I’ve been remiss. There I said it. Admitting the problem (or in this case the omission) is supposed to be the first step. So what didn’t I do? I have written on just about every anti-discrimination law. Well, I just had this epiphany. I have never really written about affirmative action. What self-respecting employment attorney/blogger misses that? Me, apparently. Well, actually that’s not exactly true. I did briefly discuss affirmative action here in the context of the rights of LGBT workers. Nevertheless, the topic deserves more attention than I’ve given it. Today, while we’re still in the first month of a new year, I resolve to rectify that error. What’s the difference between affirmative action and all the other anti-discrimination laws and concepts we’ve discussed here? I’ll cover that and more, after the jump…
(image from library.ship.edu)
We already know that in the employment context there are many laws, such as Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act…you get the idea. What could affirmative action cover that these laws or all these other non-discrimination laws do not?
Anti-discrimination laws prohibit discrimination in hiring and employment practices. An employer who treats someone adversely based on his/her membership in a class protected under any of the aforementioned (or other) anti-discrimination laws risks legal liability. The laws prohibit certain behaviors and are designed to punish those employers engaging in the behaviors in question. Affirmative Action requires certain employers to take actual steps to remedy past discrimination and ensure that people from historically disadvantaged groups are appropriately represented in the workplace in accordance with certain laws and regulations. Think of the anti-discrimination/EEO rules as the “Thou shalt not’s” and the Affirmative Action laws as the “Thou shalt’s” of employment law.
Does every employer have to follow affirmative action laws and rules? If yes, why haven’t we discussed them before, and if no, then who is subject to them? No. Federal Affirmative Action laws and rules apply to federal government agencies and federal contractors and sub-contractors. Similarly, state Affirmative Action laws will generally apply to state government agencies and state contractors and sub-contractors. Now, it’s easy enough to figure out which entities/employers are government agencies. What about contractors? Federal contractors are usually private companies that have contracts with federal government agencies. The key federal affirmative action laws and the criteria for determining who is subject to them as are follows:
- Executive Order 11246: Signed into law by President Johnson on September 24, 1965, (just over one year after enactment of the Civil Rights Act of 1964), it “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.”, and requires contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” Federal contractors or sub-contractors with 50 or more employers who have entered into at least one contract of $50,000 or more with a federal agency must, within 120 days of the commencement of the contract prepare and maintain a written program, covering, recruiting, hiring, advancement of women and minorities and update the program annually. (Known as”the 50/50 rule”.) This same requirement also applies to any depository of government funds in any amount or any financial institution that is an issuing or paying agent for US savings bonds and notes in any amount.
- Section 503 of the Rehabilitation Act of 1973: requires contractors with contracts over $10,000 to take affirmative action with regard to recruiting, hiring and advancement of individuals with disabilities (IWD’s);
- Section 501 of the Rehabilitation Act of 1973: requires nondiscrimination and affirmative action in employment by federal agencies of the Executive Branch.
- Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) as amended by the Jobs for Veterans Act: requires contractors to take affirmative action to employ and advance in employment veterans with service-connected disabilities, recently separated veterans, and other protected veterans. Those with contracts entered into before December 1, 2003 with 50 or more employees and at least one contract with a federal agency of $25,000 or more are required to take affirmative action. If their contracts were worth $50,000 or more they were required to have written affirmative action program. Contractors with contracts beginning on or after December 1, 2003 for $100,000 or more must have written affirmative action programs.
Whereas the EEOC enforces the EEO/non-discrimination laws, the Affirmative Action laws and regulations applicable to federal government contractors are enforced by the Office of Federal Contract Compliance Programs (OFCCP).
While we will get a bit more into the nitty-gritty of some of these laws and regulations in the next few posts, I want to address a common question: Does Affirmative Action mean use of preferential hiring and quotas and wouldn’t that be discrimination or a form of reverse discrimination? No. While Affirmative Action does require taking sex or minority or veteran or disabled status into account, and while it does require taking affirmative steps to ensure recruiting, hiring and advancement of such persons, it does not require an employer to hire an unqualified minority, female, veteran or disabled candidate over a qualified candidate who is not a member of any of these classes. Furthermore there are no quotas. (Those are illegal, by the way). The stated objective is to promote diversity in the workplace and to ensure that recruiting, hiring and advancement of members of the aforementioned classes correspond as closely as possible to their percentage of the available workforce. (Please, while I welcome comments and feedback, I am not looking for political positions on the pros and cons or effectiveness or ineffectiveness of Affirmative Action. The objective of this post and subsequent ones is to provide employers with a general understanding of Affirmative Action and its requirements.)
OK, let’s end here for now. We’ll pick up this thread next week. See you then!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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