Federal Law > Hiring Employees > Affirmative Action

Affirmative Action

 

Affirmative actions are activities, plans, or practices which employers can use to ensure that traditional victims of discrimination will be fairly represented throughout the work force. In voluntary affirmative action plans, the employer takes the initiative to develop a program to correct the impact of past discrimination and to ensure equal opportunity. In mandatory affirmative action plans, an employer is required by a judicial or administrative body to remedy unlawful discrimination practices by entering into a formal plan to provide equal employment opportunities.

Federal Contractors and Affirmative Action. Private employers, absent the imposition of a mandatory requirement for affirmative action to remedy past imbalances, do not have an obligation to implement affirmative action plans. Private employers must comply with Title VII of the Civil Rights Act of 1964 and various other federal statutes which require non-discrimination in the workplace. However, private employers who are not government contractors do not have affirmative action obligations to recruit minority employees.

Executive Order 11246 applies to federal contractors with federal contracts that are worth more than $10,000 in a 12 month period. Among other things, it specifies that federal contractors or subcontractors with 50 or more employees and federal contracts for services or supplies of $50,000 or more implement and maintain an annual, written affirmative action program for each one of its establishments.1

Section 503 of the Rehabilitation Act of 1973 demands that a federal contractor or subcontractor with a contract for supplies or services in excess of $2,500 is required to insert, and adhere to, an affirmative action clause in covered contracts and subcontracts. The Rehabilitation Act of 1973 protects qualified individuals with disabilities. Under the Rehabilitation Act, federal contractors with 50 or more employees providing services or supplies in excess of $50,000 must actually implement and maintain an annual written affirmation action plan including a program for individuals with disabilities.2

Section 402 of the Vietnam Era Veterans Readjustment Act of 1974. Section 402 of the Vietnam Era Veterans Readjustment Act of 1974 requires a federal contractor providing supplies or services in excess of $10,000 to insert and adhere to an affirmative action clause in a federal contract and to file a Vets-100 Report annually. A federal contractor with 50 or more employees and a contract for supplies or services in excess of $50,000 must implement and maintain not only a written affirmative action plan but also a program for Vietnam era and special disabled veterans.3

DOL Changes Procedures for VETS-100 Reporting.  Effective January 15, 2012, Employers will no longer be able to electronically file a VETS 100/100A Report. Employers may still file, but must first download the form from the VETS website www.dol.gov/vets/programs/fcp/main.htm, fill out the form and mail or email it to:

Veterans' Employment and Training Service (VETS)
In Care of: Department of Labor National Contact Center (DOL-NCC)
Suite 200
14120 Newbrook Drive
Chantilly, VA 20151
(866) 237-0275

Or email to: VETS100-Customersupport@dol.gov

Remedying Underutilization. Affirmative action plans are designed to remedy underutilization of minorities or women. Underutilization occurs when there are fewer minorities or women in a particular job group than would be reasonably expected by their availability in the general population. Experience with affirmative action tells us that there are certain job classifications in which minorities are, in fact, underutilized. Among those job classifications are the following: Officials and managers, professionals, technicians, sales workers, office and clerical, and skilled craft workers.

Similarly, there are certain job classifications in which females have been typically underutilized as well. Among those classifications are the following: Officials and managers, professionals, technicians, exempt sales workers, and skilled craft workers.

Office of Federal Contract Compliance. The OFCCP is the government agency charged with enforcement and monitoring compliance of these contractors with affirmative action obligations. In scrutinizing work force statistics to determine whether under utilization of minorities and females have occurred, the OFCCP may use three different methods for identifying underutilization. Initially, the 80% standard or "4/5 rule" finds underutilization of females and minorities where a contractors workforce has employed less than 80% of the minority group as would be available in the general population. In addition, the OFCCP has utilized the "any difference" rule by determining whether females and minorities were utilized less than their general availability by any amount. Finally, a test for statistical significance, often referred to as the "two standard deviation test", focuses upon the extent to which females and minorities are utilized less than their availability in the general work force and the difference is statistically significant.

When the Office of Federal Contract Compliance discovers underutilization, two types of federal affirmative action goals may be implemented to cure the underutilization problem. Placement goals (statistical goals) are the numerical projections to which the contractor must point for full placement of minorities and females in underutilized job groups. Program goals (narrative goals) are non-statistical measures. They consist of out-reach efforts and action oriented employer programs directed toward moving minorities and females into job classification groups in percentages reflective of general population compliments.

Elements of an Affirmative Action Program. General policy statements or simple affirmations that a company will attempt to provide equal employment opportunities for all typically is not enough to cure an underutilization problem. As a consequence, the Office of Federal Contract Compliance demands that affirmative action plans contain specific implementation strategies for recruiting minorities and women. Among the actions which companies typically take in addressing underutilization problems in recruitment are the following:

1. A specific description of the steps the organization will be taking to communicate its affirmation action/EEO policy internally to its management and employee staff, as well as external steps it will be taking to communicate the EEO policy to applicants, customers, and other recruitment sources, including colleges and universities.

