98-o0002

OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON

WASHINGTON DC 20301-3000

February 11, 1998

MEMORANDUM FOR DIRECTORS OF DEFENSE AGENCIES DEPUTY FOR ACQUISITION AND BUSINESS MANAGEMENT, ASN(RD&A) /ABM DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE (CONTRACTING), SAF/AQC

SUBJECT: Class Deviation---Equal Employment Opportunity

Effective immediately, all military departments and defense agencies shall deviate from the requirements of Federal Acquisition Regulation (FAR) Subpart 22.8, Equal Employment Opportunity, and the clauses and provisions prescribed therein. Specifically, contracting officers shall implement the attached FAR Subpart 22.8, and shall use the attached clauses and provisions instead of the clauses arid provisions at FAR 52.212-3 and 52.222-21 through 52.222-24 arid 52.222-26 through 52.222-29.

This class deviation implements a Department of Labor final rule that was published in the Federal Re~ister on August 19, 1997 (62 FR 44174). In part, the final rule eliminates the requirement to obtain a certification of nonsegregated facilities from prospective contractors; increases from $1 million to $10 million the threshold for1 and amends the timing of, obtaining from the Office of Federal Contract Compliance Programs preaward compliance clearance of prospective contractors and subcontractors; and eliminates the requirement for postaward compliance clearance of subcontractors.

This class deviation supersedes class deviation number 97-O0008, and is approved until December 31, 1998, or until the FAR is revised, whichever occurs first.

Eleanor R. Spector

Director, Defense Procurement

Attachment

22.801 Deviation-Definitions.

[As used in this subpart--]

"Affirmative action program," [ ] means a contractor's program that complies with Department of Labor regulations to ensure equal opportunity in employment to minorities and women.

[_Compliance evaluation_ means any one or combination of actions that the Office of Federal Contract Compliance Programs (OFCCP) may take to examine a Federal Contractor_s compliance with one or more of the requirements of E.O. 11246]

[ ]

[ ]

"Contractor," [ ] includes the terms "prime contractor" and "subcontractor".

[_Deputy Assistant Secretary,_ ] means the [Deputy Assistant Secretary for] Federal Contract Compliance Programs [ ], United States Department of Labor [or a designee].

"Equal Opportunity clause," [ ] means the clause at 52.222-26, Equal Opportunity, prescribed in 22.810(e).

"E[.]O[.] 11246," [ ] means Parts II and IV of Executive Order 11246, September 24, 1965 (30 FR 12319), and any Executive Order amending or superseding this Order (see 22.802). This term specifically includes the Equal Opportunity clause at 52.222-26, and the rules, regulations, and orders issued pursuant to E[.]O[.] 11246 by the Secretary of Labor or a designee.

[ ]

"Prime contractor," as used in this subpart, means any person who holds, or has held, a Government contract subject to E[.]O[.] 11246.

"Recruiting and training agency," [ ] means any person who refers workers to any contractor [ ] or provides or supervises apprenticeship or training for employment by any contractor [ ].

"Site of construction," [ ] means the general physical location of any building, highway, or other change or improvement to real property that is undergoing con-struction, rehabilitation, alteration, conversion, extension, demolition, or repair; and any temporary location or facility at which a contractor, subcontractor, or other participating party meets a demand or performs a function relating to a Government contract or subcontract.

"Subcontract," [ ] means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee)--

(a) For the furnishing of supplies or services or for use of real or personal property, including lease arrangements that, in whole or in part, is necessary to the performance of any one or more [ ] contracts; or

(b) Under which any portion of the contractor's obligation under any one or more [ ] contracts is performed, undertaken, or assumed.

"Subcontractor,"[ ] means any person who holds, or has held, a subcontract subject to E[.]O[.] 11246. The term "first-tier subcontractor" means a subcontractor holding a subcontract with a prime contractor.

"United States," [ ] means the States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, [Guam, American Samoa, the Commonwealth of the Northern Mariana Islands and Wake Island. ]

22.802 General.

(a) Executive Order 11246, as amended, sets forth the Equal Opportunity clause and requires that all [ ] agencies--

(b) No contract or modification involving new acquisition shall be entered into, and no subcontract shall be approved by a contracting officer, with a person who has been found ineligible by the [Deputy Assistant Secretary] for reasons of noncompliance with the requirements of E[.]O[.] 11246.

(c) No contracting officer or contractor shall contract for supplies or services in a manner so as to avoid applicability of the requirements of E[.]O[.] 11246.

(d) Contractor disputes related to compliance with its obligation shall be handled according to the rules, regulations, and relevant orders of the Secretary of Labor (see 41 CFR 60-1.1).

22.803 Responsibilities.

(b) The Secretary of Labor has delegated authority and assigned responsibility to the [Deputy Assistant Secretary] for carrying out the responsibilities assigned to the Secretary by E[.]O[.] 11246, except for the issuance of rules and regulations of a general nature.

(c) The head of each agency is responsible for ensuring that the requirements of this subpart are carried out within the agency, and for cooperating with and assisting the OFCCP in fulfilling its responsibilities.

(d) In the event the applicability of E[.]O[.] 11246 and implementing regulations is questioned, the contracting officer shall forward the matter [to the Department of Labor (DoL)] through agency channels for resolution.

22.804 Affirmative action programs.

22.804-1 Nonconstruction.

Except as provided in 22.807, each nonconstruction prime contractor and each subcontractor with 50 or more employees and (a) a contract or subcontract of $50,000 or more or (b) Government bills of lading that in any 12-month period, total, or can reasonably be expected to total, $50,000 or more, is required to develop a written affirmative action program for each of its establishments within 120 days from the commencement of its first such Government contract, subcontract, or Government bill of lading.

22.804-2 Construction.

(a) Construction contractors that hold a nonexempt (see 22.807) Government construction contract are required to meet (1) the contract terms and conditions citing affirmative action requirements applicable to covered geographical areas or projects and (2) applicable requirements of 41 CFR 60-1 and 60-4.

(b) Each [ ] agency shall maintain a listing of covered geographical areas that are subject to affirmative action requirements that specify goals for minorities and women in covered construction trades. Information concerning, and additions to, this listing will be provided to the principally affected contracting officers in accordance with agency procedures. Any contracting officer contemplating a construction project in excess of $10,000 within a geographic area not known to be covered by specific affirmative action goals shall request instructions on the most current information from the OFCCP regional office, or as otherwise specified in agency regulations, before issuing the solicitation.

(c) Contracting officers shall give written notice to the OFCCP regional office within 10 working days of award of a construction contract subject to these affirmative action requirements. The notification shall include the name, address, and telephone number of the contractor; employer identification number; dollar amount of the contract; estimated starting and completion dates of the contract; the contract number; and the geographical area in which the contract is to be performed. When requested by the OFCCP regional office, the contracting officer shall arrange a conference among contractor, contracting activity, and compliance personnel to discuss the contractor's compliance responsibilities.

22.805 Procedures.

(a) Preaward clearances for contracts and subcontracts of $1[0] million or more (excluding construction). (1) Except as provided in [paragraph] (a)(7) [of this section], if the estimated amount of the contract[ or] subcontract, [ is $10] million or more, the contracting officer shall request the appropriate OFCCP regional office to determine whether a contractor is awardable before--

(8) If, under the provisions of [paragraph] (a)(7) [of this section], a postaward review determines the contractor to be nonawardable, the [Deputy Assistant Secretary], may authorize the use of the enforcement procedures at 22.809 against the noncomplying contractor.

(b) Furnishing posters. The contracting officer shall furnish to the contractor appropriate quantities of the poster entitled "Equal [Employment] Opportunity Is The Law." These shall be obtained in accordance with agency procedures.

.

22.806 Inquiries.

(a) An inquiry from a contractor regarding status of its compliance with E[.]O[.] 11246, or rights of appeal to any of the actions in 22.809 shall be referred to the OFCCP regional office.

(b) Labor union inquiries regarding the revision of a collective bargaining agreement in order to comply with E[.]O[.] 11246, shall be referred to the [Deputy Assistant Secretary].

22.807 Exemptions.

(a) Under the following exemptions, all or part of the requirements of E[.]O[.] 11246 may be excluded from a contract subject to E[.]O[.] 11246:

(b) The following exemptions apply even though a contract or subcontract contains the Equal Opportunity clause:

(c) To request an exemption under subparagraphs (a)(1), (a)(2), or (b)(5), the contracting officer shall submit, under agency procedure, a detailed justification for omitting all, or part of, the requirements of E[.]O[.] 11246. Requests for exemptions under subparagraphs (a)(2) or (b)(5) above shall be submitted to the [Deputy Assistant Secretary] for approval.

(d) The [Deputy Assistant Secretary] may withdraw the exemption for a specific contract, or group of contracts, if the [Deputy Assistant Secretary] deems that such action is necessary and appropriate to achieve the purposes of E[.]O[.] 11246. Such withdrawal shall not apply--

.

22.808 Complaints.

Complaints received by the contracting officer alleging violation of the requirements of E[.]O[.] 11246 shall be referred immediately to the OFCCP regional office. The complainant shall be advised in writing of the referral. The contractor that is the subject of a complaint shall not be advised in any manner or for any reason of the complainant's name, the nature of the complaint, or the fact that the complaint was received.

