Affirmative Action Plans

Editor's Note: Employers receiving money from the federal government most likely need a written affirmative action plan (AAP) in place.

David B. WeisenfeldOverview: While there has been a good deal of debate over the future of affirmative action, some employers must still have a written AAP. These include:

  • Nonconstruction contractors or subcontractors with 50 or more employees and contracts of $50,000 or more;
  • Construction contractors with contracts valued at $10,000 or more; and
  • Employers under a court-imposed obligation to remedy past discrimination.

It is important to note that not all affirmative action requirements involve minorities and women. Under federal regulations, employers with $10,000 in government contracts must take affirmative action for individuals with disabilities under the Rehabilitation Act of 1973. Meanwhile, employers with such contracts of $25,000 or more must take affirmative action on behalf of veterans who served during the Vietnam Era.

An AAP should document the employer's equal employment opportunity (EEO) policy; explain why the plan is needed; avoid strict numerical quotas; and show how the plan will solve the problem of underutilization of protected groups without injuring the rights of majority employees. The employer also should designate a company officer who is responsible for reviewing, implementing and auditing the AAP.

The federal government oversees affirmative action planning through the Office of Federal Contract Compliance Programs (OFCCP), which is a branch of the US Department of Labor. The OFCCP has the authority to provide remedies for affirmative action violations, including substantial cash settlements plus placing a ban on the receipt of federal funds.

Trends: A few states have prohibited the consideration of race in government hiring in recent years, but some of these bans are being challenged in the courts. The Supreme Court upheld Michigan's voter-approved affirmative action ban in 2014, and issued another ruling in Fisher v. Texas that could scale back the use of affirmative action plans by public colleges and universities.

Author: David B. Weisenfeld, JD, Legal Editor

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