Affirmative Action

Legality of AAPs under Title VII (4)

1. A formal AA plan must be in place 2. Must be remedial in nature 3. Must be flexible and temporary in nature 4. Cannot be unduly burdensome on disfavored group

4. Cannot be unduly burdensome on disfavored group

1. Cannot require discharge (AAPs cannot be invoked as basis for layoffs or downsizing) 2. Cannot create absolute bar to employment or advancement

When is it required? (3)

1. Court orders 2. Settlements 3. Federal contractors

Why is AA controversial?

1. Diversity efforts versus affirmative action 2. Is it preferential treatment? 3. Inherent tension between non-discrimination laws and AA plans (reverse discrimination?)

What do courts look for in AA cases?

1. Evidence of remedial need 2. Limiting harm to majority group ("narrowly tailored")

2. Limiting harm to majority group ("narrowly tailored")

1. Flexibility 2. Duration 3. Magnitude

Has AA helped?

1. Generally, research seems to indicate reasonably positive effects 2. Usually more qualified candidates than jobs -- expanding recruiting efforts and providing additional training seem to go a long way 3. Remember, you can't assume that, in the absence of AA, the most able person always gets the job.

2. Must be remedial in nature

1. Must address a "manifest imbalance" in the protected class composition of the employer's workforce ("underutilization") 2. Cannot be used to maintain balance

1. Use of preferences is subjected to strict scrutiny

1. Public employer must show compelling governmental interest 2. AND that measures employed are narrowly tailored

What cannot be used in non-court ordered AAPSs?

1. Quotas 2. Set-asides 3. Hiring of unqualified persons to meet goals

Parts of an Affirmative Action Plan (3)

1. Reasonable self-analysis 2. Reasonable basis for affirmation action 3. Reasonable affirmative actions

1. Evidence of remedial need

1. Statistical imbalance (a "manifest" imbalance) 2. Specific illegal acts of past discrimination 3. Use of selection tools with adverse impact

Legality of AAPs under Constitution

1. Use of preferences is subjected to strict scrutiny 2. Most compelling interest = to remedy the effects of prior illegal discrimination

3. Reasonable affirmative actions

A set of specific goals and aligned actions, with timetables, that will achieve parity (e.g., recruitment, advertising, special training programs)

2. Reasonable basis for affirmation action

Areas of underutilization (utilization is less than availability), flow into jobs/promotions is skewed, disparities in compensation

Executive orders (for AA purposes)

Orders made by the executive branch of the government intended to eliminate unfair discrimination and aimed at organizations that do business directly with the federal government

3. Must be flexible and temporary in nature

Plans with more aggressive use of preferences will have to be very clear regarding temporary nature

1. Reasonable self-analysis

Staffing patterns of organization; including an organizational profile, protected class composition of each job group, and the availability of men, women, and minorities in the relevant labor market

2. Most compelling interest = to remedy the effects of prior illegal discrimination

Statistical disparities are NOT enough

Johnson v. Transportation Agency (1987)

The Transportation Agency, Santa Clara, California promoted Diane Joyce to road dispatcher over Paul Johnson. Both candidates were qualified for the job. As an affirmative action employer, the Agency took into account the sex of the applicants in making the promotion decision. The Court affirmed the promotion procedures of the Agency. Justice Brennan argued that it was not unreasonable to consider sex as one factor among many in making promotion decisions, and that the Agency's actions did not create an absolute barrier to the advancement of men (a quota system did not exist).

What is affirmative action?

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

Can an Affirmative Action Plan be voluntary?

Yes

Executive order 11246

directed at contractors doing business with the federal government, prohibits same discriminatory acts as Title VII, and requires contractors to develop AA plans

Consent decree

judicially approved settlement between parties