22.809 Enforcement.

Upon the written direction of the [Deputy Assistant Secrettary], one or more of the following actions, as well as administrative sanctions and penalties, may be exercised against contractors found to be in violation of E[.]O[.] 11246, the regulations of the Secretary of Labor, or the applicable contract clauses:

(b) Cancellation, termination, or suspension of the contractor's contracts or portion thereof.

(c) Debarment from future Government contracts, or extensions or modifications of existing contracts, until the contractor has established and carried out personnel and employment policies in compliance with E[.]O[.] 11246 and the regulations of the Secretary of Labor.

(d) Referral by the [Deputy Assistant Secretary] of any matter arising under E[.]O[.] 11246 to the Department of Justice or to the Equal Employment Opportunity Commission (EEOC) for the institution of appropriate civil or criminal proceedings.

22.810 Solicitation provisions and contract clauses.

(a) The contracting officer shall insert the following [ ] in solicitations when a contract is

contemplated that will include the clause at 52.222-26, Equal Opportunity:

(b) The contracting officer shall insert the provision at 52.222-23, Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity [for Construction], in solicitations for construction when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity, and the amount of the contract is expected to be in excess of $10,000.

(c) The contracting officer shall insert the provision at 52.222-24, Preaward On-Site Equal Opportunity Compliance [Evaluation], in solicitations, other than those for construction, when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity, and the amount of the contract is expected to be for $1[0] million or more.

(d) The contracting officer shall insert the provision at 52.222-25, Affirmative Action Compliance, in solicitations, other than those for construction, when a contract is contemplated that will include the clause at 52.222-26, Equal Opportunity.

(e) The contracting officer shall insert the clause at 52.222-26, Equal Opportunity, in solicitations and contracts (see 22.802) unless [the contract is exempt from all of] from(SIC) the requirements of E[.]O[.] 11246 (see 22.807(a)). If [the contract is exempt from] one or more, but not all, of the [ ] requirements of E[.]O[.] 11246, the contracting officer shall use the basic clause with its Alternate I.

(f) The contracting officer shall insert the clause at 52.222-27, Affirmative Action Compliance Requirements for Construction, in solicitations and contracts for construction that will include the clause at 52.222-26, Equal Opportunity, and the amount of the contract is expected to be in excess of $10,000.

[ ]

([g]) The contracting officer shall insert the clause at 52.222-29, Notification of Visa Denial, in contracts that will include the clause at 52.222-26, Equal Opportunity, if the contractor is required to perform in or on behalf of a foreign country.

52.212-3 Deviation-Offeror Representations and Certifications--Commercial Items.

As prescribed in 12.301(b)(2), insert the following provision:

OFFEROR REPRESENTATIONS AND CERTIFICATIONS--

COMMERCIAL ITEMS (JAN 1997)

[(DEVIATION)]

(A) *****

(C) *****

(d) Certifications and representations required to implement provisions of Executive Order 11246--(1) [ ] Previous Contracts and Compliance. The offeror represents that--

52.222-21[Prohibition of S]egregated Facilities.

As prescribed in 22.810(a)(1), insert the following [clause]:

[PROHIBITION OF ]SEGREGATED FACILITIES (APR 1984)

[(DEVIATION)]

(a) "Segregated facilities," as used in this [clause], means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, [sex] or national origin because of [ written or oral policies, or employee custom]. [The term does not include separate or single-user rest rooms and necessary dressing or sleeping areas, which shall be provided to assure privace between the sexes.]

(b) [ The Contractor agrees] that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The [Contractor] agrees that a breach of this [clause] is a violation of the Equal Opportunity clause in [this] contract.

(c) The [Contractor shall include this clause in every subcontract that contains the clause of this contract entitled _Equal Opportunity._ ]

(End of [clause])

52.222-22 Previous Contracts and Compliance Reports.

As prescribed in 22.810(a)(2), insert the following provision [ ]:

PREVIOUS CONTRACTS AND COMPLIANCE REPORTS (APR 1984)

[(DEVIATION)]

The offeror represents that--

(a) It [ ] has, [ ] has not participated in a previous contract or subcontract subject [ ] to the Equal Opportunity clause of this solicitation[ ];

(b) It [ ] has, [ ] has not, filed all required compliance reports; and

(c) Representations indicating submission of required compliance reports, signed by proposed subcontractors, will be obtained before subcontract awards.

(End of provision)

52.222-23 Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity [for Construction].

