tionals born abroad which may affect their acquisition and retention of United States citizenship. This matter is currently in litigation.' Hence this Statement does not necessarily apply to loss of United States citizenship acquired as a result of birth abroad to a citizen parent or parents. This Statement has no application to a revocation of naturalization unlawfully procured. See Afroyim v. Rusk, 387 U.S. at 267, n. 23. RAMSEY CLARK. Bellei v. Rusk, awaiting decision in the United States District Court for the District of Columbia [No. 3002-67, decided Feb. 28, 1969; appeal to United States Supreme Court pending]. LEGALITY OF REVISED PHILADELPHIA PLAN The requirement in Executive Order 11246 that a contractor take “affirmative action" to ensure that employees and applicants are treated without regard to race, color, religion, sex, or national origin imports something more than the merely negative obligation not to discriminate. The Department of Labor's Revised Philadelphia Plan, requiring bidders on certain contracts covered by Executive Order 11246 to pledge good faith efforts to meet specific goals for hiring of minority group persons, is not in conflict with Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and is a lawful implementation of the Executive order. Revised Philadelphia Plan does not require contractor to discriminate in violation of Title VII of the Civil Rights Act. Good faith efforts required by Plan do not include any action which would violate Title VII. Title VII does not prohibit employers from considering race or national origin at any stage of the hiring process. Obligation of nondiscrimination does not require obliviousness or indifference to the racial consequences of the application of outwardly neutral criteria. Title VII does not forbid employers to structure their hiring process so as to broaden the recruitment base and thus to encourage the employment of members of minority groups. The affirmative action obligation imposed by Executive Order 11246 may require such action. Where Department of Labor has found that employers' practice has been to obtain employees on the basis of referral by local unions and that unions refer very few members of minority groups, Department may require that employers depart from customary reliance on union referrals in order to comply with their obligations under the Executive order. It cannot be assumed from provisions of the Philadelphia Plan that its practical effect will be to require contractors to choose between noncompliance with the Plan and violation of Title VII. Title VII is not the exclusive remedy for racially discriminatory practices in employment, and Executive Order 11246 may require of Government contractors "affirmative action" above and beyond what Title VII requires of employers generally. Views expressed in formal opinion of the Attorney General may be relied on by executive departments and agencies and their accountable officers, notwithstanding contrary views expressed by the Comptroller General. THE SECRETARY OF LABOR. SEPTEMBER 22, 1969. MY DEAR MR. SECRETARY: You have requested my opinion as to the legality of the Department of Labor's order of June 27, 1969, the Revised Philadelphia Plan for Compliance with Equal Employment Opportunity Requirements of Executive Order 11246 for Federally-Involved Construction. The Philadelphia Plan has been issued to implement Executive Order 11246 of September 24, 1965, as amended (30 F.R. 12319, 32 F.R. 14303, 34 F.R. 12985), in which the PresiIdent has directed that Federal Government contracts and federally-assisted construction contracts contain specified language obligating the contractor and his subcontractors not to discriminate in employment because of race, color, religion, sex, or national origin.1 The Secretary of Labor is responsible for the administration of Executive Order 11246 and is authorized to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof." E.O. 11246, sec. 201. Among the undertakings required of contractors by Executive Order 11246 is to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." E.O. 11246, sec. 202 (1). The obligation to take "affirmative action" imports something more than the merely negative obligation not to discriminate contained in the preceding sentence of the standard contract 1 The essential part of the contractor's obligation under this order is: "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: 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. ***" E.O. 11246, sec. 202(1). In addition the contractor agrees to furnish required information and reports, to comply with orders and regulations implementing the Executive order, and to include these contractual provisions in subcontracts. |