|Issuer:||Michael S. Dukakis|
|Mass Register:||No. 354|
|Amending:||Executive Order 74|
|Amending:||Executive Order 116|
|Amending:||Executive Order 117|
|Amended by:||Executive Order 235|
|Amended by:||Executive Order 253|
|Revoked and Superseded by:||Executive Order 452|
Table of Contents
The Commonwealth of Massachusetts has led this nation, since its birth, in protecting the rights and privileges of individuals. The Massachusetts Constitution of 1780, which has been a model for other states, is based on a belief in freedom and equality for all mankind, and in the duty of Government to safeguard and foster, for its people, the enjoyment of these rights.
Our continued commitment to this principle is demonstrated by our strong laws prohibiting discrimination because of race, color, religion, creed, ancestry, national origin, military status, sex, age, and handicap in the areas of employment, education, private and public housing units, commercial property and public accommodations.
But, in spite of these accomplishments, much remains to be done. Many families presently suffer from inadequate income, sub-standard and overcrowded housing, and inferior education because discrimination and de facto segregation bar them from the better jobs, dwellings and schools. We recognize that any such effects of any illegal past or present discriminatory practices by state agencies and appointing authorities must be affirmatively remedied, and that the ratio of racial and sexual makeup of the state work force should, at all levels, reflect the ratio of racial and sexual makeup of the population where the jobs exist.
We have made a beginning, but, if we are to finish the job we have begun, all branches of our state government must take the lead in the struggle for human rights, and must exert their authority and exercise their talents for the enforcement of our anti-discrimination laws and the promotion of equal opportunities for all persons through affirmative action.
In order to meet this obligation, I, Michael S. Dukakis, Governor of the Commonwealth of Massachusetts, by virtue of the the authority vested in me by the Constitution and by the statutes of the Commonwealth, do hereby adopt the following Governor's Code of Fair Practices, and do hereby order and direct that the said Code be the governing and guiding policy of the Executive Branch of the Government of the Commonwealth of Massachusetts.
Article I Declaration of Policy:
1.1 Nondiscrimination and equal opportunity are the policy of the Executive Department of the Commonwealth of Massachusetts in all of its decisions, programs and activities. To that end, each executive officer serving under the Governor, and all state employees shall rigorously take affirmative steps to ensure equality of opportunity in the internal affairs of state government, as well as in their relations with the public, including those persons and organizations doing business with the Commonwealth. Each agency, in discharging its statutory responsibilities, shall consider the likely effects which its decisions, programs and activities shall have in meeting the goal of equality of opportunity.
1.2 Affirmative action requires more than vigilance in the elimination of discriminatory barriers to employment on the grounds of race, color, religion, creed, ancestry, national origin, age, sex, and handicap. It requires positive and aggressive measures to ensure equal opportunity in the areas of hiring, promotion, demotion or transfer, recruitment, layoff or termination, rate of compensation, inservice or apprenticeship training programs, and all terms and conditions of employment. Affirmative action shall include efforts required to remedy the effects of present and past discriminatory patterns and practices, and any action necessary to guarantee equal employment opportunity for all people.
1.3 All agencies and appointing authorities of the Commonwealth shall initiate affirmative action programs designed to conform with this policy. All such affirmative action programs shall be subject to review by the Executive Office of Administration and Finance ("Commissioner"), the Massachusetts Commission Against Discrimination ("MCAD"), and the State Office of Affirmative Action ("SOAA").
1.4 All powers, functions, and duties granted to the Governor, the Commissioner of Administration and Finance, the Massachusetts Commission Against Discrimination, and the State Office of Affirmative Action, under any provision of law, shall apply also to this Code, and shall be construed liberally for the accomplishment of the purposes hereof.
Article II Employment Policies of State Agencies
2.1 State officials and supervisory employees shall appoint, assign, train, evaluate, compensate, and promote state personnel on the basis of merit and fitness, without regard to race, color, creed, religion, national origin, ancestry, language, sex, age, or handicap unless a preference, limitation or specification based upon sex, age, language, military service, or otherwise, is required by law, or unless, in the case of a handicapped person, said person is unable to perform the bona fide responsibilities of the position, as determined by either the Division of Personnel Administration or the State Office of Affirmative Action, or unless sex or proficiency in the English language is deemed by the Massachusetts Commission Against Discrimination to be a bona fide occupational qualification for employment.
