Ch. 8 - Affirmative Action

Conditions under which affirmative action plans are established (3)

1) Contractors to the federal government 2) When a discrimination suit results in a court order or settlement that includes affirmative action as a remedy 3) Voluntarily

Three laws requiring affirmative action plans of federal contractors

1) E.O. 11246 2) Section 503 of the Rehabilitation Act (disabilities) 3) Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)

Affirmative action requirements of Executive Order 11246 (4)

1) Employers who contract ($10K or higher) with the federal government must practice affirmative action 2) Employers with 50 or more employees and who contract for $50K or more must have an affirmative action plan that must be submitted to the OFCCP within 120 days of the contract commencing 3) This also applies to those who subcontract with the primary contractor 4) The requirement to practice affirmative action extends to the entire company, and not just to that portion fulfilling the contract

Constitutional requirements regarding affirmative action plans (3)

1) Racial preference will be examined under strict scrutiny 2) The employer is required to show how the plan serves a compelling government interest 3) The employer is required to demonstrate that the plan is narrowly tailored

Three basic elements of an affirmative action plan

1. A reasonable self-analysis 2. A reasonable basis for concluding that action is appropriate 3. Reasonable action

Affirmative action requirement of VEVRAA

Federal contractors with $100K or more in contracts must provide equal employment opportunity and affirmative action on behalf of covered veterans

Constitutional amendments governing affirmative action (2)

Fifth and Fourteenth (equal protection provisions)

May racial preferences be used in downsizing or discipline?

No

Do statistics showing imbalance or underutilization prove prior discrimination?

No; the employer must be shown to have been responsible for the imbalance or underutilization

Office monitoring compliance with E.O. 11246

Office of Federal Contract Compliance Programs (OFCCP)

Five protected classes under E.O. 11246

Race, color, religion, sex, national origin

Consent decree (defined)

Settlements the parties enter into to resolve the dispute between them. It is approved by the court and becomes binding on the parties.

Affirmative action requirements of Section 503 of the Rehabilitation Act (3)

Similar requirements to E.O. 11246: 1) Affirmative action for individuals with disabilities at $10,000 2) A plan at $50,000 (although less detail is required). 3) Similar penalties exist for noncompliance.

Terms under which courts have upheld preferences (3)

The preference should not: 1) Become a quota 2) Last longer than necessary to achieve the specified balance 3) Require the hiring of unqualified persons

Affirmative Action (defined)

Those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity