HR Law Ch. 8: Affirmative Action

Government Contractors and Affirmative Action

1. Companies that contract with the federal government must comply with Executive Order 11246, which requires that: Companies with contracts at least $10,000 must include a nondiscrimination clause in their contracts, and abide by it, and must include that clause in their contracts with subcontractors, who must also abide by it.

When is Affirmative action required?

1. Most companies that have contracts to sell goods or service to the federal government 2. A firm when a discrimination suit results in a settlement or court order that includes affirmative action as a remedy 3. Affirmative action plans may also be voluntarily undertake by a firm 4. Even voluntary affirmative action plans must comply with certain legal requirements.

Affirmative Action

1. Those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity 2. Such efforts must be taken pursuant to a formal affirmative action plan 3. Affirmative action is controversial 4. A majority express support for affirmative action, but responses are sensitive to wording.

Diversity and Affirmative Action

Affirmative action overlaps with the idea of valuing diversity in the workplace Cases in which diversity efforts are not grounded in affirmative action plans lead to reverse discrimination claims, and these are likely to become more common Employers with diversity programs should be aware that valuing diversity does not justify actions that would otherwise be discriminatory

AA Plans under the EO 11246 Monitored by the Office of Federal Contract Compliance Programs (OFCCP)

All facilities of a contract firm must comply, not only the facility that will be doing contract work. OFFCP collects workforce data from employers, conducts compliance reviews, and can initiate lawsuits.

Reverse Discrimination

An employee who believes he was passed over for an employment opportunity because of affirmative action alleges disparate treatment. 1. The employer has taken a protected class into account in making its employment decision 2. The question is whether this use of affirmative action was legal or discriminatory 3. Using affirmative action does not mean establishing quotas or reserving opportunities solely for persons with the desired class characteristic, regardless of their qualifications. 4. Instead the inquiry is whether and to what extent, may protected class characteristics be taken into account for the purpose of undoing past discrimination toward women and people of color.

Executive Order 11246

Contractors promise that they: Will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The contractor will take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, sex or national origin.

Court Order

Court-imposed affirmative action is not common, but many police and fire departments have operated under such decrees.

Organizational Display

Depicts the structure of a firm, like an organizational chart For each unit, information must be provided on the demographics of the supervisor, the total number of males and females, broken down by race and ethnicity

Effects of Affirmative Action

Despite the belief that affirmative action hires are not qualified, a major study found that firms using affirmative action: 1. ...in recruiting, had somewhat comparable educational credentials 2. ...in hiring, hired workers with somewhat lower educational credentials 3. Job performance levels were equal to or exceeded job performance levels of others in the firm 4. Greater training by such firms appears to counteract any lower educational credentials of people hired

Ingredients of Affirmative Action Plans

EEOC Guidelines require that affirmative action plans have 3 main components: 1. A reasonable self analysis 2. A reasonable basis for concluding that action is appropriate (underutilization of women) 3. Reasonable Action (identifying goals and timetables for utilizing women and minorities)

Reasonable Self-Analysis

EEOC does not mandate a certain type of self-analysis, but a good model includes: An organizational profile Job group analysis Documentation of the protected class characteristics of incumbents Identification of problem areas The analysis is done at the individual establishment level

The legality of Affirmative Action under the US Constitution

In constitutional cases, courts review racial preferences with strict scrutiny - the most stringent form of judicial review of government actions A public employer must show: The plan serves a compelling governmental interest, and The measures employed are narrowly tailored Student body diversity can also be a compelling governmental interest

Organizational Profile

Portrays staffing patterns in the organization

The Legality of Affirmative Action under Title 7

To undertake a voluntary affirmative action plan the employer must have: 1. Have an affirmative action plan 2. The plan was remedial in nature. 3. The plan was designed to address a "manifest imbalance" in the protected class composition of the employer's workforce (underutilization) 4. The plan must be a temporary measure that must not continue after the underutilization has been eliminated.

Underutilization

exists when the percentage of women or persons of color is lower than the percentage of women or persons of color with the necessary skills for that type of employment How large does the discrepancy have to be? No single answer, but the Supreme Court consistently refers to the need for evidence of a "manifest imbalance"

Consent Decree

is an agreement or settlement that resolve a dispute between two parties without admission of guilt (in a criminal case) or liability (in a civil case), and most often refers to such a type of settlement in the United States.

Workforce Analysis

requires: Individual job titles are listed for each department or other unit For each job title the same demographic information is provided for the organizational display In a job group analysis, the individual job titles are combined into fewer groupings Identification of problem areas