2.2 The Commissioner of Administration and Finance shall have overall responsibility for ensuring equal opportunity and affirmative action for women and minorities in the Commonwealth, and shall be assisted by a Director of the State Office of Affirmative Action who he/she shall appoint.
2.3 The Director of the State Office of Affirmative Action ("State Director") shall be the chief Affirmative Action Officer for internal employment for the Commonwealth, and shall carry out the Commonwealth's policy on nondiscrimination, equal opportunity, and affirmative action.
The State Director shall:
(1) recommend appropriate standards and procedures governing the preparation, submission, and review of affirmative action plans by all agencies.
(2) give final approval or disapproval of all affirmative action plans prepared by such agencies and appointing authorities as submitted by the Secretariat.
(3) conduct an ongoing review of affirmative action plans and their implementation to assure that they comply with such plans and the intent of this Executive Order.
(4) establish a uniform grievance procedure which shall be available to any person subject to this Executive Order, including applicants, as well as employees, to determine any and all issues arising from this Executive Order and related to affirmative action plans. However, such procedures need not conform to Massachusetts General Law Chapter 30A.
(5) monitor the approval of all personnel requisitions and appointment forms submitted to the Personnel Administrator by appointing authorities within state government after approval by the Secretariat Affirmative Action Officer. If the State Director determines that an agency has not been in compliance with its hiring or promotion goals, he/she may impose, after written notice, a hiring freeze on any or all positions of the agency until such time as a determination has been made by the Equal Employment Panel, as described in Section 2.12 below, that the agency is in compliance.
(6) report, from time to time, but at least every three months, to the Governor and the Commissioner of Administration and Finance on the progress being made by secretaries and all their appointing authorities in administering their affirmative action plans.
(7) ensure that the state personnel system is operated in ways which provide assistance to appointing authorities in meeting the affirmative action goals.
(8) require Affirmative Action Officers to submit information on the status of their affirmative action plans on at least a quarterly basis, and whenever deemed necessary by the State Director.
(9) have any additional powers that are necessary to carry out the Commonwealth's policy of nondiscrimination and equal employment.
2.4 Effective immediately, the Secretary of each Executive Office shall:
(1) have an approved affirmative action plan, and cause each agency or appointing authority under his/her control to have such a plan, setting forth goals and timetables. These plans shall require each agency or appointing authority to employ all reasonable measures to eliminate the effects of any past or present discriminatory employment practice. The timetable for achieving the goals set forth in affirmative action plans shall be closely reviewed by the State Director to ensure that they are reasonable. The State Director shall also ensure that said plans will, within a reasonable period of time, lead to the goal of parity with the city or the standard metropolitan statistical area population, which the State Director determines is appropriate.
(2) appoint a highly placed person, who shall report directly to the Secretary of the Executive Office and who shall be designated the Secretariat Affirmative Action Officer, to supervise enforcement and development of affirmative action plans by agencies and appointing authorities within each Secretariat, including the Executive Office. Each Secretariat Affirmative Action Officer shall, whenever possible, be exempt from Civil Service.
(3) consider its existing staffing patterns when preparing its affirmative action plan, and when such patterns indicate a pattern of staffing of racial minorities and women that is not fairly reflective of the percentage of minorities and women where the jobs exist, shall state in the affirmative action plan the remedial measures the Secretary of the Executive Office intends to employ to correct the disparity.
2.5 Each Secretariat Affirmative Action Officer shall:
(1) review affirmative action plans within his/her Secretariat and Executive Office to ensure that they meet the guidelines of the State Office of Affirmative Action.
(2) submit Secretariat affirmative action plans to the State Director for approval.
(3) recommend approval or disapproval and sign-off on all appointment forms and personnel requisitions.
(4) report all disapprovals to the State Director, as defined in paragraph 2.3 of this Article.
(5) report to the State Director any problems that they experience in enforcing and administering the affirmative action plan or plans within their Secretariat, as defined in 2.3(2).
(6) require agency Affirmative Action Officers to submit to the Secretariat information on the status of their plans on a quarterly basis and whenever necessary as determined by the State Director.
2.6 Effective immediately, the chief executive of each agency or appointing authority shall:
(1) appoint a highly placed person, who shall report directly to the chief executive, to administer and enforce the affirmative action plan of such agency or appointing authority. Each such person, who shall be designated as the agency Affirmative Action Officer, shall, whenever possible, be exempt from Civil Service.
(2) issue clear, written directives for each agency, commission, department or other subdivision within his/her authority, and to each person in a decision-making position with respect to employment, layoffs, terminations, promotions, or job responsibilities, to carry out the approved affirmative action plan.
2.7 Each agency Affirmative Action Officer shall:
(1) write and design affirmative action plans within his/her office which are to be sent to the Secretariat Affirmative Action Officer for further review.
(2) in preparing an affirmative action plan, conduct a utilization analysis, and when such analysis indicates a pattern of staffing of racial minorities and women that is not fairly reflective of the percentage of minorities and women where the jobs exist, take appropriate, remedial action.
(3) recommend approval or disapproval and sign-off on all appointment forms and personnel requisitions which are to be reported to the Secretariat Affirmative Action Officers for their Secretaries.
2.8 If any agency or appointing authority does not have an approved affirmative action plan within 60 days after the effective date of the Executive Order, the State Director shall establish such employment plan for such agency or authority.
2.9 Each agency and appointing authority shall be required to file with the State Office of Affirmative Action, an annual report through the appropriate secretary, by July 30th of each year for the period ending June 30th, on actions taken during the preceding fiscal year to implement its affirmative action plan.
Notwithstanding the foregoing, the Chairman of the Massachusetts Commission Against Discrimination and the State Director may, at any time, request, and shall receive, such information they deem appropriate for purposes of monitoring compliance.
2.10 The Civil Service Commission and the Department of Personnel Administration, in conjunction with the State Director, shall employ systematic efforts to ensure that the procedure for appointing persons to state service, including the development and administration of written and oral examinations, job specifications and employment qualifications, are free from either deliberate or inadvertent bias, and have been examined to eliminate any discriminatory effect on minorities or women. All examinations for entry or promotional appointments shall be designed clearly and demonstrably to test an applicant's actual ability to discharge the duties of the position for which the person seeks appointment.
2.11 The State Director shall investigate instances of noncompliance with an approved affirmative action plan. Whenever he/she determines, after investigation, that any party, either partly or wholly responsible for the implementation of an affirmative action plan, is in noncompliance, he/she shall, where appropriate, assume sign-off powers over all personnel actions and requisitions until there is satisfactory compliance.
The State Director shall refer to the Massachusetts Commission Against Discrimination any information which he/she believes may constitute a violation of the laws. The Commission shall initiate complaints against those agencies or persons who it has reason to believe are in violation of the laws.
2.12 Any secretary who objects to the determination of the State Director may appeal to a panel consisting of the Commissioner of Administration and Finance or his/her designee who shall be the Chairperson, and the Chairman of MCAD or his/her designee, and a third individual selected jointly by these two officials. This panel shall be called the Equal Employment Panel, and shall have authority to take whatever action it deems appropriate and consistent with the policy of this Executive Order.
2.13 Nothing in this Article shall be deemed to diminish the powers, duties, or jurisdiction of the Massachusetts Commission Against Discrimination including, but not limited to, its powers to act with respect to complaints against any agency or person.
2.14 The State Director shall refer all instances of possible violation of MGL 151B to the MCAD for appropriate action.
2.15 Every appointing authority shall post in a conspicuous place a notice to be prepared or approved by the Commissioner of Administration and Finance or the Director of the State Office of Affirmative Action which shall set forth excerpts of this order, and such other information which the Commissioner of Administration and Finance or the Director of the State Office of Affirmative Action deems necessary to explain this Executive Order.
