Affirmative Action: How It Applies To You

The term "affirmative action" as used in the United States, applies to three distinct areas: contract set-asides, college scholarships and enrollments, and employment issues. The negative reaction to affirmative action seems to have come from the media and politicians who erroneously think affirmative action only means quota systems and preferential treatment.

Let's discuss affirmative action as it applies to most private employers.

What is Affirmative Action?

Approved by President Johnson in 1964, affirmative action is part of Executive Order 11246. Federal contractors and subcontractors who employ 50 or more persons and have government contracts or second tier sub-contracts of $50,000 or more per year, must comply with Executive Order 11246 as well as an extensive and complicated set of implementing regulations. Organizations with 50 or more employees that sell and redeem U.S. Savings bonds or act as a depository for federal funds also are covered.

For women and persons of color who are considered by the Executive Order as disadvantaged by past discrimination, a pledge to not discriminate in the future is not enough to remedy past discrimination. Affirmative Action gives preference to groups traditionally discriminated against.

Is Affirmative Action Discrimination?

Affirmative Action PlansOn the surface, it appears that affirmative action is discriminatory because it appears to mandate employment decisions based on race or gender. However, to prove reverse discrimination, a claimant must prove that a) he applied for and was qualified for the job; b) he was rejected for the job; and, c) the job was filled by a female or minority group member. Once the claimant raises a suggestion of discrimination, the employer must come forward with a legitimate nondiscriminatory reason for the decision. A bona fide affirmative action plan (AAP) has been deemed such a nondiscriminatory reason.

An AAP is bona fide if it is substantially related to its remedial purpose. The remedial purpose of the AAP is acceptable if it is 1) designed to result in a balance that approximates what would have been obtained, absent past discrimination; 2) endures only so long as there is an imbalance; 3) does not result in hiring unqualified applicants; and, 4) does not completely bar nonminorities. In addition to creating a bona fide AAP document, the employer must implement its program.

Why Should I Take Affirmative Action?

First, affirmative action planning forces an employer into a systematic structure that focuses on job qualifications. To avoid illegal discrimination and take affirmative action, an employer must carefully review an applicant's qualifications against a job's requirements. This functional, skills-oriented analysis results in a better match between position and employee. The result is that affirmative action planning improves the overall quality of the employer's work force by improving the process of employee acquisition.

Second, affirmative action allows the employer to use a broader range of employees. The benefits of this broader range become obvious if you consider one of the goals of human resources - the acquisition and ongoing maintenance of the highest quality work force. If you limit your organization to a certain group of employees, that is white males, then you fail to compete effectively for your share of the highest quality workers. High quality workers come in all colors and genders.

Third, the greater the diversity of employees, the greater the diversity of ideas. In a world where change is now the only constant, organizations need employees who will supply a richly varied input.

Fourth, affirmative action is the law. If your organization falls under the requirements for Affirmative Action, your organization may receive a mandate from the Office of Federal Contract Compliance Programs (OFCCP) to review the organization's AAP. The organization is given 30 days to deliver its AAP to OFCCP or show cause why enforcement proceedings should not be taken. Organizations that are not in compliance will most likely receive a Conciliation Agreement in which OFCCP mandates the actions the organization will take to address the non-compliance and requires detailed reports be submitted for at least one year. In addition, if OFCCP finds evidence of discrimination in hiring, promotion, termination or compensation, the organization will be required to redress the inequities and to provide relief for the victims which may include hiring the person discriminated against, paying 2 years back-pay plus interest, etc.

What the Law Requires of Private Employers

Employers who meet the criteria noted earlier are required to develop affirmative action plans for women and minorities, individuals with disabilities, and covered veterans and to update these plans annually. It is good business to do so.

If you have a question regarding your affirmative action plan or need help in completing your affirmative action plan, contact us. We develop affirmative action plans (AAPs) for organizations of all sizes in all industries located in the United States. We work with you to properly organize and report the data and develop affirmative action plans required by the OFCCP (Office of Federal Contract Compliance Programs). AAPs developed by Fox Human Resource Associates have sailed through OFCCP compliance reviews saving our clients time and aggravation.

Copyright 2004 Cynthia C. Fox. All rights reserved

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