Elements of Affirmative Action

Affirmative Action as it applies to the public sector and private sector employers, and how it interacts with the Title VII requirements of Equal Employment Opportunity. “Affirmative Action law makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business. (EEOC, 2010).”

“Affirmative Action addresses discrimination for women, minorities and individuals with disabilities. “The Civil Rights Act prohibits employment discrimination to individuals based on race, color, religion, gender, and national origin (Bennett-Alexander & Hartman, 2004)”. Affirmative Action also applies to public sector and private sector employers. Managers with positions available hire a friend or family-member, who lacks skills the job requires. Subsequently, affirmative action was implemented to have standards in place for the new hire to adequately fit the position. Affirmative Action and Title VII requirements of Equal Employment Opportunity interact with each other because efforts of the plan are displayed in the programs. The objectives of the two are to have a proactive plan to identify, recruit, and promote women, minorities and individuals with disabilities. To offset past discrimination practices and ensure that the individual that is being hired for the position is qualified affirmative action plans and programs have been enforced” (EEOC).

“In employment, affirmative action may also be known as employment equity. Affirmative action requires that institutions increase hiring and promotion of candidates of mandated groups. (Rubenfeld, 1997, p. 429).”

What employers are subject to affirmative action plans and why?

“The Affirmative Action Plan (AAP) consists of statistical analyses of the employer’s “underutilization” of individuals from certain protected classes and includes the steps that will be taken to improve their representation in the employer’s workforce. Separate AAPs must be created for women and minorities, Vietnam era and certain other veterans, and disabled individuals. Although the plan must be written each year, it does not have to be filed with the Office of Federal Contract Compliance Programs (the agency that oversees the contracts) until an audit is conducted (EEOC, 2010).”

Voluntary Plans

“Some employers adopt voluntary affirmative action programs in order to remedy past adverse impact against particular protected classes. For example, an employer may implement a plan to encourage more women to apply for a job category traditionally dominated by men. However, any voluntary program must be narrowly tailored in time and scope so that it remedies past discrimination only. Plans that exceed this scope may expose the employer to potential liability for reverse discrimination.”

“For example, in Taxman v. Piscataway Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996), the court determined that a school board’s voluntary affirmative action plan violated Title VII. The plan included layoffs for nonminority teachers whenever the board noted a racial imbalance, and it was designed to promote diversity rather than remedy past discrimination. Similarly, in Dallas Fire Fighters Ass’n v. City of Dallas, Tex., 150 F.3d 438 (5th Cir. 1998), cert. denied, 526 U.S. 1038 (1999), the court found that a fire department’s voluntary affirmative action plan giving promotions based on race and gender was illegal because there was no significant evidence of past discrimination that the plan was designed to remedy

“An affirmative action plan must be developed within 120 days from the commencement of the covered contract and must be updated annually. (See 41 C.F.R. §60-2.1(c).) The plan generally should include:

1. An organizational profile (that generally may be based on the contractor’s organizational chart)”.

2. A job group analysis that compares jobs with similar content, wage rates, and opportunities.

3. An analysis of the placement of incumbents (current employees) in job groups, stating the percentage of minorities and women in each job group.

4. A determination of availability of qualified minorities or women in the area available for employment in a given job group.

5. A comparison of incumbents (current employees) to available qualified minorities and women.

6. Placement goals for particular job groups.

7. A designated person responsible for the implementation of the program.

8. In-depth analyses of problem areas in the contractor’s employment process.

9. Action-oriented programs to correct any problems areas identified and to attain established goals and objectives.”

10. An internal audit and reporting system that periodically measures the effectiveness of the affirmative action plan. (See, e.g., 41 C.F.R. §§60-2.10 to 60-2.17.).”

“Many states also have AAP requirements for state contractors.

