Employment Law: Chapter 5- Affirmative Action

What are the Proactive measures a co can take to avoid future discrimination claims?

#Temporary #Narrowly tailored to address under-representation #No quotas #Not "unnecessarily trammel" rights of majority workers see Exhibit 5.9 p. 246

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)

What are the rules/steps to develop Affirmative Action Plans? pg 243

-*Affirmative Action Plan: must be developed according to the rules set forth in the Code of Federal Regulations. STEPS: 1. Prepare organizational profile 2. Job group analysis 3. Availability in the workforce difference occurring? 4. if yes, establish placement goal 5. develop and execute "action-oriented" programs Can be audited by OFCCP

Penalties for Noncompliance (2) p. 248

-Can publish names of those who don't comply. -Cancel contract -Debarring the contractor from entering into further govt. contracts. -The Secretary of labor 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

Voluntary Affirmative Action

-Employer or union institutes affirmative action plan on its own, compelled by neither Executive Order nor court. p 251 -Proactive measure to avoid future discrimination claims -Plans must be carefully designed

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. *must agree not to discriminate in hiring, termination, promotion, pay, etc. on basis of race, color, religion, gender, or national origin.

What are specific tactics that an employer can use to include historically underrepresented in the workplace?

-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

Placement Goal (Affirmative Action Plan)

-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

How Do 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

Employment Research Findings p231 Ex 5.5

-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 -blacks hired 40% less than whites b/c of negative assumptions. -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

What are the requirements for a federal contractor with >$10,000 good/services?

1. Post nondiscrimination clause. 2. job solicitations to include a statement will not discriminate. based on race, color, religion, gender etc. 3. State obligation on subcontracts or POs 4. Provide reports and open books for investigation

Safeguards to minimize harm to others

1. did not unnecessarily trammel male employees' rights or create an absolute bar to their advancement. 2. No set aside positions, no quotas. 3. no unsettled expectation of employees 4. Temporary 5. minimal intrusion, settled expectations of other employees.

As part of Action Program to withstand an audit must:

1. have internal auditing system that measures effectiveness of the A.A. plans, including monitoring records of all personnel activity to ensure that the contractor's non-discrimination policy is being carried out. 2. Require internal reporting on a scheduled basis as to the degree to which EEO and organizational objectives are attained. 3. Review report results with all levels of management. 4. Advise top management of program's effectiveness and submit recommendations for improvement, where needed.

Two factors of availability

1. percentage of minorities/women with requisite skills in the reasonable recruitment area. 2. percentage of minorities/women among those promotable, transferable, and trainable within the contractor's organization.

What percentage of Reverse Discrimination claims happen with EEOC?

3% of the charges filed with EEOC.

When does Affirmative action apply?

A government contractor must abide by the executive order nondiscrimination provision. -if >$10,000 - must comply with EO 11246. -if 50+ employees & Contract of $50,000 or + must develop a A.A plan within 120. -If contract: $100,000 +, must employ and advance veterans.

Sins of the Father

Argument against affirmative action, being punished for something they had nothing to do with. But discrimination is still happening today. This remedies the discrimination.

Reverse Discrimination

Claim brought by *majority member (who feels adversely affected by the use of an employer's affirmative action plan, consideration of race or gender, or both, in hiring/promotion decision) It isn't punishment, but rather a remedy for discrimination or vestiges that has been found to exist.

Where are the rules to follow?

Code of Federal Regulations

What creates Affirmative Action?

EO 11246 -Based on amount of contract. pg 241 for details.

Affirmative action

Intentional inclusion of women and minorities in the workplace based on finding of their previous exclusion.

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

Does the OFCCP allow for private lawsuits by employees or even penalties?

No p. 240

Penalties for Noncompliance (1)

No requirements or quotes under EO 11246. 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

Job group analysis (Affirmative Action Plan)

Part of affirmative action plan that lists all job titles that comprise each job group having similar content and responsibilities, wage rates, and opportunities for advancement. *Must include, job titles, percentage of minorities and the percentage of women in each job group.

1st U.S. Supreme Court case for A. A.

Regents of the University of CA v. Bakke Court struck down b/c it set aside a certain number of places for "disadvantaged students".

Organizational profile (Affirmative Action Plan)

Staffing patterns showing organizational units; their relationship to each other; and gender, race, and ethnic composition.

1965 Voting Rights Act

This act suspended the use of literacy tests and authorized the appointment of federal examiner who could order the registration of blacks in states and counties where fewer than 50% were registered, or voted previously.

Can Affirmative Action be taken away?

Yes, it is an Executive order and any president can stop it.

Is everyone protected by the law?

Yes.

Micro-aggressions

a subtle, often unintentional, form of prejudice biased thoughts, attitudes, and feelings that exist at an unconscious level Not giving signs of respect, not making eye contact.

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

How often is the A.A Plan reviewed?

annually, and updated.

Implicit bias

attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. Study by Harvard Uni. 10/1/1999 heavily influence the labor market. Blacks at the very bottom.

Who enforces E.O. 11246

by the Office of Federal Contract Compliance Programs (OFCCP)

to withstand an OFCCP audit:

contracts show that they have made good-faith efforts to remove barriers to EEO, expand employment opportunities, and produce measurable results.

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

Quantitative aspects (Affirmative Action Plan)

examine workplace to get a snapshot of who works there, what capacity, as it relates to minorities and women.

E. O. 8802

first forerunner to E.O. 11246. 1941 by FDR applied only to defense contracts

Availability? does this need to be corrected?

minorities and women in a geographic area who are qualified for a particular position. *see if there is underrepresentation of women/minorities based on the difference between their availability in the workforce from which employees are hired and their presence in the workplace.

What must the employer do to help with Diversity & Inclusion?

p. 259 -Affinity groups -Diverse actors in ads/commercials -Development workshops -Formal complaint procedures -Business networking groups -Management diversity training -Provide mentors

What is the purpose of Affirmative Action plan?

proactive steps to hire qualified women, minorities, or other statutorily mandated groups who are *underrepresented in the workplace. According to the Office of Federal Contract Compliance Programs enforcing Executive order 11246. A.F is necessary to prevent discrimination and to address stereotypical thinking and biases that still impede employment opportunity. -with Timetables for accomplishing the goals

Debar

prohibit a federal contractor from further participation in government contracts

Dave-Bacon Act 1931

requiring prevailing local wage rates be paid to workers on projects receiving federal funds over $2,000

Qualitative aspect (Affirmative Action Plan)

sets out a course of action for how to address any underrepresentation or underutilization or other problems found.

Availability is based on:

the availability of women/minorities qualified for the particular job under consideration.