ML20126C080
| ML20126C080 | |
| Person / Time | |
|---|---|
| Issue date: | 01/21/1980 |
| From: | Gossick L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML111190297 | List: |
| References | |
| TASK-CA, TASK-SE SECY-75-324, SECY-80-039, SECY-80-39, NUDOCS 8003260484 | |
| Download: ML20126C080 (11) | |
Text
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f+ t January 21. 1930 SECY-80-39 L
COMMISSIONER ACTION For: The Caniusiunen From: Executive Director for Operations
Subject:
SECTION 4010F THE ENERGY REORGANIZATION ACT OF 1974 AND ITS' IMPACT UPON THE EMPLOYMENT PRACTICES OF NRC LICENSEES AND APPLICANTS FOR A LICENSE Pu rcose: Obtain pclicy guidance (Alternative purpose: Obtain CommissionComment).
Catego ry: This paper covers a major policy matter. Resou rce estimates, Category 1, preliminary.
Issue: Whether the Commission has the responsibility under section 401 of the Energy Reorganization Act of 1974 to determine if the employment practices of an applicant for a Commission license or Commission licensee involve sex discrimination.
Decision:
Criteria: 1. Section 401 of the Energy Reorganization Act of 1974 and the legislative history.
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- 2. Effect upon the licensing process.
- 3. Effect upon licensees.
- 4. Effect upon the overall Federal effort to ensure equal employment opportunity in the private sector. l
- 5. Role of other Federal departments and agencies.
Alternatives: 1. Apply section 401 to require that the Commission itself not discriminate on the basis of sex in its cwn licensing and regulatory activities.
- 2. In addition to Alternative I, the Commission would detennine whether the employment practices of an applicant for a Commission license or a Commission licensee result in sex discrimination.
Contact:
Edward E. Tucker, 27697 .
Jay W. Maynard, 28252 8008260 4 4
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The Commissioners Discussion: ,In SECY-75-324, dated July 1, 1975, the extent of Com-mission involvement in the employ 9ent practices of its licensees or applicants was addressed, but it was recom-mended that any action be daferred pending the Supreme Court decision in the casa of t'MCP v. Cederal Power Comi s s ion. On May 19, 1976, the Supreme Court rendered its decision.
In NAACP, the Supreme Court was presented with the question of whether the FPC, through its regulatory function, could combat racial discrimination by those it regulated. The NAACP had argued that since it was in the public interest to eliminate discrimination, the FPC was obligated to consider the employment practices of those it regulated because of a statute which required the FPC to act in the "public interest." The Court, however, held that "the use of the words 'public interest' in a regulatory statute [such as in the FPC statute] is not a broad license to promote the general public welfare.
Rather the words take meaning from the purposes of the regulatory legislation." Nevertheless, the Court observed that since unlawful discrimination could precipitate back pay awards and other unnecessary labor costs to be incurred by regulatees, the FPC in its approval of rates could consider discriminatory practices by its licensees as it would consider other factors which affect rates in the power industry. The NAACP case stands for the proposition that a Fejeral regulatory agency may not concern itself with alleged discriminatory employment practices of its regulatees unless there is a nexus between such discrimination and the purposes of the regulatory legislation which created the agency.
In a memorandum to the Commission dated July 9,1976, from Peter L. Strauss, the NRC General Counsel, the NAACP case was analyzed in some detail. The General Counsel examined the question of whether NRC's mission to regulate the use of nuclear power in order to protect the public health and safety provided legal authority for MRC to review the employment practices of its regu-latees with regard to discrimination. The memorandum (see Enclosure A) concluded that NRC "has no authorit to become directly involved in employment practices [yof licensees] on any explicit statutory basis."
