Implementing Legal and Effective Affirmative Action Plans

Affirmative Action is a set of policies or practices designed to increase an employer’s representation of employee groups that have been excluded or restricted in the past. These previously excluded or restricted groups are generally racial and ethnic minorities, women, and persons with disabilities. Additionally, some veterans are covered by federal contractors and sub-contractors.

Why use Affirmative Action Programs?

Organizations develop affirmative action plans to build diverse workplaces and comply with equal opportunity laws. Affirmative action promotes diversity and diverse workplaces are more innovative and productive because they take advantage of all the talent and experience in the labor force. Additionally, diverse workplaces allow companies to serve, retain and market to diverse customer bases both locally and globally. Lastly, organizations that use affirmative action plans are less likely to violate equal opportunity laws in their employment practices.

The Plan

Under Title VII of the Civil Right Acts of 1964, discrimination against any individual based on race, religion, sex, or national origin is illegal.  This means that all employees (including those individuals who have not traditionally faced discrimination) are protected by the law. Nevertheless, the EEOC recognizes that certain employee groups are presently and historically affected by discrimination to a greater degree than others and that affirmative action programs may be necessary to right these wrongs.

Affirmative action plans are only legal if there is a specific need and a specific plan to address that need. Organizations must review their employment practices to determine if discrimination exists and whether affirmative action can correct it.

The EEOC recommends a three-step process to develop a legal affirmative action plan:

• A reasonable self-analysis
• A reasonable basis for concluding that affirmative action is appropriate
• and a reasonable action plan

Self-Analysis

The self-analysis determines if employment practices have discriminated against previously excluded or restricted groups or if current policies have left past discrimination uncorrected.

The self-analysis should use the following methods to investigate:

• An analysis of employment practices including hiring, promotion, merit increases, demotion, discharge, layoff, etc.
• An analysis of local, state, and federal laws concerning workplace discrimination.
• A comparison of the organization’s workforce with the labor force in the standard metropolitan statistical area to see if minority groups, disabled employees, and women are underrepresented.  A comparison with the national civilian labor force or the demographics of the general population may also be helpful in this analysis.
• The Department of Labor’s Uniform Guidelines for Employee Selection.
• Any other reasonable method which uncovers evidence of past employment practices.

There is no specific method for conducting a self-analysis.  Any technique that results in a thorough assessment of employment practices and their present and past effect is acceptable.

Reasonable Basis for Affirmative Action

The data collected from the self-analysis is used to determine if there is a reasonable basis for affirmative action. To establish a reasonable basis, there are three factors employers should analyze.

• Adverse Impact

Did the organization’s policies and practices have a disproportionately negative impact on minority groups, disabled employees, or women?   Adverse impact is usually unintentional. For example, requiring high school diplomas for a job without a business necessity might disadvantage some employee groups.  If a high school diploma has not been proven to influence future job performance, then it should not be used as criteria for the job.

The 4/5^th’s rule is commonly used to determine adverse impact.  If any employee group is selected at a rate of less than 80% of the group with the highest selection rate, then adverse impact has likely occurred. 

• Disparate treatment

Did the employer’s policies and procedures treat people differently based on race, color, sex, or national origin? For example, if an organization requires a credit check of African American applicants, but not of Caucasian ones, then it is engaging in disparate treatment.

• Past Discrimination

Do the organization’s current policies and procedures leave past discrimination uncorrected? For instance, if promotions are based on experience, and some employee groups have less experience due to past discrimination, then the policy continues to perpetuate unfair treatment.

Employers may find reasonable basis for affirmative action without an admission or finding of discrimination.  Additionally, organizations do not need to find a violation of civil rights law to determine that affirmative action is appropriate. Reasonable basis may be found for some jobs and not others.  For example, the self-analysis may find no basis for affirmative action in warehouse jobs but find reasonable basis in administrative positions.

Writing a Reasonable Action Plan

If reasonable basis is found, the next step is a reasonable action plan. Any reasonable action plan is designed with the purpose of breaking down old patterns of inequity and overcoming the effects of past discrimination.

• The plan must be designed to solve the issues discovered in the self-analysis and prevent future issues from occurring.
• The plan must be specific and address the specific job classifications and locations where the problems have occurred.
• The plan must be “concerted and reasoned”. 

Reasonable plans cannot contain arbitrary and isolated actions.  It should have specific goals and objectives and the specific steps to achieve these goals.

• Goals should eliminate the effects of past discrimination.
• Goals should eliminate adverse impact or disparate treatment.
• Goals should find available qualified applicants.