As prescribed in 22.810(b), insert the following provision[ ]:

NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL

EMPLOYMENT OPPORTUNITY [FOR CONSTRUCTION] (APR 1984)

[(DEVIATION)]

(a) The offeror's attention is called to the Equal Opportunity clause and the Affirmative Action Compliance Requirements for Construction clause of this solicitation.

(b) The goals for minority and female participation, expressed in percentage terms for the Contractor's aggregate workforce in each trade on all construction work in the covered area, are as follows:

Goals for minority participa- Goals for female participa-

tion for each trade tion for each trade

[Contracting Officer shall [Contracting Officer shall

insert goals] insert goals]

These goals are applicable to all the Contractor's construction work performed in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, the Contractor shall apply the goals established for the geographical area where the work is actually performed. Goals are published periodically in the Federal Register in notice form, and these notices may be obtained from any Office of Federal Contract Compliance Programs office.

(c) The Contractor's compliance with Executive Order 11246, as amended, and the regulations in 41 CFR 60-4 shall be based on (1) its implementation of the Equal Opportunity clause, (2) specific affirmative action obligations required by the clause entitled "Affirmative Action Compliance Requirements for Construction," and (3) its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract, and in each trade. The Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor, or from project to project, for the sole purpose of meeting the Contractor's goals shall be a violation of the contract, Executive Order 11246, as amended, and the regulations in 41 CFR 60-4. Compliance with the goals will be measured against the total work hours performed.

(d) The Contractor shall provide written notification to the [Deputy Assistant Secretary for] Federal Contract Compliance Programs, within 10 working days following award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the--

(e) As used in this Notice, and in any contract resulting from this solicitation, the "covered area" is ................ [Contracting Officer shall insert description of the geographical areas where the contract is to be performed, giving the State, county, and city].

(End of provision)

52.222-24 Preaward On-Site Equal Opportunity Compliance [Evaluation].

As prescribed in 22.810(c), insert the following provision [ ]:

PREAWARD ON-SITE EQUAL OPPORTUNITY COMPLIANCE [EVALUATION]

(APR 1984) [(DEVIATION)]

An award in the amount of $1[0] million or more will not be made under this solicitation unless the offeror and each of its known first-tier subcontractors (to whom it intends to award a subcontract of $1[0] million or more) are found, on the basis of a compliance [evaluation], to be able to comply with the provisions of the Equal Opportunity clause of this solicitation. [If the offeror_s proposal is for a contract of $10 million or more, each of the offeror and its know first-tier subcontractors to whom the offeror intends to award a subcontract of $10 million or more shall be subject to a compliance evaluation, unless within the preceding 24 months the Office of Federal Contract Compliance Clearance has conducted a compliance evaluation and found them to be in compliance with Executive Order 11246.]

(End of provision)

52.222-25 Affirmative Action Compliance.

As prescribed in 22.810(d), insert the following provision[ ]:

AFFIRMATIVE ACTION COMPLIANCE (APR 1984)

The offeror represents that (a) it [ ] has developed and has on file, [ ] has not developed and does not have on file, at each establishment, affirmative action programs required by the rules and regulations of the Secretary of Labor (41 CFR 60-1 and 60-2), or (b) it [ ] has not previously had contracts subject to the written affirmative action programs requirement of the rules and regulations of the Secretary of Labor.

(End of provision)

52.222-26 Equal Opportunity.

As prescribed in 22.810(e), insert the following clause[ ]:

EQUAL OPPORTUNITY (APR 1984) [(DEVIATION)]

(a) If, during any 12-month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with subparagraphs (b)(1) through (11) below. Upon request, the Contractor shall provide information necessary to determine the applicability of this clause.

(b) During performing this contract, the Contractor agrees as follows:

(c) Notwithstanding any other clause in this contract, disputes relative to this clause will be governed by the procedures in 41 CFR 60-1.1.

(End of clause)

Alternate I (APR 1984). [As prescribed in 22.810(e),] add the following as a preamble to the clause:

Notice. The following terms of this clause are waived for this contract: ..........[Contracting Officer shall list terms].

[(End of Alternate I)]

52.222-27 Affirmative Action Compliance Requirements for Construction.

As prescribed in 22.810(f), insert the following clause[ ]:

AFFIRMATIVE ACTION COMPLIANCE REQUIREMENTS FOR CONSTRUCTION

(APR 1984)[(DEVIATION)]

(a) Definitions. "Covered area," as used in this clause, means the geographical area described in the solicitation for this contract.

[_Deputy Assistant Secretary,_] as used in this clause, means [Deputy Assistant Secretary for] Federal Contract Compliance Programs[ ], United States Department of Labor [or a designee].