2. A specific statement which allocates responsibilities for implementation of the EEO policy and affirmative action program along with a description of the specific actions to be carried out by designated supervisors under the oversight of an EEO coordinator.

3. A specific description of the program of recordkeeping and reporting systems which will allow the organization to monitor and track the effectiveness of its recruiting efforts.

4. A specific statement of community action programs which will be implemented to improve communication, visibility and contact with minorities and females in order to facilitate recruiting efforts.

An affirmation action plan will also seek to identify problem areas which exist in employment processes such as recruiting to highlight where affirmative action efforts may be required. Many times, problems are identified by job group, organizational unit or department. Action oriented programs are then developed to address the problem areas and establish goals and objectives for recruitment for these areas.

Benefits of a Plan. The benefits of having an affirmative action plan will extend beyond the changes that the plan can produce in the employer's hiring practices. Should the employer receive a discrimination claim, faithful adherence to the plan could bolster the employer's position that it did not discriminate. On the other hand, sloppy implementation of a plan could lead a court to be skeptical about the employer's defensive statements of non-discrimination. Many courts have regarded an employer's attention to its own affirmative action plan as being indicative of its attitude toward minority groups and women.4 An employer cannot escape liability for employment discrimination merely because it has an affirmative action program. However, where an employer has implemented and cultivated a program that works, the courts have considered this fact to be relevant evidence in a defense seeking to rebut other allegations of discrimination.5

In developing an affirmative action program, an employer should consult with counsel. The OFCCP can be very demanding, and strict compliance with government regulations will demand appropriate legal guidance.

OFCCP Issues New Rules for Applicants to Identify Disabilities; Access to Affirmative Action Plans

The Office of Federal Contract Compliance Programs amended its regulations in 1997 relating to enforcement of the Vocational Rehabilitation Act of 1973 and to implementation of the Vietnam Era Veterans Readjustment Assistance Act of 1974. The primary purpose of these amendments is to conform the OFCCP's regulations to the Equal Employment Opportunity Commission's regulations implementing Title I of the Americans With Disabilities Act. As a result, the obligation to invite applicants and employees to voluntarily identify disabilities has been significantly altered.

Prohibition of Self-Identification. While government contractors traditionally have asked applicants to self-identify race, sex, veteran and disability status, the amended regulations now prohibit employers from inviting applicants to self-identify disability or veteran status before a conditional offer of employment has been extended. Thus, self-identification forms that are given out with an application form must be revised to omit inquiries under the Rehabilitation Act and VEVRA.

When Applicants May be Invited to Self-Identify. The OFCCP's regulations also allow a contractor to invite self-identification prior to an offer of employment in two unlikely situations. These situations are: if the invitation is made when the contractor actually is undertaking affirmative action for individuals with disabilities at the pre-offer stage; or, if the invitation is made pursuant to a federal, state or local law requiring affirmative action for individuals with disabilities.

Content of Invitations to Self-Identify.
In addition to describing when an invitation can be made, the final rules also require revision to its content. The new invitation must recite that an individual may self-identify immediately or at any time there-after. The OFCCP's sample invitations add the following language: "If you have a disability and would like to be considered under the affirmative action program, please tell us. You may inform us of your desire to benefit under the program at this time and/or at any time in the future."

Finally, the regulations provide that if an invitation to self-identify is being made prior to an offer of employment, pursuant to one of the exceptions described above, the contractor must not make any inquiry about medical conditions or reasonable accommodations. Therefore, if an invitation is properly extended pre-offer, it nevertheless should not include reference to or inquiries about any "reasonable accommodation" that might assist the applicant in performing the essential functions of a position.

Other Notable Amendments Include the Following:

  • Affirmative Action Statement. The equal employment opportunity and affirmative action policy statement must include a non-retaliation provision, such as: "Employees and applicants shall not be subjected to harassment, intimidation, threats, coercion or discrimination because they have: 1) filed a complaint; 2) assisted or participated in an investigation, compliance review hearing or any other activity related to the administration of any federal, state or local law requiring equal employment opportunity; 3) opposed any act or practice made unlawful by any federal, state or local law requiring equal opportunity; or 4) exercised any other right protected by federal state or local law requiring equal opportunity";
  • Recordkeeping. All records supporting an affirmative action plan must be maintained for two years from the date they were made; and,
  • Training Programs. The written affirmative action plan for individuals with disabilities specifically must refer to training programs which will be implemented to advise managers about their affirmative action obligations.

Who Is An Applicant? Federal government contractors are required to monitor the effect of their selection processes on minority and female applicants. To do so, contractors must keep track of the race and sex of employment applicants and analyze the hiring process for adverse impact. The OFCCP is relying upon the definition of applicant in the Uniform Guidelines on Employee Selection Procedures, that is, "any person who has indicated an interest" in an employment opportunity and is at the point in the application process where the individual's qualifications are judged.

The OFCCP has stated that contractors are free to develop their own definition of "interest." For example, contractors may decide they will not consider a phone inquiry as an expression of interest. However, the OFCCP will not find acceptable a definition which raises the bar too high, such as defining applicants as only those who are interviewed. Additionally, contractors will be held to their own definition of applicant and reviewed accordingly. Therefore, contractors should apply the definition consistently and monitor their hiring process aggressively.