Recently, discussions took place between members of the Department of Justice Task Force on Sex Discrimination
! and representatives of the NRC Office of Equal Emoloy-l ment Opportunity and Office of the Executive Legal i
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The Commissioners ,
Director.M One of the issues raised was whether sec-tion 401 of the Energy Reorganization Act of 1974 (ERA),2
which prohibits sex discrimination in certain activities, extends to the employment practices of Commission licen-sees and applicants for a license. !t was agreed that MRC would consider the aatter. (For background informa-tion on Department of Justice Task Force and its observa-tions, see Enclosure D.)
As noted previously, past considerations of whether the Commission should become involved in employment practices ,
have not contained an analysis of section 401 or considered !
its effect upon the licensing process. 10 CFR 5 19.32 contains language that is nearly identical to section 401 and may arguably serve to protect licensee employees against sex discrimination employment. However, the staff paper and statement of considerations proposing the promulgation of s 19.32 did not state its purpose or scope other than noting that the section was intended to implement the prohibition against sex discrimination contained in section 401. See SECY-75-7 (January 22, l I
1975).
Section 401 proscribes sex discrimination "under any i program or 99tivity carried on or receiving Federal assistance"r under the ERA. This language clearly prohibits the Commission itself from discriminating on if These discussions related to responsibilities the NRC has under various civil rights statutes'but did not concern the EE0 Program for NRC empl oyees.
y Section 401 provides: "No person shall on the ground of sex be excluded from participation in, be denied a license under, be denied the benefits of, or be subjected to discrimination under any program or activity carried on or receiving Federal assistance under any title of this Act. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under title VI of the Civil Rights Act of 1964.
However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee." (Approved October 11,1974). Discrimination based on sex is the only type of discrimination proscribed by section 401.
y The Commission program to implement section 401 and Title VI of the Civil Rights Act of 1964 as they relate to Federal financial assistance, is contained in 10 CFR Part 4. The NRC program to ensure compliance with Part 4 is described in Enclosure B.
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The Commissioners the basis of sex in its own licensing and regulatory ,
activities. Substantially less clear, however, is whether under section 401 the Commission has .any responsibility.for determining if the employment practices of a licensee or apolicant constitute sex discrimination. The Executive Legal Director has concluded:
"There are no certain legal answers to the questions raised by [Sec. 401], although at a minimum NRC must refrain from discriminating '
in its licensing and regulatory activities.
The regulations provide a partial solution to some of the problems, but it should be recog-nized that the regulations are capable of improvement. Ultimately, the interpretation of [Sec. 401] rests with the discretion of the Commission. It will have to decide upon an interpretation that makes the most sense from policy and administrative aspects. The inter-pretation of [Sec. 401] should result .n a fair and enforceable program. Finally, although open to question on grounds of equity, the law is such that [Sec. 401] authorizes fRC involve- ;
ment in sex discrimination alone."
In connection with this issue we surveyed the practices of several Federal agencies with respect to their involve-ment in the employment practices of regulatee's or licen-sees in regard to the issue of discrimination.. Because of the many variables in applicable statutes., the survey results do not provide much guidance.
Section 401, while it also applies to the Department of Energy, has not been interpreted with respect to its impact on 00E licensees, e.g. utilities operating non- l federal hydroelectric plants which are licensed by the Federal Energy Regulatory Commission.
The Federal Communications Commission is involved exten-sively in reviewing the employment practices of its
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- 4) Memorandum from Howard X. Shapar, Executive Legal Director, to Edward E.
Tucker, Director, Office of Equal Employment Opportunity. The Executive Legal Director's memorandum is enclosed as Enclosure C.
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The Commissioners -S-broadcast licensees. However, the authority for such action was specifically sanctioned by the Supreme Court in NAACP which noted that such regulatory activity "can be justified as necessary to enable the FCC to satisfy its obligation under the Communications Act of 199
[ citation omitted] to ensure that its licensees' pro-gramming fairly reflects the tastes and viewoolnts of minority groups." For details pertaining to FCC EE0 programs and procedure for enforcement, see Enclosure E.