"Employer identification number," as used in this clause, means the Federal Social Security number used on the employer's quarterly federal tax return, U.S. Treasury Department Form 941.

"Minority," as used in this clause, means--

(b) If the Contractor, or a subcontractor at any tier, subcontracts a portion of the work involving any construction trade, each such subcontract in excess of $10,000 shall include this clause and the Notice containing the goals for minority and female participation stated in the solicitation for this contract.

(c) If the Contractor is participating in a Hometown Plan (41 CFR 60-4) approved by the U.S. Department of Labor in a covered area, either individually or through an association, its affirmative action obligations on all work in the plan area (including goals) shall comply with the plan for those trades that have unions participating in the plan. Contractors must be able to demonstrate participation in, and compliance with, the provisions of the plan. Each Contractor or subcontractor participating in an approved plan is also required to comply with its obligations under the Equal Opportunity clause, and to make a good faith effort to achieve each goal under the plan in each trade in which it has employees. The overall good-faith performance by other Contractors or subcontractors toward a goal in an approved plan does not excuse any Contractor's or subcontractor's failure to make good-faith efforts to achieve the plan's goals.

(d) The Contractor shall implement the affirmative action procedures in subparagraphs (g)(1) through (16) of this clause. The goals stated in the solicitation for this contract are expressed as percentages of the total hours of employment and training of minority and female utilization that the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for the geographical area where that work is actually performed. The Contractor is expected to make substantially uniform progress toward its goals in each craft.

(e) Neither the terms and conditions of any collective bargaining agreement, nor the failure by a union with which the Contractor has a collective bargaining agreement, to refer minorities or women shall excuse the Contractor's obligations under this clause, Executive Order 11246, as amended, or the regulations thereunder.

(f) In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.

(g) The Contractor shall take affirmative action to ensure equal employment opportunity. The evaluation of the Contractor's compliance with this clause shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully and implement affirmative action steps at least as extensive as the following:

(h) The Contractor is encouraged to participate in voluntary associations that may assist in fulfilling one or more of the affirmative action obligations contained in subparagraphs (g)(1) through (16). The efforts of a contractor association, joint contractor-union, contractor-community, or similar group of which the contractor is a member and participant may be asserted as fulfilling one or more of its obligations under subparagraphs (g)(1) through (16), provided the Contractor--

(i) A single goal for minorities and a separate single goal for women shall be established. The Contractor is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and nonminority. Consequently, the Contractor may be in violation of Executive Order 11246, as amended, if a particular group is employed in a substantially disparate manner.

(j) The Contractor shall not use goals or affirmative action standards to discriminate against any person because of race, color, religion, sex, or national origin.

(k) The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts under Executive Order 11246, as amended.

(l) The Contractor shall carry out such sanctions and penalties for violation of this clause and of the Equal Opportunity clause, including suspension, termination, and cancellation of existing subcontracts, as may be imposed or ordered under Executive Order 11246, as amended, and its implementing regulations, by the OFCCP. Any failure to carry out these sanctions and penalties as ordered shall be a violation of this clause and Executive Order 11246, as amended.

(m) The Contractor in fulfilling its obligations under this clause shall implement affirmative action procedures at least as extensive as those prescribed in paragraph (g) above, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of Executive Order 11246, as amended, the implementing regulations, or this clause, the [Deputy Assistant Secretary] shall take action as prescribed in 41 CFR 60-4.8.

(n) The Contractor shall designate a responsible official to--

(o) Nothing contained herein shall be construed as a limitation upon the application of other laws that establish different standards of compliance or upon the requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).

(End of clause)

52.222-28 [Reserved]

52.222-29 Notification of Visa Denial.

As prescribed in 22.810([g]), insert the following clause[ ]:

NOTIFICATION OF VISA DENIAL (APR 1984) [(DEVIATION)]

It is a violation of Executive Order 11246, as amended, for a Contractor to refuse to employ any applicant or not to assign any person hired in the United States, on the basis that the individual's race, color, religion, sex, or national origin is not compatible with the policies of the country where the work is to be performed or for whom the work will be performed (41 CFR 60-1.10). The Contractor agrees to notify the [U.S.] Department of State, [Assistant Secretary, Bureau of Political-Military Affairs (PM), 2201 C Street NW, Room 7325,] Washington, DC. [20520], and the [Deputy Assistant Secretary for] Federal Contract Compliance Programs, when it has knowledge of any employee or potential employee being denied an entry visa to a country in which the Contractor is required to perform this contract, and it believes the denial is attributable to the race, color, religion, sex, or national origin of the employee or potential employee.

(End of clause)