|
|
Affirmative action is more than not discriminating. It is a set of positive steps that employers must or may use to promote equal employment opportunity and to eliminate discrimination. This article seeks to provide a working definition of affirmative action and to review the circumstances under which affirmative action is mandated.
I. What Is Affirmative Action?
Affirmative action can generally be described as the use of plans or practices to achieve increased representation of protected classes in the workplace.
Affirmative action does not equate with equal employment. Most employers, by state and federal law, are required to be equal opportunity employers. To be an equal opportunity employer is to refrain from discriminating against applicants and employees on the basis of a protected class such as a person's race, color, sex, religion, national origin, age or disability. By contrast, most employers are not required to take affirmative action. Affirmative action goes beyond merely refraining from discrimination. It involves proactive efforts by an employer to increase the number of minority, women and disabled workers in the work force.
The U.S. Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"), which administers and enforces the federally mandated affirmative action programs, gives insight into a working definition of affirmative action by defining as its mission:
- To ensure that companies doing business with the federal government comply with their contractual obligations to provide equal employment opportunity and to develop positive programs to recruit, hire, and promote workers who traditionally have been discriminated against in the job market – minorities, women, persons with disabilities, and Vietnam era and special disabled veterans.
OFCCP educational materials further note that:
- Affirmative action is a set of positive steps that employers use to promote equal employment opportunity and to eliminate discrimination. Those programs consist of problem identification, self-analysis and action oriented programs. Through problem identification, the contractor is enabled to identify potential problems or concentrations of women, minorities, persons with disabilities and Vietnam era and disabled veterans in the workplace, from the entry level to the executive suite. Through self-analysis, a contractor is able to determine the status of women and minorities at all levels of its enterprise and to precisely determine the causes of any problems identified. And through action oriented programs, an employer, where problems are identified, must institute efforts to eliminate any policies, procedure or practices that are discriminatory and take proactive measures, including recruitment, training, outreach, and the expansion of mentoring programs to include qualified women and minorities, the disabled and veterans.
On the state level, Minnesota administrative rules governing state mandated affirmative action programs lend insight to the definition of affirmative action by defining "affirmative action policy" and "affirmative action programs" as follows:
- Affirmative action policy means a managerial objective to eliminate all barriers to employment opportunity that are not based on specific job requirements. It refers also to the identification of barriers in the use of action – oriented programs to advance employment opportunities for women, minorities and qualified disabled individuals.
- Affirmative action program means a coherent set of goal-oriented management policies and procedures which implement a contractors affirmative action policy including the contractor's self examination of its work force and entire employment practices and policies, availability and utilization analyses, and the establishment of goals and timetables for the correction of any under-utilization of women, minorities and qualified disabled persons identified in the self-analysis.
II. Source Of Affirmative Action Obligations
Affirmative action requirements can be imposed on an employer in a number of ways: by federal or state law for government contractors and subcontractors; as part of a conciliation agreement with a state or federal agency; or by court order. In addition, some employers voluntarily adopt affirmative action plans in an effort to create a more balanced workforce. The major sources of statutory affirmative action obligations for Minnesota employers are the following statutes:
- Minnesota Human Rights Act, Minn. Stat. § 363.073;
- Executive Order 11246, Reprinted at 42 U.S.C.A. § 2000(e);
- Rehabilitation Act of 1973, 29 U.S.C.A. § 793; and
- Vietnam Era Veterans Readjustment Act of 1974, 38 U.S.C.A. § 2012.
III. Statutory Affirmative Action Obligations
A. Minnesota Requirements. Under the Minnesota Human Rights Act, businesses which have more than 40 full time employees on a single working day, at any time during the previous 12 months, must have a Certificate of Compliance issued by the Commissioner of the Department of Human Rights ("Department") before a state contract or agreement for goods or services in excess of $100,000 can be executed. Certificates are issued to businesses that have an affirmative action plan approved by the Commissioner of the Department for the employment of minorities, women and individuals with disabilities.
The Minnesota Department of Human Rights Compliance Services Section publishes a manual on how to develop an affirmative action plan. The manual is attached hereto as Exhibit A.
Any employer desiring a Certificate of Compliance must submit to the Department either: (1) an affirmative action plan in compliance with Minnesota administrative rules, or (2) letters or documentation establishing its compliance with federal or local agency rules together with an affirmative action program for disabled individuals. Certificates of Compliance are effective for two years.
A department or agency of the State of Minnesota may not execute a contract or agreement with a business unless the business has a certificate of compliance issued by the Department or the business certifies that it is in compliance with federal affirmative action requirements.
Certificates of Compliance may be suspended or revoked by the Department if the holder of a certificate has not made a good faith effort to implement an affirmative action plan that has been approved by the Department. If a contractor does not effectively implement an affirmative action plan approved by the Department or fails to make a good faith effort to do so, the Department may also refuse to approve subsequent plans submitted by that firm or business.
Any contract awarded by a state department or agency may be terminated because of suspension or revocation of a certificate based upon a contractor's failure to implement or make a good faith effort to implement an affirmative action plan. If a contract is somehow awarded to a person who does not have a contract compliance certificate, the Department may void the contract on behalf of the State.
B. Federal Law Requirements. The OFCCP enforces Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act. Taken together, these laws ban discrimination and require federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam Era or special disabled veteran. The OFCCP jurisdiction covers approximately 26 million or nearly 22% of the total civilian workforce (92,500 non-construction establishments and 100,000 construction establishments).
