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Editor's Note regarding citations used
in this article: References to "C.F.R." refer to the Code of Federal
Regulations, the official government publication for federal
regulations.
What is an Affirmative Action Plan
Federal Contract Requirements
Court-Ordered Plans
Voluntary
Plans
AAPs Require Planning, Expertise
Organizations that do business with the federal government or
receive federal government funds are required to implement formal
affirmative action plans. Still, some choose to do so voluntarily.
Find out below when employers must implement AAPs and what those
plans should address.
Some employers assume that they have to have
affirmative action
plans (AAPs) in place in order to comply with
federal equal
employment opportunity (EEO) laws. However, EEO laws typically only
prohibit unlawful discrimination against "protected classes" of
applicants and employees. (The term "protected classes" refers to
applicants and employees protected against discrimination by EEO
laws, for example because of their race, gender, age, disability,
etc.)
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In contrast, affirmative action laws require covered employers to
implement very specific plans to identify and hire certain protected
class members. These laws apply to employers that do a specific
dollar amount of business with the federal government, or receive
federal government funds (banks, hospitals, etc.). Additionally, a
court can order an employer to implement an AAP to correct past
discrimination.
AAP requirements can be quite complex, and most employers prefer not
to implement them unless required to do so by law. Below, you will
learn the three situations when employers typically implement these
plans.
What is an
Affirmative Action Plan
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An 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.
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.
Federal Contract
Requirements
Three federal laws require certain employers that do business with
the federal government to implement AAPs: Executive Order 11246, the
Vietnam Era Veterans' Readjustment Assistance Act, and the
Rehabilitation Act. Specifically, under these laws, federal
contractors and subcontractors that employ 50 or more employees and
enter into at least one contract of $50,000 or more with the federal
government must prepare and maintain a written affirmative action
program for the recruitment,
hiring, and promotion of women,
minorities, disabled individuals, and protected veterans. (See 41 C.F.R. §§60-1.40, 60-250.40, 60-741.40.) In addition, any federal
contractor that serves as a depository of government funds in any
amount or that is a financial institution which is an issuing and
paying agent for U.S. savings bonds and savings notes in any amount
must develop and maintain written affirmative action plans. (See 41
C.F.R. §60-1.40.)
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.
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).
2. May not require the
hiring or promotion of unqualified
individuals
3. Must be temporary, lasting only until the plan's goals are
achieved.
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.
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.
AAPs Require Planning,
Expertise
There is no way to get around it – AAPs are time-consuming and
complex, both to create and to implement. So, as a general rule,
most employers do not have one unless they are required to as
federal contractors or by court order to correct past
discrimination. Clearly, the development and implementation of an
AAP should not be undertaken lightly and requires specialized
expertise and review. |
Personnel
Policy Service, Inc.
