Affirmative Action Plans

The U.S. Supreme Court's 2023 rulings on affirmative action in colleges and universities raised a lot of questions. The court held in two cases that race could no longer be a factor in determining college admissions. But what does this mean for affirmative action in employment?

Laws prohibiting workplace discrimination have been in effect since the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) ensures fairness in the workplace. But more is needed to help provide access to jobs. That requires affirmative action.

The Goals of Affirmative Action

In 1965, President Lyndon B. Johnson signed Executive Order 11246. It prohibits federal contractor holders from discriminating based on:

• Gender
• Race
• Color
• Religion
• National origin

The order requires contractors to take "affirmative action" to promote hiring minority workers. The Office of Federal Contract Compliance Programs (OFCCP) ensures federal contractors take affirmative action. Government contractors with more than 50 employees and contracts worth more than $50,000 must use these plans when hiring.

Affirmative action does not mean hiring unqualified people from minority groups over more qualified workers. Businesses are not required to set quotas based on race or any other factor listed above.

Affirmative action encourages hiring qualified minorities to apply for available positions. It encourages those with government contracts to make good-faith efforts to find applicants.

Private companies do not have affirmative action obligations. The EEOC rules against discrimination still bind them. Private companies planning to work with the government should consider developing an affirmative action program (AAP).

For more information, see FindLaw's Civil Rights and Employment Law sections.

Affirmative Action Plans: Basics

The U.S. Department of Labor (DOL) has created sample affirmative action programs (AAPs) for organizations to use when assembling their hiring policies.

Affirmative action plans must conform to the Code of Federal Regulations (41 CFR 60-2). This describes the affirmative action requirements contractors and subcontractors must use to meet OFCCP regulations.

The AAP is a detailed outline of what a company sees as a problem area within its workforce and how it plans to address the issue. An effective AAP must have a verifiable target, a deadline, and a measurable reporting system.

A company needs to audit itself first to find any underrepresented areas. Then it can conduct research to determine if qualified candidates are available. Responsibility for implementing the AAP falls to job group managers.

Suppose the target demographic is women. The contracting company performs an internal audit and finds just 10% of its middle managers and 4% of its line supervisors are women. Human resources management surveys a 25-mile radius of the neighborhoods surrounding the company. It finds enough qualified applicants in that area to meet its needs.

The contracting company now develops a written affirmative action plan. This will devise job titles and descriptions and set a deadline for the hiring plan.

Small Business and Affirmative Action

Most small businesses are not required to have affirmative action plans. But some may need them if they have federal government contracts. Smaller contractors and subcontracts with larger aggregates must still perform outreach efforts for:

• Minorities
• Individuals with disabilities
• Protected veterans

No matter their size, all companies must be equal opportunity employers. Equal opportunity employment is different from affirmative action. Equal opportunity laws are nondiscrimination laws, not requirements to hire minority workers. Companies may not have discriminatory employment practices or policies.

Title VII of the Civil Rights Act prohibits discriminatory hiring based on:

• Race
• Ethnicity
• Religion
• National origin
• Gender
• Sexual orientation
• Disability
• Veteran status
• Other protected status

The EEOC protects against violations of the Civil Rights Act and other nondiscrimination laws.

Learn More About Affirmative Action Plans From an Attorney

If you think your business needs an affirmative action plan, contact an employment law lawyer first. Be sure that you need the plan and that it meets state and federal guidelines.