The Interstate Commerce ' Commission has closely followed the guidance of NAACP. It considers employment discrimi-nation in the course of its regulatory function only insofar as it affects the ICC's responsibility to regu-late rates of interstate carriers.
The Civil Aeronautics Board does not consider employment discrimination issues in the course of its regulatory function.
The General Services Administration and Federal Highway Administration have statutes that are similar to sec-tion 401. However, these statutes do not cover licensing.
GSA is currently reviewing its implementation of the statute as it relates to recipients of Federal financial assistance.
It is believed that the statute and its legislative history permit the Commission to follow either of two courses of action to comply with the law:
- 1. Continue its present implementation of section 401 by prohibiting sex discrimination in its own licensing and regulatory program.
This course of action requires that Commission decisions, in the course of its licensing and regulatory activities be made without regard to the sex of the applicant or licensee.
- 2. IJndertake to protect the employees of applicants and licensees from discrimination on the basis of sex by refusing to issue a license, rescinding or amending a license, or issuing a license with such conditions as the Commission deems appropriate.
4 S 4 The Commissioners This course of action would require the Commission, in the implenentation of its licensing and regula-tory activities, to take into account the employment practices of an applicant or licensee to deternine whether those cracticas result in discrimination based upon sex.
This position, if accepted, could be implemented in one, or a combination of ways. The methods listed are often used by Government agencies in their enforcement of various civil rights statutes.
These methods include:
- a. ' requiring the-applicant or licensee to furnish '
a written assurance of compliance prior to -
issuance or amendment of the license. The applicant or licensee would assure the NRC that it does not engage in sex discrimination in its employment practices;
- b. requiring the applicant or licensee to provide NRC access to its employment records;
- c. requiring the filing of compliance reports and/or conduct periodic compliance reviews, as detennined by the NRC EE0 Office to be necessary;
- d. requiring applicants and licensees to notify appropriate labor unions of the provisions of section 401;
- e. requiring applicants and licensees to submit a written, comprehensive affirmative action pro-gram for the employment and advancement of women. This would include a utilization ,
analysis of the company's workforce, an identi-fication of " problem areas" and, if necessary, the setting of goals and timetables to correct '
any problems identified; ;
- f. processing and investigating ccmplaints of sex discrimination by employees.
Alternative 1: Apply section 401 to require that the Commission itself not discriminate on the basis of sex in its own licensing
' and regulatory activities.
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- g-The Commissioners .
The Senate Report accompanying S.2744M notes that while Title VII of the Civil Rights Act of 1964 prohibits sex discrimination in employinent, Title VI of that Act, which applies only to recipients of Federal financial assistance, dg basis of sex.:ps not prohibit disc'rimination on theTherefore, is amended to prohibit discrimination on the basis of sex, section 401 remains necessary. This explanation suggests that section 401 was enacted primarily for the purpose of prohibiting sex discrimination in NRC-sponsored Federally assisted programs, since Title VI does not prohibit such discrimination.
y Section 401 appeared in the later versions of both the House (H.R.11510) and Senate (S. 2744) bills which, after conference, became P.L.93-438 (the Energy Reorganization Act of 1974). Since the provisions of both H.R.11510 and S. 2744 contained language that is identical to that incorporated in P.L.93-438, the conference report does not contain any explanation as to the Congressional intent regarding Section 401. The report accompanying H.R.11510 contained a very cryptic explanation. It states:
"Section 401 bars sex discrimination in connection with any license, activity, or Federal assistance under this Act."
The Senate Report is somewhat more expansive but offers limited guidance with respect to the issue at hand. The Report provides:
"Section 401 bars sex discrimination in connection with any l license, activity or Federal assistance under this Act. i l
Sex discrimination is prohibited under title VII of the 1964 Civil Rights Act, which relates to employment by firms with 15 or more employees and has been amended to include State and local govern- l ments, but sex discrimination is not prohibited under title VI, !
which relates to federally assisted programs and activities. This amendment says that no person shall on the ground of sex be excluded l from or denied the benefits of, or be subjected to discrimination l under any program in this particular act. Until such time as 1 title VI of the Civil Rights Act is amended this approach remains l l
necessary. "
y Title VI provides: "no person shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." At the present time, NRC provides such financial assistance only to states participating in the Agreement States program or in NRC-sponsored emergency prepared-ness training pursuant to section 274 of the Atomic Energy Act of 1954, as amended.