Employers generally implement formal affirmative action plans in three circumstances: (1) as a condition of doing business with the federal government; (2) as a remedy for discrimination, ordered by a court; and (3) as a voluntary remedy for past patterns of discrimination. Each of these situations is discussed below.
Court-Ordered Plans

Courts may require employers to adopt affirmative action plans as a remedy for discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). Court-ordered affirmative action is an appropriate remedy in cases involving “foot-dragging, egregious noncompliance, or widespread and persistent discrimination.” For example, in Shuford v. Alabama State Bd. of Educ., 846 F. Supp. 1511 (M.D. Ala. 1994), the court determined that an affirmative action plan was the proper remedy for race discrimination by a school board that failed to desegregate its faculty and did not develop objective hiring standards although it was ordered to do so 20 years earlier.

The affirmative action order must be narrowly tailored to the government’s compelling interests. Accordingly, the court-ordered plan generally:

1. May not be overly burdensome on third parties (for example by requiring discharge or layoffs).” (Personal Policy Incorporated, 2010)

2. May not require the hiring or promotion of unqualified individuals

3. Must be temporary, lasting only until the plan’s goals are achieved.

“Affirmative Action under the Civil Rights Act of 1964, the federal government requires certain businesses and educational institutions that receive federal funds to develop affirmative action programs. Such policies are enforced and monitored by both The Office of Federal Contract Compliance and The Equal Employment Opportunity Commission (EEOC) (Lazear 37).
The most noteworthy criticism of affirmative action is that of the white male population who insists that such programs are forms of “reverse discrimination”. In contrast to their view, the United States Commission on Civil Rights argued until 1983 that only if society were operating fairly would measures that take race, sex, and national origin into account is “preferential treatment.” After the commission on civil rights was reorganized in late 1983, however, it took the opposite position. By January of 1984, it approved a statement that “racial preferences merely constitute another form of unjustified discrimination”. In recent years, however, affirmative action has continued to grow, and the number of controversies surrounding its existence is consistently augmented.

In 1978, in University of California Regents v. Bakke, the U.S. Supreme Court held (5-4) that fixed quotas may not be set for places for minority applicants for medical school if white applicants are denied a chance to compete for those places. The court, however, did say that professional schools may consider race as a factor in making decisions on admissions. More recently than the Regents decision, in United Steelworkers of America V. Weber (1979) and Fullilove v. Klutznick (1980), the court continued to hold for affirmative action.”

In the early days of EEO, employers merely counted the numbers of applicants and employees in racial and gender categories. EEO was part of a function called personnel record keeping. In 1970 and 1971, stronger legislation mandated annual reports to the federal Equal Employment Opportunity Commission (EEOC). This guarantees employment based on race, ethnicity, or gender. The affirmative action program gives equal consideration to individuals from a different race, ethnicity, or gender, but not one of these factors may be the only factor used to determine an individual’s qualifications for any job. The biggest dispute of the program is the belief that the policy allows less qualified candidates to progress due to different standards for minorities and non-minorities.” People need to realize that affirmative action gives balance in the workplace so that everyone from different ethnic backgrounds would be represented in today’s diverse society.

There are few social policy issues that gauge the racial and division among the American people than the affirmative action. Affirmative Action is a term referring to the laws and social policies intended to resolve discrimination that limits the opportunities of people regardless of their race, color, religion, gender, and national origin. Supporters and opponents of affirmative action hold strong to their beliefs and constantly attack the opposing viewpoints.

Advocates believe that affirmative action overcomes discrimination, gives qualified minorities a chance to compete on equal footing whites, and provides them with the same opportunities. Opponents claim that affirmative action puts unskilled minorities The Development of EEO and Affirmative Action. (EEOC).”

“Generally, a voluntary affirmative action program is permissible if:

1. The purpose is to remedy old patterns of discrimination.

2. The program does not unnecessarily infringe upon the rights of employees not included in the program (for example, it does not require the termination of employees not covered by the program to be replaced by covered employees).

3. The program does not prevent advancement by employees not covered under the program.

4. The program is a temporary measure to remedy past discrimination rather than designed to ensure a continuing balance in the workforce.