Freedom Of Information Act. Under the Freedom of Information Act, a government agency must make available to the public upon request any documents in its possession, subject to certain limitations. Under the OFCCP's new interpretation of this obligation, any document, including a previously submitted affirmative action plan, which is requested three times will be "placed" into a "reading room" which is open to the public. In addition to creating a "reading room," the OFCCP will make these documents available on its Web site on the Internet. The OFCCP also plans to place all scheduling letters on the Internet automatically after they are sent to a contractor. As a result of this new rule, anyone using the Internet may gain access to your affirmative action plan.

As with all FOIA requests, contractors will be given an opportunity to object to the release of their affirmative action plan, but may be required to show that the information is proprietary or that the release of information may cause financial harm to the company. We recommend clearly identifying which sections are considered confidential.

Editor's note: What is not clear and has not yet been defined by the OFCCP is the exception for "undertaking affirmative action at the pre-offer stage." The OFCCP has advised that "undertaking affirmative action" most likely means actually performing a comparative analysis of the utilization of individuals with disabilities or covered veterans, identifying problem areas of underutilization and taking specific steps to remedy the identified problem areas. Because such statistical analysis generally is not required by law or regulation or unless the employer is under some obligation like a consent decree, this exception only will apply in rare circumstances. Furthermore, the second exception is meant to apply where specific laws require an employer to undertake affirmative action for people with disabilities. Like the first exception, this rarely will occur.

New Regulations Allow OFCCP Flexibility In Monitoring Employers

The Office of Federal Contract Compliance Programs has adopted final regulations regarding affirmative action which significantly impact both the manner in which the OFCCP will monitor affirmative action compliance and federal contractorsí obligations.

OFCCP May Conduct Tiered Compliance Evaluations. Under the former regulations, the OFCCP monitored contractor compliance by conducting a compliance review. Regardless of a contractor's size and previous compliance history, the regulations required a desk audit of the written affirmative action plan, an on-site review and off-site analysis. The new regulations give the OFCCP more flexibility.

Types of compliance evaluations. Now, a compliance evaluation may take one of four forms: an off-site review of records, a compliance check, a focused review, or a complete review to monitor compliance. During an off-site review of records, the agency may evaluate a contractorís written affirmative action plan. A compliance check includes an on-site visit to determine whether an affirmative action plan has been developed, whether information previously submitted is complete and accurate or whether a contractor is complying with recordkeeping requirements. Finally, a focused review permits an on-site review of one or more components of an organization.

The OFCCP believes this new flexible approach will enable it efficiently to target serious offenders while checking compliance of a great number of contractors.

New Recordkeeping Requirements. The new regulations provide that contractors must maintain any personnel or employment record for two years from the date of either the record or the personnel action to which the record relates, whichever is later. Contractors with fewer than 150 employees or no government contract in excess of $150,000 must keep records for one year. However, when a contractor receives notice of a complaint, a compliance evaluation, or enforcement proceedings, all documents relevant to the action must be preserved until the action concludes.

In addition, the regulations specifically state that contractors must maintain both their current and prior yearís affirmative action plans, as well as documentation of good faith efforts. Finally, the regulations permit the OFCCP to presume that any records not maintained were unfavorable to the contractor.

Other Significant Changes. The new regulations include other significant changes for federal contractors:

  • The OFCCP has removed contractors' obligations to obtain written certification from vendors that their facilities are not segregated by race and sex.
  • The OFCCP's jurisdiction to conduct pre-award compliance evaluations now covers contracts with a value exceeding $10 million dollars.
  • The sanction provisions have been amended to include fixed term debarments of not less than six months.

Editor's note: Because of the explicitly stated recordkeeping requirements of 2 years for larger employers, it is critical that applicant flow is accurately maintained and monitored. The OFCCP uses applicant flow to determine whether an employerís selection decisions have had an adverse impact upon minorities or females. Such findings can lead to demands for make whole relief.

The above information concerning the OFCCP"s regulations was contributed by the law firm of Jackson, Lewis, Schnitzler & Krupman.

State affirmative action laws. Note that each state may have its own affirmative action requirements of state contractors and subcontractors. You should determine whether the laws of your state have such requirements.

Sample Affirmative Action Program (AAP)

The following link leads to a sample AAP in PDF format, for an establishment with fewer than 150 employees. The PDF is provided for illustrative purposes only and does not represent the only styles and formats that meet regulatory requirements. AAP job groups in this sample AAP are formulated according to EEO-1 occupational categories as authorized by 41 CFR 60-2.12(e):





SOURCES
  1. 41 CFR Part 60.

  2. See 29 U.S.C. § 793

  3. 38 U.S.C. § 4211 et seq.

  4. See Coser v. Moore, 739 F.2d 846 (2nd Cir. 1984); Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.. 1985).

  5. See Carroll v. Sears Roebuck & Co., 514 F. Supp. 788 (W.D. La 1981).
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