Affirmative Action: Do you have a plan?

Affirmative action is a much discussed and debated subject.  We hear political candidates talk about it.  We read about it in newspapers and magazines.  Occasionally, we learn that courts make rulings on the subject. 

But how does it relate to employment law?  Well, to answer this question in detail would take more space than a blog allows.  Therefore, let’s focus on the affirmative action requirements that come into play most of the time, particularly as they relate to “affirmative action plans.”   

Equal opportunity–First, let’s make a distinction. In addition to affirmative action, we also hear a lot about “equal employment opportunity.” Most employers are required to be equal opportunity employers, which means you can’t discriminate on the basis of a person’s race, color, sex or gender, religion, national origin, age, or disability.

On the other hand, most employers are probably not required to take affirmative action–-at least from the standpoint of having an affirmative action plan. How so?

Affirmative action is more than simply practicing equal employment opportunity or non-discrimination. Rather, it involves proactive efforts to achieve and maintain a statistically balanced workforce of various protected classes of employees.

Accordingly, if covered by certain affirmative action requirements of the law, you will likely have to recruit and hire more minorities and more females (depending, of course, on what the make-up of your workforce is to begin with). But who’s required to have an affirmative action plan?

Executive Order 11246–Under Executive Order 11246 (issued by President Lyndon Johnson in 1965), employers with 50 or more employees having federal non-construction contracts or subcontracts of $50,000 or more must prepare a written affirmative action plan within 120 days of the commencement of the contract. This written plan must contain:

• a detailed analysis of the employer’s current workforce by race and sex;

• an analysis of whether minorities or females are statistically under-represented or under-utilized in the workforce;

• the establishment of rules for job categories in which minorities or females are under-represented;

• action orientation programs or goals necessary to remedy identified problem areas; and

• time tables for achieving these goals.

So, if the percentage of minority or female employees in your workforce is substantially less than the percentage in your geographical labor area, you must state in the affirmative action plan that you’re going to correct this imbalance–-and then go do it. Needless to say, the development and implementation of an affirmative action plan is a time-consuming process, and it requires extensive documentation and annual reviews and updates.

Although employers having federal constructions contracts aren’t required to develop a written affirmative action plan, they are subject to the executive order’s detailed procedures designed to ensure that females and minorities are represented in the employer’s workforce at levels consistent with the goals established by the U.S. Department of Labor for the economic areas in which an employer performs work. As with non-construction contractors, accurate record- keeping is a fundamental part of the process.

Other laws–Two other federal laws which determine whether an employer needs to be concerned about an affirmative action plan are: the Rehabilitation Act of 1973 (dealing with handicap discrimination) and the Vietnam Era Veterans’ Readjustment Assistance Act (dealing with disabled and Vietnam era veterans). Both of these laws require employers with 50 or more employees and with federal contracts or subcontracts (construction or non-construction) of $50,000 or more to develop written affirmative action plans.

While these affirmative action plans are not required to contain a utilization analysis or to establish goals, they are required to contain procedures for identifying and removing barriers to employment and advancement, as well as enhancing the recruiting efforts of covered employers. If an affirmative action plan is required, it must apply to all of your work, all of your facilities, and all of your employees–-not just your work, facilities, and employees involved with the federal contract or subcontract.

Bottom line–What does all of this mean? It means that you should carefully consider the obligations you’re assuming when you bid to do work on a federal contract or subcontract.

If you already have government contracts, it means you should do an internal audit to assess your compliance. If you’re not in compliance, you should get there as quickly as possible or at least before you receive a visit from the Office of Federal Contract Compliance Programs (OFCCP), the federal enforcement agency for federal contracts and subcontracts.

If you are investigated by the OFCCP and found to be out of compliance with these affirmative action requirements, this can result in contract cancellation, termination, or suspension, as well as back pay for workers who were discriminated against. In addition, you may be declared ineligible to participate in government contracts in the future.

Perhaps most important, when you are trying to determine whether you’re required to have an affirmative action plan, obtain legal advice.

1. 

   mary D Snead says:

   January 25, 2008 at 10:10 am

   Your overview is fine but one important note;
   compliance with affirmative action regulations is not based soley on statistics or numbers but the standard of compliance is “good faith.”
   Are employers making reasonable efforts to achieve an equal opportunity environment?
   One way, employers can demonstrate this is of course, statistically. Are you employing all groups at a rate that would be reasonably expected based on those qualified and available ? Again, the assumption is that absent any discrimination would not our workforces reflect the labor market ?
2. 

   John Phillips says:

   January 25, 2008 at 10:32 am

   Mary, very good points. Thanks for the clarification.