Article III State Services and Facilities
3.1 All services of every state agency shall be performed without discrimination based on race, color, religion, creed, national origin, ancestry, age, sex, or handicap unless otherwise provided by law. No state facility shall be used in the furtherance of any discriminatory pattern or practice, nor shall any state agency become a party to any agreement, arrangement, or plan which has the effect of sanctioning such patterns or practices.
3.2 Each appointing authority shall, at the request of the MCAD or of the State Director, critically analyze all of its operations to ascertain possible instances of noncompliance with this policy, and shall, as soon as possible, implement sustained, comprehensive programs based on MCAD (or, in the case of the handicapped, SOAA) guidelines to remedy any defects found to exist.
Article IV Contracts
4.1 Every state or state-assisted contract for public buildings and public works, or for goods or services shall contain an article prohibiting discriminatory employment practices by contractors, subcontractors, and suppliers of goods or services based on race, color, religion, creed, national origin, ancestry, age, sex, or handicap. The nondiscrimination article shall:
(1) Include provisions requiring contractors and suppliers of goods and services to give written notice of their commitments under this article to any labor union, association or brotherhood with which they have a collective bargaining or other agreement.
(2) Give such notice to minority and women contractors, and to minority contractor associations.
4.2 It is the policy of the Commonwealth of Massachusetts to require that every state contract or state-assisted contract for public buildings and public works, and for goods and services which total $50,000 shall contain an article requiring the contractor, and his/her subcontractors, to undertake, through every possible measure, such affirmative action programs as may be required by the Secretary of the Executive Office within which the contracting or assisting agency is located (or, if such agency is not located within an executive office, then such secretary as shall be designated by the Commissioner of Administration and Finance).
4.3 The Secretary of each Executive Office shall require that the contracting or assisting agency include, as part of state or state-assisted contracts for public buildings and public works, a version of the Commonwealth's Supplemental Equal Employment Opportunity, Anti-discrimination and Affirmative Action Program, appropriately adapted by the MCAD.
4.4 The objective of such affirmative action shall be:
(1) to eliminate all past and present effects of discrimination in employment because of race, color, religion, sex, age, handicap, or national origin:
(2) to promote the full realization of equal employment opportunity for minorities and women; and
(3) to promote business opportunities in the Commonwealth for minority and women contractors through positive and continuing programs.
4.5 Such contractual provisions shall be fully and effectively enforced, and any breach of them shall be regarded as a material breach of the contract subject to appropriate sanctions. The Massachusetts Commission Against Discrimination shall be responsible for determining compliance with nondiscrimination and affirmative action sections of state contracts. In the event of a finding of noncompliance with these provisions, the contracting agency shall impose such on contract sanctions, consistent with the law and contractual agreements, as it may deem appropriate to attain full and effective enforcement.
4.6 In implementing this policy of nondiscrimination and affirmative action, all contracting and assisting agencies shall cooperate with, and utilize, the expertise of the Massachusetts Commission Against Discrimination. As part of its annual report, each state agency and appointing authority shall submit to the MCAD documentation of its actions and programs to ensure compliance with these provisions by all contractors, subcontractors and suppliers of goods and services.
Article V State Employment Services
5.1 All state agencies, including educational institutions, which provide employment referral or placement services to public or private employers shall accept job orders, refer for employment, test, classify, counsel, and train only on a nondiscriminatory basis. Said agencies shall refuse to fill any job order which has the effect of excluding any class of persons because of race, color, religion, creed, national origin, ancestry, language, age, handicap, or sex, unless a preference, limitation, or specification based upon age, sex or language is deemed, by the Massachusetts Commission Against Discrimination, to be a bona fide occupational qualification for employment, or in the case of handicap, an individual is unable to perform the bona fide responsibilities of the position.
5.2 All state agencies shall advise the MCAD promptly of any employers, employment agencies, or unions which said agencies have reason to believe are practicing unlawful discrimination.