Generally, Executive Order 11246 requires the development and implementation of affirmative action plans by contractors who have aggregate contracts of $50,000 or more with the federal government in a 12-month period and who have 50 or more employees. Each subcontractor of the contractor must also prepare an affirmative action plan. The Rehabilitation Act of 1974 requires contractors with 50 or more employees and federal contracts worth at least $50,000 on an individual basis to develop, prepare and implement an affirmative action plan for the employment of disabled individuals. And, the Vietnam Veterans Readjustment Act of 1974 requires government contractors with 50 or more employees and federal contracts worth at least $50,000 on an individual basis to develop and implement an affirmative action plan for the employment of veterans.
Under federal law, affirmative action plans need not receive advanced approval. However, if a plan is required, it must apply to all of an employer's work, all of its facilities and all of its employees; not just those involved with the federal contract or subcontract.
1. Executive Order 11246
The affirmative action requirements are different under Executive Order 11246 for construction contractors and non-construction contractors.
a. For Supply and Service Contractors
Non-construction (service and supply) contractors with 50 or more employees and government contracts of $50,000 or more are required, under Executive Order 11246, to develop and implement a written affirmative action program (AAP) for each establishment. The regulations define an AAP as a "set of specific and result-oriented procedures to which a contractor commits itself to apply every good faith effort." The AAP is developed by the contractor (with technical assistance from OFCCP if requested) to assist the contractor in a self-audit of its workforce. The AAP is kept on file and carried out by the contractor; it is submitted to OFCCP only if the agency requests it for the purpose of conducting a compliance review.
The AAP identifies those areas, if any, in the contractor's workforce that reflect utilization of women and minorities. The regulations at 41 CFR 60-2.15(b) define under-utilization as "having fewer minorities or women in a particular job group than would reasonably be expected by their availability." When determining availability of women and minorities, contractors consider, among other factors, the presence of minorities and women having requisite skills in an area in which the contractor can reasonably recruit.
Based on the utilization analyses under Executive Order 11246 and the availability of qualified individuals, the contractors establish goals to reduce or overcome the under-utilization. Good faith efforts may include expanded efforts in outreach, recruitment, training and other activities to increase the pool of qualified minorities and females. The actual selection is to be made on a nondiscriminatory basis.
b. For Construction Contractors
OFCCP has established a distinct approach to affirmative action for the construction industry due to the fluid and temporary nature of the construction workforce. In contrast to the service and supply affirmative action program, OFCCP, rather than the contractor, establishes goals and specifies affirmative action which must be undertaken by federal and federally assisted construction contractors. OFCCP issued specific national goals for women. The female goal of 6.9 percent was extended indefinitely in 1990 and remains in effect today. Construction contractors are not required to develop written affirmative action programs. The regulations enumerate the good faith steps construction contractors must take in order to increase the utilization of minorities and women in the skilled trades.
c. No Quotas Or Discrimination In Hiring
The OFCCP numerical goals are established based on the availability of qualified applicants in the job market or qualified candidates in the employer's workforce. Executive Order numerical goals do not create set-asides for specific groups, nor are they designed to achieve proportional representation or equal results. Rather, the goal-setting process in affirmative action planning is used to target and measure the effectiveness of affirmative action efforts to eradicate and prevent discrimination. The Executive Order and its supporting regulations do not authorize OFCCP to penalize contractors for not meeting goals. The regulation at 41 CFR 60-2.16(e) specifically prohibits quota and preferential hiring and promotions under the guise of affirmative action numerical goals. In other words, discrimination in the selection decision is prohibited.
d. Equal Employment Clause
In addition to the above affirmative action requirements, Executive Order 11246, requires federal contractors and subcontractors with contracts of at least $10,000 in a 12-month period (with or without) aggregation, to include an equal employment opportunity clause in covered contracts and subcontracts.
2. Rehabilitation Act of 1973
The Rehabilitation Act of 1973 requires federal contractors and subcontractors with 50 or more employees having a contract of $50,000 or more to prepare written affirmative action plans. Additionally, those federal contractors and subcontractors with any single contract of $2,500 or more must include an affirmative action clause in their covered contracts and subcontracts.
3. Vietnam Era Veterans Readjustment Assistance Act (VEVRAA)
Federal contractors and subcontractors with 50 or more employees and a contract of $50,000 or more must create a written affirmative action plan to provide equal opportunity and affirmative action for Vietnam era veterans, special disabled veterans and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.
VEVRAA also requires federal contractors and subcontractors to list with local state employment services all employment openings except for executive and top management jobs; jobs which the contractor expects to fill from within; and jobs lasting three days or less. In addition, VEVRAA requires federal contractors and subcontractors with a contract for $10,000 or more to include affirmative action clauses in covered contracts and subcontracts and to file a VETS-100 report annually.
IV. Conclusion
An employer should carefully consider the obligations it will assume when bidding to do work covered by state or federal affirmative action mandates. The cost of compliance should be factored into the analysis of whether the contract will be profitable. Employers who are already party to contracts imposing affirmative action requirements should adopt procedures to monitor and maintain compliance as noncompliance can result in contract cancellation, termination or suspension, back pay for workers who were discriminated against, and ineligibility for participation in future government contracts.
|