Affirmative action plans must avoid unnecessary restrictions on applicants or employees who are not members of previously excluded groups.  These groups should have reasonable opportunities for employment and advancement. For instance, a training program that only admits women and minorities would be considered both an unreasonable action and illegal.

Additionally, plans cannot discharge an employee not covered by the affirmative action program to hire a covered employee. For instance, a white man cannot have his employment terminated with the express purpose of hiring a minority or female employee to replace him.

The plan must only remain in effect long enough to achieve its objective.  It should be structured with an internal audit and reporting system so that the organization can determine when the plan has met its objective and may be terminated. Plans should be current.  When a plan reaches its expiration date, a new analysis should be undertaken, and a new plan written.

Effective Affirmative Action Strategies

Affirmative action plans take advantage of many different effective strategies.

Recruitment Programs

Most successful affirmative action plans use recruitment programs to attract qualified candidates from previously excluded groups.

Effective recruitment programs:

• Advertise in magazines and on websites that cater to members of the previously excluded group.
• Post to diverse job boards.
• Offer internships and scholarships to members of previously excluded groups and reach out to student groups at colleges and universities.
• Ask for referrals from current employees.
• Define your commitment to equal opportunity and diversity on the company website and social media platforms.

Interviewing and Hiring

Affirmative action has its greatest effect in the interviewing and hiring process.  Interview as many qualified candidates as possible from the previously excluded and restricted groups determined by the plan. Form a diverse interviewing panel to reduce the unconscious bias that exists in the interviewing process. Ensure that interviewing questions assess only the core responsibilities of the job to reduce bias.

Affirmative action plans may include specific hiring metrics.  If an organization wishes to increase its female representation to 50%, it may specifically mandate that 3 out of every 5 open positions for the next 5 years go to qualified female candidates.  This plan is legal if women were determined to be a previously excluded or restricted group by the self-appraisal.

However, if the plan were to mandate that every open position go to female candidates, then it would be illegal because men must have reasonable opportunities for employment and advancement for a plan to be legal.

Promotions and Internal Opportunities

Advancing previously excluded groups into leadership, management and other critical positions is a vital aspect of affirmative action programs.

An effective plan should:

• Ensure that qualified members of affected groups are included in the pool of candidates considered for a position.
• Establish mentorship programs for previously excluded groups to advance the skills needed for management positions.
• Provide formal and informal on the job training to minorities and women so they have the skills to advance to more important roles in the organization.
• Offer career counseling to ensure employees understand the opportunities available to them.
• Provide continuing education programs to minorities and women to provide the skills needed for promotion to higher level positions.

Elimination or Revision of Selection Procedures

Selection procedures and job requirements often inhibit organizations from taking affirmative action.  When the labor pool of covered employees does not have the skills necessary for the job, selection procedures and job requirements must be revised.

For instance, if a trucking company does a self-analysis and finds that it has very few female drivers, it may also find that there are very few women in the labor pool with the credentials and skills necessary to be a driver. The trucking company could start an apprenticeship program that provides the training and experience required for the job and recruit women for the position.

Organizations should review all criteria used in the selection process.  For instance, some intelligence tests use questions that discriminate against persons of color. Additionally, criteria used to make employment decisions should be job-related.  For instance, requiring educational degrees and certifications that have no bearing on the job may exclude minorities unnecessarily. Or requiring a test of strength without a clearly defined business necessity may disadvantage disabled employees, some minority groups, and women.

Federal Contractors and Sub-Contractors

The following federal contractors and subcontractors must implement affirmative action plans by law:

• Non-construction businesses with 50 or more employees and at least one federal government contract of $50,000.
• Construction businesses with one contract of $10,000 or more.

These businesses must:

• Recruit and advance qualified minorities, women, persons with disabilities, and covered veterans.
• Include training, outreach efforts, and other positive steps.
• Incorporate affirmative action plans into written personnel policies.
• Implement plans, keep them on file, and update them annually.
• Follow federal reporting guidelines.
• Meet other mandates established by Executive Order 11246 and the Rehabilitation Act of 1973.

Businesses with 150 or more employees and at least one contract of $150,000 must also follow the guidelines of the Vietnam Era Veterans’ Readjustment Assistance Act. Affirmative action plans implemented by federal contractors and subcontractors are far more closely monitored than voluntary plans.  Businesses should closely follow the guidelines published by the Department of Labor and seek legal assistance if necessary.

In Conclusion

Affirmative action programs are one of the most effective ways to promote diversity and comply with equal opportunity laws. Effective programs adhere to the spirit of civil rights law and provide opportunities for previously excluded and restricted employee groups. Affirmative action plans can promote a strong, legal, and ethical workplace.  Properly applied, they can make organizations more productive, innovative, and better able to survive in today’s quickly changing marketplace.

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