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2 The Commissioners -S- .
Moreover, the language of section 401 provides th.. it shall be .cnforced "through agency provisions and rules similar to those already established, with respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964." Title VI.apolies only to discrimination by recipients of Federal financial assistance. At the present time NRC " recipients" include states that particicate in the Agreement States ,
Program or in NRC-sponsored emergency preparedness training. NRC regulations implementing Title VI are codified at 10 CFR Part 4 and primarily apply to situa-tions where persons
- are eligible to participate in and benefit from feoerally assisted programs are disc-riminated against and precluded from participation in such programs. Part 4 generally does .not apply to discrimination in the employmentgractices of recipients of Federal financial assistance.- Congress' directive to enforce section 401 in a manner similar to that used for enforcement of Title VI may indicate an intent on the part of Congress that section 401 go no further than Title VI in . regard to employment discrimination.
The pros and cons of this alternative are:
Pros: 1. The NRC would not become involved in an area which is within the jurisdiction of other Federal agencies which have substantial expertise in employment discrimination. This would prevent further duplica-tion of Federal agency involvement in employment practices. For example, the E Opportunity Commission (EE0C) qual Employment is responsible for enforcing Title VII of the Civil Rights Act of 1964, as amended, which prohibits various foms of discrimination, including sex, in the private sector.
The EE0C has specific statutory authority to act against employers (with 15 or more employees) who do not comply with Title VII. Thus, any NRC licensee employing 15 or more persons is currently subject to enforcement action by the EE0C if they are found to have discriminated a' gainst its employees on the basis of sex. The employment practices of such licensees are subject to ongoing review by the EE0C and may be the subject of a complaint
! which employees may file with the EE0C.
l/ 10 CFR 5 4.13 provides for NRC involvement in the employment prac-tices of. recipients of NRC-sponsored Federal financial assistance in limited circumstances. Such involvement is only authori::ed by that section if the primary objective of that Federal financial assistance is to provide employment. At the present time, the Commission provides no assistance of this type.
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4 The Commissioners .
Further, the Department of Labor, Offica of Federal Contract Compliance Programs (0FCCP) is charged with assuring that Government contractors do not discriminate in their employment practices on the basis of sex. Thus, the employment oractices of NRC licensees who are also Government contractors, are subject to 0FCCP scrutiny.
Cons: This alternative would preclude the use of the NRC licensing and regulatory process as an additional means of enforcing the overall Federal Government policy pro-hibiting sex discrimination in private sector employment.
Resource Imoact.- Impact on Commission resources would
- be minimal.
Alternative 2: In addition to Alternative 1, the Commission would determine whether the employment practices of an applicant for a Commission license or a Commission licensee involve sex discrimination.
The interpretation of the legislative history set forth in Alternative 1 is not necessarily the only correct one that may be proffered in an attempt to derive meaningful guidance from the statute. While section 401 covers licenses, activities or Federal assistance under the ERA, the Senate Report can be construed as primarily commenting on the reference to Federal financial assist-ance. This interpretation is supported by the fact that the Senate Report begins:
"Section 401 bars sex discrimination in con-nection with any license, activity or Federal assistance under this Act." [ emphasis supplied]
.Thus, it may be said that the Senate Report is comment-ing only on the phrase " Federal assistance" and is not intended to indicate that the sole or primary purpose of section 401 is to perfect Title '!I by prohibiting sex discrimination in NRC-sponsored federally assisted programs.
