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Affirmative Action

What is Affirmative Action in the Employment Context?

In an employment context, affirmative action gives training, hiring, or promoting preference to disadvantaged groups and/or underrepresented groups in the field of work. Typically, the groups are women and minorities for the purpose. The overall purpose is to have equal representation and encourage diversity in the workplace, while understanding that the field has certain requirements.

Is Affirmative Action Permissible and Appropriate?

Federal law permits affirmative action, but only under certain circumstances and with limitations. For instance, under the Rehabilitation Act, federal contractors and subcontractors are prohibited from discrimination against individuals with disabilities, and are required to take affirmative action for this group of people.

Affirmative action is appropriate in several situations. A court can order affirmative action as a remedy to past discrimination. Employers may also be entitled to enact affirmative action to remedy discrimination. Employers can also use affirmative action to create balance in an otherwise underrepresented workplace or field.

What are the Requirements to Use Affirmative Action?

Affirmative action plans must serve a compelling purpose such as remedying past or present discrimination. But these plans cannot impede the rights of others. An example of this is firing a non-minority employee so that a minority individual could be hired. Essentially, affirmative action in the workplace is not used to hire unqualified employees solely due to their status as a minority, but to make sure that minorities with the qualifications to fulfill the position have a chance to be hired.

In the past, discrimination was a natural part of the hiring process with many qualified employees turned away due to their race and/or gender. Overtime, it became harder for minority applicants to discover or even submit an application for jobs they would qualify.

What is an Affirmative Action Plan?

An Affirmative Action Plan (AAP) is a policy set by an employer to eliminate employment discrimination. It establishes the guidelines for recruiting minority candidates and women.

What is Included in an AAP?

If an employer finds that women and minorities are being excluded by their employment policies, the employer may wish to establish an AAP. This approach aims to rectify any problems the employer sees by creating new policies and practices. The employer sets goals for its new policies in the AAP.

Is My Employer Required to Have an AAP?

No, your employer is not required to have an AAP. There is no requirement to create an AAP in Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. However, some employers who have government contracts may be required to establish AAPs. Federal contractors whose contracts exceed $50,000 (with at least 50 employees) must develop an AAP. Some states may do the same. Also, your employer may choose to establish an AAP voluntarily.

What about Recent Developments?

The Supreme Court has ruled that affirmative action programs will be strongly scrutinized and must be narrowly focused on a governmental interest. Most government employers and companies are eliminating references to goals/timetables for fear they will seem like quotas. Now, companies with contracts with the federal government only have to make good faith efforts to hire those best suited for the job. These companies must also try to be responsive to the underrepresented groups. Because of the Supreme Court's questioning of affirmative action programs, companies are changing their policies to remove any reference to formal AAPs.  

Why Do I Need an Experienced Employment Law Attorney?

The laws on affirmative action can be a bit of a gray area, which is why consulting with an employment lawyer is a wise decision. An experienced discrimination lawyers would be able to inform you of your rights as a worker. It may be helpful for you to consult the human resources department in your workplace and to review any company handbooks. 

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