Employment Law: Chapter 5- Affirmative Action

Executive Order Affirmative Action Plans

-*Affirmative Action Plan: must be developed according to the rules set forth in the Code of Federal Regulations -*Underrepresentation/Underutilization: Significantly fewer minorities or woman in the workplace than relevant statistics indicate are available (or their qualifications indicate they should be working at better jobs)

Executive Order Affirmative Action Plans (3)

-*Availability: minorities and women in a geographic area who are qualified for a particular position -Factors used to determine availability: #The percentage of minorities or women with requisite skills in the reasonable recruitment area #The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization

Executive Order Affirmative Action Plans (2)

-*Organizational Profile: a depiction of the staffing pattern within an establishment. It is one method contractors use to determine whether barriers to equal employment opportunity exist in their organizations -*Job Group Analysis: an analysis performed on job groups to determine the gap between the actual and required resources present in the individual job groups or at a consolidated level. This analysis covers each job group individually to determine the number of employees present and the estimated requirement. It also takes into consideration the variety of people present in the teams that can be on the basis of gender, nationality, etc.

Voluntary Affirmative Action

-Employer or union institutes affirmative action plan on its own, compelled by neither Executive Order nor court -Proactive measure to avoid future discrimination claims -Plans must be carefully designed: #Temporary #Narrowly tailored to address under-representation #No quotas #Not "unnecessarily trammel" rights of majority workers

Affirmative Action and Veterans

-Jobs for Veterans Act of 2002 -Federal contractors must take affirmative action to hire and promote qualified veterans -Under the law, generally, "qualified targeted veterans are entitled to priority for referral to federal contractor job openings" -Also administered by OFCCP

Executive Order 11246 Provisions

-Requires federal *government contractors* (suppliers of goods, services) to remedy inadequate representation of women and minorities in their workplace -Enforced by the Office of Federal Contract Compliance Programs (OFCCP)

Penalties for Noncompliance (2)

-the Department of Labor/OFCCP or the appropriate contracting agency can impose a number of monetary penalties on the employer, including "debarment" (banning company from future contracts for a period of time) -The DOL/OFCCP must make reasonable efforts to secure compliance by conference, conciliation, mediation, and persuasion before requesting the U.S. Attorney General to act, or before canceling or surrendering a contract

Employment Research Findings

-women and minorities still lag behind in terms of opportunities, pay, and promotions -research shows that people tend to notice value more quickly in someone who looks like them -almost 90% of jobs are filled through word-of-mouth: fewer minorities and women being able to take advantage of those networks -Glass Ceiling Commission Report: white woman half of workforce but 5% of senior corporate jobs

Reverse Discrimination

Claim brought by *majority member (who feels adversely affected by the use of an employer's affirmative action plan) -Reverse Discrimination accounts for only about 3% of the charges filed with EEOC

Executive Order Affirmative Action Plans (5)

Corporate Management Compliance Evaluations: designed to ascertain whether individuals are encountering artificial barriers to advancement into mid-level and senior corporate management, i.e., glass ceiling. During Corporate Management Compliance Evaluations, special attention is given to those components of the employment process that affect advancement into mid-and senior-level positions. -OFCCP Equal Opportunity Survey every year

Valuing Diversity/Multiculturalism

Learning to accept and appreciate those who are different from the majority and value their contributions to the workplace -mirrors population, workforce changes -also reflects rise in buying power of diverse customer base -decisions with limited input likely to be sup-optimal

Executive Order Affirmative Action Plans (4)

Placement Goal: percentage of women and/or minorities to be hired or promoted to correct underrepresentation -based on reasonable availability in the geographic area -Quotas are expressly forbidden -Action-oriented, more than business-as-usual -OFCCP audits: good-faith, measurable progress

How Do Affirmative Action Obligations Arise?

There are 3 ways in which affirmative action obligations arise: -through Executive Order 11246 (gov. contractors) -Judicially, as a remedy for a persistent finding of discrimination under Title VII -Voluntarily, affirmative action established by an employer or union

Penalties for Noncompliance (1)

What is important to OFCCP? -the nature and extent of the contractor's good-faith affirmative action activities -the appropriateness of those activities to the problems the contractor has identified in the workplace

Judicial Affirmative Action

affirmative action ordered by a court, rather than arising from Executive Order 11246 -there are no specific requirements as to what form an affirmative action plan must take

What are specific tactics that an employer can use?

employers can... -expand outreach, recruitment to new groups -Mentoring, management training, and development -Hiring, training, promoting groups that have tended to be left out of those processes

What is Affirmative Action?

proactive steps to hire qualified women, minorities, or other statutorily mandated groups who are *underrepresented in the workplace.