Strike Two: FCC's EEO Rules Repealed for the Second Time in Three Years
 
July 31, 2001
 
Charles Naftalin - Washington

In January 2001, the United States Court of Appeals for the District of Columbia Circuit vacated the FCC's EEO rules, which had been in effect only since April 2000. The FCC suspended the EEO rules promptly after the court's decision, pending further judicial review. Those rules, sometimes know as the "Option A/B Rules," had been devised and put into place in response to an April 1998, decision of the same court, which invalidated an earlier set of EEO requirements. The EEO rules were applicable to broadcast stations and cable television systems.

Background

For many years prior to 1998, the Commission's EEO rules had two primary components, recruitment obligations and employment reporting which resembled a "quota" system, with comparisons of station employment overall and in its "top four" job categories to employment of minorities and women in the local market. Both components included substantial record-keeping and reporting requirements. In large measure, the court in 1998 repealed the old EEO rules because of the quota-type system.

In April 2000, the FCC put the Option A/B Rules into effect. Those rules substantially increased the burden of EEO recruitment, record-keeping and reporting requirements beyond what had been in place. The Option A/B Rules applied to all stations or station groups with five or more employees, whether stand alone or commonly owned with shared staff. Each station's equal employment program had to be designed to "ensure equal opportunity and nondiscrimination in every aspect of station employment policy and practice." The elements included defining management responsibility for carrying out the program; informing employees and employee organizations of the station's EEO policies and program; communicating the station's policies and programs to recruitment sources; having a continuing internal program to eliminate all unlawful forms of prejudice or discrimination from personnel policies and practices and working conditions; and conducting continuing internal reviews to ensure that the station's job structure and employment practices ensure full equality of opportunity.

Stations had to follow specific recruitment procedures for all full-time job openings, except in the case of internal promotion, temporary positions or "exceptional circumstances." By June 1, 2000, all stations with five or more employees should have filed an "election" with the FCC, designating whether they would follow "Option A" or "Option B" recruitment procedures. Option A stations had to follow a set of explicit EEO recruitment practices very specifically set out in the FCC's rules. Option B stations had to design and follow their own set of recruitment practices and adhere to somewhat different record-keeping and reporting requirements than those that applied to Option A stations. The most important difference in the record-keeping and reporting requirements between the two groups was that Option B stations had to keep records and include in their periodic EEO reports information concerning the gender and race and/or ethnicity of all job applicants. Option A stations also had substantial record-keeping and reporting obligations, and had to match job applicants with recruitment sources, but, unlike Option B stations, Option A stations did not have to track gender/race/ethnicity information for applicants.

The Decision

In its January 2001, decision, the court found the Option B procedures to be unconstitutional. The court decided that Option B pressured broadcasters to recruit minorities and women, without any underlying finding of actual prejudice, that the Option B procedures were not narrowly tailored to achieve appropriate purposes, and that they ran afoul of equal protection. The court did not object to the Option A procedures. However, it found the entire Option A and B EEO schemes so intertwined that it vacated the whole program, rather than repealing Option B alone and permitting Option A to continue.

A number of groups have asked the court to reconsider its decision and reinstate all of the Option A/B Rules. In an interesting move, the FCC asked only that the court reconsider its decision to invalidate the Option A program, in effect conceding that Option B is unlawful. As of this writing, the court has not acted upon any of these requests, and so no Commission employment practices, record-keeping or reporting obligations are in effect. This includes no requirement to prepare and file (with the FCC or in local public inspection files) the Broadcast and Cable Initial Election Statement, the annual EEO Public File Report, the Annual Employment Report (FCC Form 395-B), the Statement of Compliance (FCC Form 397), the Broadcast Equal Opportunity Program Report (Form 396, part of renewal applications), or the Broadcast Equal Opportunity Program Report (Form 396-A, part of other applications).

Now What?

During the period of time that the EEO rules are suspended, broadcasters have no employment obligations imposed by the FCC. All other state and federal employment requirements remain in place and should be observed scrupulously.

Affirmative action is not dead. Broad-reaching, diligent and comprehensive recruitment programs are not only legally sound, they make good business sense and have ethical merit. It is in the best interests of broadcasters to have as large and diverse an applicant pool as reasonably possible. It is highly advisable for all stations to observe a thorough and competent version of Option A practices, especially in light of the clear signals from the court and the FCC that Option A, or some variation of it, will be put into effect at some time.

Therefore, broadcast stations should circulate notices of job openings to as large a number of organizations as feasible, especially including organizations which may be of particular assistance to women and minorities, and ensure that such notices are sent out for all job openings, with the possible exceptions of jobs to be filled by internal promotion, part-time positions or emergencies. Organizations that have asked to be included in job notifications should be.

Stations should consider participation in employment outreach "initiatives" regularly, such as job fairs, internships, and participation in job banks. (Option A specifically required such participation twice in two years for stations with five to 10 full-time employees and four in two years for stations with more than 10 full-time employees).

Finally, and perhaps most importantly, stations should have an equal employment program designed to ensure equal opportunity and nondiscrimination in every aspect of station employment policy and practice. Such a program should be tailored to existing employment obligations under state and federal law, and it will be the foundation of the FCC employment rules that can be expected to be implemented at some point in the future.