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Who Needs Written Affirmative Action Plans?                          [EEO policy]

Editor's Note regarding citations used in this article: References to "C.F.R." refer to the Code of Federal Regulations, the official government publication for federal regulations.

What is an Affirmative Action Plan
Federal Contract Requirements
Court-Ordered Plans
Voluntary Plans
AAPs Require Planning, Expertise

Organizations that do business with the federal government or receive federal government funds are required to implement formal affirmative action plans. Still, some choose to do so voluntarily. Find out below when employers must implement AAPs and what those plans should address.

Some employers assume that they have to have affirmative action plans (AAPs) in place in order to comply with federal equal employment opportunity (EEO) laws. However, EEO laws typically only prohibit unlawful discrimination against "protected classes" of applicants and employees. (The term "protected classes" refers to applicants and employees protected against discrimination by EEO laws, for example because of their race, gender, age, disability, etc.)

[Creating HR Policies or Employee Handbook?]

In contrast, affirmative action laws require covered employers to implement very specific plans to identify and hire certain protected class members. These laws apply to employers that do a specific dollar amount of business with the federal government, or receive federal government funds (banks, hospitals, etc.). Additionally, a court can order an employer to implement an AAP to correct past discrimination.

AAP requirements can be quite complex, and most employers prefer not to implement them unless required to do so by law. Below, you will learn the three situations when employers typically implement these plans.

What is an Affirmative Action Plan
                            [Download Free Policies]

An AAP consists of statistical analyses of the employer's "underutilization" of individuals from certain protected classes and includes the steps that will be taken to improve their representation in the employer's workforce. Separate AAPs must be created for women and minorities, Vietnam era and certain other veterans, and disabled individuals. Although the plan must be written each year, it does not have to be filed with the Office of Federal Contract Compliance Programs (the agency that oversees the contracts) until an audit is conducted.

Employers generally implement formal affirmative action plans in three circumstances: (1) as a condition of doing business with the federal government; (2) as a remedy for discrimination, ordered by a court; and (3) as a voluntary remedy for past patterns of discrimination. Each of these situations is discussed below.

Federal Contract Requirements

Three federal laws require certain employers that do business with the federal government to implement AAPs: Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act, and the Rehabilitation Act. Specifically, under these laws, federal contractors and subcontractors that employ 50 or more employees and enter into at least one contract of $50,000 or more with the federal government must prepare and maintain a written affirmative action program for the recruitment, hiring, and promotion of women, minorities, disabled individuals, and protected veterans. (See 41 C.F.R. §§60-1.40, 60-250.40, 60-741.40.) In addition, any federal contractor that serves as a depository of government funds in any amount or that is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount must develop and maintain written affirmative action plans. (See 41 C.F.R. §60-1.40.)

An affirmative action plan must be developed within 120 days from the commencement of the covered contract and must be updated annually. (See 41 C.F.R. §60-2.1(c).) The plan generally should include:

1. An organizational profile (that generally may be based on the contractor's organizational chart).

2. A job group analysis that compares jobs with similar content, wage rates, and opportunities.

3. An analysis of the placement of incumbents (current employees) in job groups, stating the percentage of minorities and women in each job group.

4. A determination of availability of qualified minorities or women in the area available for employment in a given job group.

5. A comparison of incumbents (current employees) to available qualified minorities and women.

6. Placement goals for particular job groups.

7. A designated person responsible for the implementation of the program.

8. In-depth analyses of problem areas in the contractor's employment process.

9. Action-oriented programs to correct any problems areas identified and to attain established goals and objectives.

10. An internal audit and reporting system that periodically measures the effectiveness of the affirmative action plan. (See, e.g., 41 C.F.R. §§60-2.10 to 60-2.17.)

Many states also have AAP requirements for state contractors.

Court-Ordered Plans

Courts may require employers to adopt affirmative action plans as a remedy for discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). Court-ordered affirmative action is an appropriate remedy in cases involving "foot-dragging, egregious noncompliance, or widespread and persistent discrimination." For example, in Shuford v. Alabama State Bd. of Educ., 846 F. Supp. 1511 (M.D. Ala. 1994), the court determined that an affirmative action plan was the proper remedy for race discrimination by a school board that failed to desegregate its faculty and did not develop objective hiring standards although it was ordered to do so 20 years earlier.

The affirmative action order must be narrowly tailored to the government's compelling interests. Accordingly, the court-ordered plan generally:

1. May not be overly burdensome on third parties (for example by requiring discharge or layoffs).

2. May not require the hiring or promotion of unqualified individuals

3. Must be temporary, lasting only until the plan's goals are achieved.

Voluntary Plans

Some employers adopt voluntary affirmative action programs in order to remedy past adverse impact against particular protected classes. For example, an employer may implement a plan to encourage more women to apply for a job category traditionally dominated by men. However, any voluntary program must be narrowly tailored in time and scope so that it remedies past discrimination only. Plans that exceed this scope may expose the employer to potential liability for reverse discrimination.

For example, in Taxman v. Piscataway Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996), the court determined that a school board's voluntary affirmative action plan violated Title VII. The plan included layoffs for nonminority teachers whenever the board noted a racial imbalance, and it was designed to promote diversity rather than remedy past discrimination. Similarly, in Dallas Fire Fighters Ass'n v. City of Dallas, Tex., 150 F.3d 438 (5th Cir. 1998), cert. denied, 526 U.S. 1038 (1999), the court found that a fire department's voluntary affirmative action plan giving promotions based on race and gender was illegal because there was no significant evidence of past discrimination that the plan was designed to remedy.

Generally, a voluntary affirmative action program is permissible if:

1. The purpose is to remedy old patterns of discrimination.

2. The program does not unnecessarily infringe upon the rights of employees not included in the program (for example, it does not require the termination of employees not covered by the program to be replaced by covered employees).

3. The program does not prevent advancement by employees not covered under the program.

4. The program is a temporary measure to remedy past discrimination rather than designed to ensure a continuing balance in the workforce.

AAPs Require Planning, Expertise

There is no way to get around it – AAPs are time-consuming and complex, both to create and to implement. So, as a general rule, most employers do not have one unless they are required to as federal contractors or by court order to correct past discrimination. Clearly, the development and implementation of an AAP should not be undertaken lightly and requires specialized expertise and review.

 

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

 
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