor's compliance with equal opportunity requirements based on:
1. Project work force —employees at the physical location of the construction activity;
2. Area work force —employees at all Federal aid, Federal, and non-Federal projects in a specific geographical area as determined under  §230.409 (b)(9); or3. Home office work force —employees at the physical location of the corporate, company, or other ownership headquarters or regional
managerial, offices, including “white collar” personnel (managers, professionals, technicians, and clericals) and any maintenance or service personnel connected thereto.
 
Equal Employment Opportunity Officer
An individual formally appointed by a contractor, with the responsibility for and capability of effectively administering and promoting an active contractor program of equal employment opportunity, and who has been assigned adequate authority and responsibility to do so.
 
Equal Employment Opportunity Policy
A contractor’s coherent, comprehensive set of EEO-related notices and procedures—both for employees to read and as part of a contractor’s ongoing efforts to document compliance.
 
Equal Opportunity Requirements
A general term used throughout this document to mean all contract provisions relative to equal employment opportunity (EEO), subcontracting, and training.
 
Executive Order
An order prepared by the executive branch of the Federal Government and signed by the President of the United States to control the manner in which a law is to be implemented or enforced.
 
Good Faith Effort (GFE)
Affirmative action measures, as defined in this section, designed to implement the established objectives of an Affirmative Action Plan.
 
Labor Market
The geographic area in which the contractor recruits applicants for employment. The labor market may be different for various categories or groups of employees. For example, the contractor may recruit laborers from the city in which the contractor is located and professionals on a regional or statewide basis.
 
Metropolitan Statistical Area (MSA)
The geographic boundaries of a metropolitan area used by the U.S. Census Bureau.
Minority
Any person who appears to belong, or is regarded in the community as belonging to generally recognized racial/ethnic minority groups in the U.S., identified as one or more of the following groups:
1. Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
2. Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race);
3. Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent,
    or the Pacific Islands); and
4. American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable
    Tribal affiliations through membership and participation or community identification).
 
Non-Compliance
A contractor is found “in noncompliance” when there is sufficient information, data and evidence to determine that the contractor failed to effectively implement its nondiscrimination EEO/AA requirements. Generally, a finding of noncompliance results from: overt discrimination, insufficient Good Faith Efforts, insufficient documentation, insufficient EEO procedures, or for failure to take timely action.
 
Onsite Verification Review
A scheduled review visit by a Compliance Specialist to one or more of a contractor’s jobsites and/or home offices, that will likely entail, but is not limited to: inspection of facilities and equipment, interviews, document analysis, and conferences with responsible individuals.
 
Race/Gender-Conscious
Measures that are focused specifically on assisting only certified DBE firms.
 
Race/Gender-Neutral
Measures that are, or can be, used to assist all small businesses, including certified DBE firms.
 
Show Cause Notice (SCN)
A written notification to a contractor based on the determination of the Compliance Specialist that the contractor is in noncompliance with the equal opportunity requirements of the contract. Contractors must immediately schedule a compliance conference to have an approved Corrective Action Plan within thirty (30) days of receipt of the SCN. If the contractor does not comply, through inaction or otherwise, PennDOT may impose sanctions.
 
Socially and Economically Disadvantaged Individual
Any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is:
a. Any individual who is a recipient found to be a socially and economically disadvantaged individual on  
     a case-by- case basis;
b. Any individual in the following groups, members of which are reputably presumed to be socially and
     economically disadvantaged:
"Black Americans," which includes persons having origins in any of the Black racial groups of
 Africa;
"Hispanic Americans,” which includes persons of Mexican, Puerto Rican, Cuban, Dominican,
Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;
"Native America," which includes persons who are American Indians, Eskimos, Aleuts, or Native
  Hawaiians;
"Asian-Pacific American," which includes persons whose origins are from Japan, China, Taiwan,
Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia. Indonesia, the Philippines.Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru. Federated States of Micronesia, or Hong Kong;
"Subcontinent Asian Americans;' which includes person whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;
"Women";
Any additional groups whose members are designated as socially and economically disadvantaged by the SBA at such time as the SBA designation becomes effective.
 
State Highway Agency (SHA)
That department, commission, board, or official of any State charged by its laws with the responsibility for highway construction. The terms “State” or “PennDOT” should be considered equivalent to State highway agency. With regard to direct Federal contracts, references herein to SHA's shall be considered to refer to FHWA regional offices, as appropriate.
 
Trainee
A person receiving on-the-job training through a program approved or accepted by the, Department of Labor, Bureau of Apprenticeship and Training (BAT), PennDOT or the FHWA.
 
Underrepresentation
The contractor's work force does not approximate the percentage of women, minorities or persons with disabilities available for jobs in any particular job group or category from the relevant labor market in which the contractor recruits.
 
Underutilization
A term to describe a contractor’s work force where the percentage of minorities and/or females in a particular job classification is significantly less than that of the relevant Civilian Labor Force. The term can refer either to under-representation in: (1) numbers of individuals or (2) in the number of hours worked per employee. Where underutilization exists, a contractor must demonstrate Good Faith Efforts. If and only if a contractor evincing underutilization also lacks sufficient Good Faith Efforts, the finding may result in noncompliance.
 
Voluntary Corrective Action Plan (VCAP)
A written agreement reached between a contractor and PennDOT similar to a CAP in form. Where deficiencies are mostly minor in nature, PennDOT may accept a VCAP during the exit conference of an Onsite Review. If a VCAP is considered acceptable by PennDOT, a contractor will be deemed in compliance.