5.3 State agencies shall assist public and private employers, unions, or other persons who, pursuant to a remedial affirmative action program, seek to broaden their recruitment programs by requesting the referral of qualified minority and female applicants. Each executive office, including, but not limited to, the Executive Office of Economic Affairs, shall direct agencies under their jurisdiction to fully utilize their expertise to the end that the agencies shall cause all persons (as defined in Chapter 151B of the Massachusetts General Laws) within their jurisdiction to initiate action to eliminate any practice or program which has an illegal discriminatory effect on minority or female persons within the population due to their race, sex, religion, creed, color, handicap, age, or national origin.
Article VI Massachusetts Commission Against Discrimination
6.1 In the performance of its responsibilities under this Executive Order, the Massachusetts Commission Against Discrimination shall have the full cooperation of all state agencies and appointing authorities. Said agencies and appointing authorities shall comply with the MCAD's requests for information concerning practices inconsistent with the state policy of nondiscrimination and affirmative action, and said agencies shall follow its lawful directives for giving effect to that policy.
6.2 Where appropriate, the MCAD shall promulgate guidelines, rules, and regulations aiding the implementation and enforcement of this Executive Order.
Article VII State Education, Counselling and Training Programs
7.1 All educational, counselling and vocational guidance programs, and all apprenticeship and on-the-job training programs of state agencies, or in which state agencies participate, shall be open to all qualified persons, without regard to race, color, religion, creed, national origin, age, sex, handicap, or ancestry. Such programs shall be conducted to encourage the fullest development of the interests, aptitudes, skills, and capacities of all students and trainees, with special attention to the problems of culturally deprived, educationally handicapped, or economically disadvantaged persons.
7.2 Those state agencies responsible for educational counselling and training programs shall take positive steps to ensure that all such programs are free from unlawful bias.
7.3 Expansion of the training opportunities under these programs shall also be encouraged with a view toward involving larger numbers of participants from those segments of the labor force where the need for upgrading levels of skill is greatest.
Article VIII Health Care
All private health care facilities, licensed or chartered by the state, including hospitals, nursing homes, convalescent homes, rest homes and clinics, shall be required to comply with the state policy of nondiscrimination in their patient admissions and in health care service as a condition of continued participation in any state program, or in any educational program licensed or accredited by the state, or to be eligible to receive any form of assistance.
Article IX Private Educational Institutions
All private educational institutions, licensed or chartered by the state, including professional, business and vocational training schools, shall, at the request of the MCAD, be required to show compliance with the state policy of nondiscrimination in their student admissions and other practices as a condition of continued participation in any state program or eligibility to receive any form of state assistance. However, these institutions may pursue their own otherwise lawful practices to promote diversity in their student admissions.
Article X State Licensing and Regulatory Agencies
10.1 State Agencies shall not discriminate by considering race, sex, color, religion, creed, national origin, handicap, or ancestry in granting, denying or revoking a license or charter, nor shall any person, corporation, or business firm which is licensed or chartered by the state unlawfully discriminate against, or segregate, any person on such grounds. All businesses licensed or chartered by the state shall operate on a nondiscriminatory basis, according equal treatment and access to their services to all persons.
10.2 Any licensee of a charter holder who fails to comply with this policy shall be subject to such disciplinary action as is consistent with law, and the legal authority and rules and regulations of the regulatory agency. State agencies which have the authority to grant, deny or revoke licenses or charters must actively utilize their authority to prevent any person, corporation or business firm from discriminating because of race, color, religion, creed, national origin, sex, age, handicap, or ancestry, or from participating in any practice which may have an illegal, discriminatory effect on women and minority persons within the population. The Massachusetts Commission Against Discrimination shall review and approve all procedures, rules and regulations used to implement this policy.
Article XI Housing Accommodation
11.1 No person, corporation or firm which is licensed or chartered by the state to engage in the business of selling, leasing, renting, financing, building or developing housing accommodations shall discriminate against any prospective buyer, lessee, or tenant because of race, color, religion, creed, national origin, ancestry, language, receipt of public assistance, membership in the armed forces, sex, age, marital status, children, handicap, or veterans status, nor shall any licensee or charter holder seek to promote the sale or lease of any residential property on the grounds that a person of particular racial, religious or ethnic background has established, or will establish, residence in the neighborhood.
