L03 Affirmative Action

The text defines affirmative action as “those actions appropriate to overcome the effects of past or present practices, policies or other barriers to equal employment opportunity.” How affirmative action plans (AAPs) are implemented is a much-embattled undertaking with employment opportunities sometimes dependent on the pipeline provided by colleges and universities.

When percentages, by protected class, of those employed versus those qualified for a position is suspect, an AAP can rectify the matter. When the percentages of qualified applicants, by protected class, are not in line with demographics of a region, the goal should be devised to increase representation – which is where colleges and universities can be instrumental. Let’s look at an example involving physicians in the U.S.

Racial Disparities Among U.S. Physicians

No amount of lawsuits or employer AAPs can remedy the disparities in the population of physicians in the U.S. Gender is not an issue as 61% are female. Other factors are as follows (2020 census):

Races of Physicians in the U.S.

Group	% of Overall Population	% of Physician Population
White	57.8%	64.7%
Asian	7.1%	18.6%
Hispanic	18.7%	9.1%
Black	12.1%	4.8%

Though our focus involves employer-initiated AAPs, the interplay between societal shortcomings and education is part of a solution. As most are aware, the Supreme Court will likely eliminate considerations of race or ethnicity by colleges. The argument is that an advantage to one based on protected class is necessarily a reduction of rights to another based on their protected class.

That would be a “safe” position that would survive whatever the Court does.

AAP Considerations

Basic requirements for employer-initiated AAPs include a formal, written plan devised to improve employment opportunities of groups that, historically, have been victims of discrimination: women, African Americans, Latinos, Native Americans, Asians, Pacific Islanders, disabled persons, and some veterans. Most plans are voluntary undertakings.

Employers that sell goods or services to the federal government worth at least $10,000 must have a non-discrimination clause in their contracts per Executive Order 11246. The Order requires that contractors comply with Title VII. Many states have like requirements.

Where EO 11246 provides goals above those already required is, when there are 50 or more employees and a contract worth at least $50,000, a written affirmative action plan must be developed. The EO also provides enhanced protections for veterans with service-connected disabilities, those who were in combat, and those who were discharged within the last 36 months.

Though most employer-initiated AAPs are voluntary undertakings, courts can order an AAP as a remedy. Some cases end with a settlement – a consent decree – where an employer agrees to develop and implement an AAP. In those cases, “punishing” and employer for past violations is one part of the remedy. In others, an AAP, is devised to prevent future violations and ameliorate damage that has already been done. In the next section, let’s look more into EEOC guidelines for writing and implementing an AAP.