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Philadelphia Plan

PHILADELPHIA PLAN

PHILADELPHIA PLAN. On 25 June 1941 President Franklin D. Roosevelt issued Executive Order 8802, which declared that the policy of the government was to encourage full participation in national defense programs by all U.S. citizens, regardless of race, creed, color, or national origin. It established a Fair Employment Practice Committee (FEPC) with no funds, a limited staff, and no direct enforcement power. It was limited primarily to making recommendations to federal agencies and the president. Its significance was more symbolic than substantive, but it was the first government-wide administrative effort to establish a national policy of nondiscriminatory employment. It inspired continued efforts for the enactment of a federal FEPC law, and every president since has issued a similar executive order or kept his predecessor's. There was early success in the enactment of state FEPC laws, but Congress did not act until the Civil Rights Act of 1964, which implicitly approved John F. Kennedy's Executive Order 10925, issued in 1961. The order imposed on contractors (and their subcontractors) doing $10,000 or more of business with the federal government for the first time an obligation to engage in affirmative action to ensure equality of employment opportunity. The obligation was undefined; President Lyndon Johnson retained the Kennedy concepts in Executive Order 11246 (25 September 1965), and it remains in effect today.

The Philadelphia Plan itself—a local construction industry initiative of senior Philadelphia officials that was declared illegal in 1968 by U.S. Comptroller General opinion—is but an obscure historical footnote in this continued effort to help eradicate employment discrimination by executive orders. The plan likely would have passed into obscurity after the 1968 election of Richard Nixon. But an early embarrassment over affirmative action in the textile industry indirectly led to the issuance of the Philadelphia Plan Revised in 1969 to repair the administration's civil rights image. Limited to construction, the Philadelphia Plan included for the first time obligations overtly specifying goals and timetables. Thus began the thirty-year-long debate over affirmative action versus quotas.

In preparing the plan, the Department of Labor had conducted hearings and gathered statistical information to establish that minority participation in the six trades (ironworkers, plumbers and pipe fitters, steam fitters, sheet-metal workers, electrical workers, and elevator construction workers) was approximately 1 percent despite the fact that minorities were 30 percent of the construction industry in the area. In comparable skills trades, excluding laborers, minority representation was approximately 12 percent. There were jobs available and training to increase the pool of minorities. Against this factual backdrop, the plan mandated "good faith effort" to reach goals ranging from 5 to 9 percent in the first year, 9 to 15 percent in the second year, 14 to 20 percent in the third year, and 19 to 26 percent in the final year of the plan. At the highest ranges of the final year, the goal was less than the minority representation in the Philadelphia construction industry. If the contractors were able to reach the even lowest threshold of the ranges for each year, they would be in compliance. And the operative enforcement standard was "good faith effort" to reach the goals, not whether they were achieved.

Opponents of the plan sued in a federal district court in Pennsylvania in March 1970 and lost. Expecting victory, the Labor Department had issued Order No. 4 applying the Philadelphia Plan concept to nonconstruction contractors employing more than fifty employees with federal contracts of at least $50,000. After revisions, the order was published in the Federal Register. Multiple efforts to get federal legislation to restrict the utilization of the Philadelphia Plan and related rules failed. Instead, in 1992, Congress amended the Civil Rights Act of 1964 by adding Section 718, giving statutory support to affirmative action plans.

Despite periodic attempts since 1970 to convince Congress and presidents to prohibit affirmative action programs, provisions for all federally assisted construction contracts and hometown or imposed plans that explicitly refer to the Philadelphia Plan remain in place. The published rules and regulations of the Office of Federal Contract Compliance of the U.S. Department of Labor are contained in the Code of Federal Regulations of 2001 and also provide for goals and timetables for females, Vietnam-era veterans, and individuals with disabilities.

Prior to the Revised Philadelphia Plan, affirmative action under the executive order EO 11246 was largely hortatory. By 2001 it had substance and had spread throughout all U.S. business and industry. U.S. Supreme Court cases on affirmative action have included admission to university and professional schools, diversity in the media, contract set-asides, and a few employment cases, but none addressing the president's executive order EO 11246. Attacking any manifestation of affirmative action seems to have become a cottage industry for a conservative segment of society. Ironically, the main impetus for affirmative action was the Nixon administration's contribution to the civil rights arsenal. Meanwhile, if advertising

is the measure, corporate America has decided that demographics are destiny and diversity is good business.

BIBLIOGRAPHY

Book 3, "Employment." In Commission on Civil Rights Report. Washington, D.C.: U.S. Government Printing Office, 1961.

Code of Federal Regulations. Title 41, chapters 1–100, "Public Contracts and Property Management." July 1, 2000. Chapter 60, Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. Washington, D.C.: U.S. Government Printing Office, 2000. Part 60-4 regarding construction contractors included provisions for hometown plans as well as imposed plans. However, the rules specified that after its effective date "all solicitation of construction contracts shall include the notice specified in the regulation in lieu of the home-town and imposed plans, including the Philadelphia Plan." Thus the rules, published in the volumes of the Federal Register as of July 1, 2000, provide for updating goals and timetables, as applicable, in imposed or hometown plans. The rules also contain affirmative action and nondiscrimination for special disabled veterans and veterans of the Vietnam era and individuals with disabilities. In 41 CFR Part 60-20, the rules include goals and timetables for females, sex discrimination guidelines, and specifically require affirmative action to recruit women to apply for jobs from which they have previously been excluded.

Graham, Hugh Davis. The Civil Rights Era: Origins and Development of National Policy. Oxford and New York: Oxford University Press, 1990.

Jones, James E., Jr. "The Rise and Fall of Affirmative Action." In Race in America: The Struggle for Equality. Herbert Hill and James E. Jones, Jr., eds. Madison: University of Wisconsin Press, 1993.

Millenson, Debra A. "W(h)ither Affirmative Action: The Future of Executive Order 11246." University of Memphis Law Review 29 (1999): 679–737.

Norgren, Paul H., and Samuel Hill. Toward Fair Employment. New York and London: Columbia University Press, 1964.

James E.JonesJr.

See alsoAffirmative Action ; Discrimination .

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