11.2 Any real estate broker or salesman, corporate owner, lending institution, homebuilder, or developer who fails to comply with this policy shall be subject to such disciplinary action as is consistent with the legal authority, and rules and regulations of the appropriate licensing or regulatory agency, and of state statute.
11.3 There shall be no segregation or discrimination in any publicly assisted housing based upon race, color, sex, religion, creed, handicap, military or veterans status, language, or national origin. The prevention and elimination of racial, ethnic and religious segregation shall be an objective in all decisions involving the selection of new, publicly assisted housing sites, the development and execution of urban renewal plans, and the management and placement of tenants in public housing. The Department of Community Affairs, Massachusetts Housing Finance Agency, and the Massachusetts Commission Against Discrimination shall assist local authorities in promoting integrated housing in state supported or state supervised projects.
11.4 In dispersing financial assistance, including, but not limited to, loans and grants, the Executive Office of Communities and Development shall require grant recipients to undertake affirmative action designed to eliminate patterns and practices of discrimination in employment and housing, due to race, color, sex, ancestry, national origin, marital status, children, religion, and creed. At the request of the MCAD, the Executive Office of Communities and Development, prior to approving such grants, shall develop, subject to the review and revision by MCAD, rules, regulations and procedures necessary to implement and attain the goal of nondiscrimination and affirmative action by grant recipients.
Article XII Public Schools
12.1 By law, it is the policy of the Commonwealth of Massachusetts to require all school committees to adopt, as educational objectives, the promotion of equal and integrated education, and the correction of existing racial imbalance in the public schools. The prevention or elimination of racial imbalance shall be an objective in all decisions involving the drawing or altering of school attendance lines, and the selection of new school sites. The Department of Education shall also pursue a program of promoting fair employment practices for certified teachers, and shall periodically examine its publications and educational materials to assure that they are a realistic representation of the world's peoples and their contributions to history and culture.
12.2 The Board of Education shall develop and cause to be implemented rules and regulations designed to effectuate Chapter 622 of the Acts of 1971 (Massachusetts General Laws c. 76, Sec. 5), and shall ensure that the School Building Assistance Bureau requires that all new school buildings and facilities are designed so as to assure that male and female students are provided equal physical facilities.
12.3 The Massachusetts Commission Against Discrimination may intervene and act to develop affirmative action programs in order to remedy existing patterns or practices of discrimination which may have a disparate effect on the education of women and minority groups, as defined by the MCAD.
Article XIII State Financial Assistance
State agencies disbursing financial assistance, including, but not limited to, loans and grants, shall require recipient organizations and agencies to undertake affirmative action programs designed to eliminate patterns and practices of discrimination due to race, color, sex, or national origin, subject to the approval of the Massachusetts Commission Against Discrimination, for nonstate agency recipients, and the State Office of Affirmative Action for state agency recipients. At the request of the Massachusetts Commission Against Discrimination, state agencies disbursing such assistance shall develop, subject to review and revision by the MCAD, rules, regulations and procedures necessary to implement the goals of nondiscrimination and affirmative action.
Article XIV State Forms
All state agencies shall exclude from forms of request for information any item or inquiry expressing any limitation or specification as to race, color, creed, religion, national origin, sex, age, or handicap, unless the item or inquiry is expressly required by statute, is deemed by the Massachusetts Commission Against Discrimination to be a bona fide occupational qualification, or, in the case of handicap, is deemed, by the Department of Personnel Administration and/or State Office of Affirmative Action, to be a bona fide qualification. However, if such an item or inquiry is required in good faith for a proper purpose, and prior written permission for its use has been given to the agency or appointing authority by the MCAD, then such practice may be allowed.
Given at the Executive Chamber in Boston this twenty-fifth day of February in the year of our Lord one thousand nine hundred and eighty-three, and of the Independence of the United States of America two hundred and seven.
MICHAEL S. DUKAKIS
Commonwealth of Massachusetts
MICHAEL JOSEPH CONNOLLY
SECRETARY OF THE COMMONWEALTH