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.

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" an 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.

EEOC Guidelines for an AAP

EEOC guidelines state that plans must contain three broad categories: a reasonable self-analysis, a reasonable basis for the AAP, and reasonable actions.

A reasonable self-analysis requires that employers evaluate whether its employment practices do, or tend to, exclude, disadvantage, restrict, or result in adverse impact or disparate treatment of previously excluded or protected groups, or leave uncorrected the effects of prior discrimination, and if so, determine why? The analysis should include demographics of a region and by job categories.

A reasonable basis for affirmative action requires underutilization. The latter means when the percentage of women or persons of color in one or more of an employer's job categories is smaller than the percentage of those with the necessary skills for that type of employment. The basis should include a comparison of the demographics of an existing workforce with those who have the requisite skills in a reasonable recruitment area. If the self-analysis establishes that there is underutilization by protected class, actions undertaken must be reasonable. Goals are necessary and must be reasonably attainable through a good faith effort. Preferences based on protected class are not permissible. Nor are quotas.

Blind adherence to quotas would provide the quickest path to correction. It would also risk reverse discrimination. Recommendations generally focus on expanding the recruitment pool to make opportunities known.

AAPs must have a projected end and cannot embrace a rapid, overnight effort at correction of a situation that likely developed over decades.

We will study AAPs in greater depth in a subsequent lesson. The focus in this lesson is pre-hire and recruitment activities: how a workforce comes together.