Moreover, the language of the statute itself refers to any program or activity carried on cLr_. receiving Federal assistance. It may be argued that this language indi-cates an intent to prohibit sex discrimination not only in Federally assisted programs but also in programs or activities " carried on" under the Energy Reorganization s
The Commissioners Act of 1974 This could refer to activities " carried on" by licensees or applicants for a license, including their employment practices.
The pros and cons of adopting this alternative are as follows:
Pro: Implementation of section 401 as stated in Alternative 2 would make the NRC licensing and regulatory process available to NRC as a means of enforcing the overall Federal Government policy against sex discrimination in private sector employment.
Cons: 1. The licensing process could be affected by substan-tially increasing the time required for. the proc-essing of a license application or modification therefor.
- 2. The NRC would become another Federal agency involved in the protection of licensee employees from sex discrimination thereby duplicating the enforcement activities of other Federal agencies, e.g., Title VIf of the Civil Rights Act of 1964, as amended, is enforced by EE0C in regard to employers with 15 or more employees; Executive Order 11246 is enforced by' the Department of Labor, Office of Contract Compliance Programs in regard to most Government contractors . ,
Resource Impact - Impact upon resources of NRC and licensee personnel could be substantial. NRC would need additional compliance review officers in the Office of EE0. The number of such officers required would depend upon which enforcement measures (see p. 6), the Commission implemented. Moreover, questions regarding an applicant's or licensee's employment practices could be at issue in hearings to detemine eligibility for a license or license modifications. This could have a significant fmpact on Commission resources.
I recommend that the Commission adopt Alternative 1.
Under this Al ternative the requirements of section 401, not to discriminate on the basis of sex, would be applied to the Commission itself in connection with its licensing ectivities.
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The Commissioners As has been noted in the discussion above, the Commission has the discretion to adopt either Alternative 1 or Al ternative 2. Alternative 2 would call for a much more expansive application of section 401 and would involve the Commission in the employment practices Of !!RC licansees and applicants for MRC licenses.
I am recommending the adoption of Alternative 1 for eso reasons. One, other Federal agencies, which have sub-stantial' experience in the field of EEO, m 'eady have the requisite authority and expertise to dea. with allegations of sex discrimination directed at most-of .
the NRC licensees or prospective and present applicants !
for NRC licenses..
Secondly, at a time in the evolution of the NRC where personnel necessary for the implementation of a host of priority programs are in short ' supply, I do not believe it prudent to divert personnel to the implementation of a program which is being and can be done by other Federal agencies. The NRC is especially qualified and has the sole responsibility in many instances to assure that the recent redirected programs relating to health and safety of the public and the protection of the environment are fully developed and implemented. It should dedicate its efforts and its limited personnel resources to these high priority programs.
Recommenda tion: That the Commission: Aoorove Alternative 1: Apply
, Section 401 to require that the Commission itself not discriminate on the basis of sex in its own licensing and regulatory activities.
Coordination: The Office of the Executive Legal Director provided the legal analysis contained in this paper. OEE0 nonconcurs;
. his alternative recommendation that the Commission assure compliance with Section 401 by regulating licensees' employment practices using minimal enforcement procedures is at Enclosure F.
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[p<C V. Issick
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Executive Director for Operati inc -
The Commissioners
Enclosures:
A. Memo fr0m Strauss (0GC) to the Commissioners: NAAC? v. FPC B. NRC Procedures Currently in Effect for the Enforcement of Title VI C. Legal Analysis of Title IV of the ERA D. 3ackground f aformation regarding the Jepartment of Justice Task Force on Sex Discrimination E. FCC Procedures for Enforcing Mon-Discrimination F. Noncourrence of OEE0 ;
G. Memorandum to Chairman Anders from E. Tucker dated 2/11/75.
Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b.
Tuesday, February 5,198n.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT January 29, 1980, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. l i
DISTRIBUTION Commissioners Commission Staff Offices Sexec Dir for Operations ACRS Secretariat
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ENCLOSURE A t
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