Affirmative Action

Affirmative action is the legal term for any program that grants preferences in training, hiring, or promotion to women or minority group members. There are two situations in which an employer is required to adopt affirmative action measures: when it has been ordered to do so as part of the resolution of a discrimination lawsuit against it, or when it has entered into a contract with a state or federal government entity, and is required to use an affirmative action program according to the contract.

Affirmative action may be ordered by a court if it finds that an employer has engaged in a pattern of egregious violations of the law, and believes that affirmative action is necessary to end the discriminatory practices or to ameliorate its continuing effects. Even where a court orders affirmative action, however, the plan approved by the court must be reasonable, and may not "unnecessarily trammel" the rights of other employees. For example, a court-ordered affirmative action plan may not require that white or male employees be fired, that a seniority system be abandoned, or that test scores be altered.

Most employers who engage in affirmative action do so because they engage in business with a state, federal or local government, or subcontract with a business which itself has a contract with a governmental entity. The federal government first began encouraging affirmative action by its contractors during World War II, but did not actually require it until the 1970s. At that time, the Department of Labor adopted a definition of "affirmative action," and began to require that every contractor perform an "underutilization analysis" to determine whether women or minority group members were being underutilized in its workplace. Contractors would then need to make a good-faith effort to remedy any underutilization. Today, each government contractor with a contract (or contracts) worth $10,000 or more must file, either with the Equal Employment Opportunity Commission (EEOC) or the Office of Federal Contract Compliance Programs, a yearly disclosure of the number of women, minority group members and disabled employees in its workplace, and a plan for increasing those numbers, if necessary. An employer is required to comply with this law even if it is unaware that it is a party to a government contract, and even if the contract is unavoidable. Many state and local governments have imposed their own affirmative action requirements upon contractors.

Some employers have also adopted affirmative action measures voluntarily, to avoid or correct a perceived imbalance in the workplace, or to provide additional opportunities for women or minority group members. While the attempt to remedy past discrimination in the workforce is laudable, an employer who institutes an affirmative action program without the oversight of the government or the courts may inadvertently violate the law.

In order to adopt a voluntary affirmative action program legally, an employer must be able to show that either it or the local industry has, in fact, discriminated against the particular group, which the employer now wishes to advance. Once it has done so, the employer may make membership in that group a consideration in hiring, training, or promotion decisions. The employer may not, however, require that existing employees be fired to make way for women or minority group member employees, mandate that only women or minority group members be hired, or require that, for example, one woman be hired for every man hired by the company.

An employer is also barred from manipulating the test scores of certain employees or applicants in order to increase the likelihood that they will be hired or promoted. In the past, employers have tried to conduct affirmative action by adding points to the test scores of women or minority group members, or by comparing their scores to those of other women or minority group members, a practice known as "race norming." This practice was barred by the Civil Rights Act of 1991, and may now be used only if ordered by a court.

How Employment Law Attorneys Can Help Employers

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