Equal Employment Opportunity and Affirmative Action

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RESPONSE:

1. Keeping in mind public sector and private sector employers, and how it interacts with Title VII requirements of Equal Employment Opportunity:

BACKGROUND INFORMATION:

Affirmative action (or positive discrimination) is a policy or a program whose stated goal is to redress past or present discrimination through active measures to ensure equal opportunity, generally concerning education, employment or seats in parliament and/or government. Affirmative action began as a corrective measure[2] for governmental and social injustices against demographic groups that have been said to be subjected to discrimination in areas such as employment and education. The stated goal of affirmative action is to counteract past and present discrimination sufficiently that the power elite will reflect the demographics of society at large, at which point such a strategy will no longer be necessary. http://en.wikipedia.org/wiki/Affirmative_action_in_the_United_States

However, initially, affirmative action policies intended to help black Americans began fairly recently. The policies are derived from several sources: laws, executive orders, and court decisions. They have developed over the last 30 years, and have often been controversial. The Civil Rights Act of 1964 contained a section on equal employment opportunity. That section, called Title VII, made it illegal for employers with 25 or more employees to "fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin...." Title VII also stated that none of its provisions should be interpreted as requiring "preferential treatment" for any individual or group because of race, color, religion, sex, or national origin. But it provided for "affirmative action" in some cases of discrimination. Title VII is sometimes referred to by authors who argue against affirmative action programs, but the situation became much more complicated as executive orders and court decisions appeared. http://users.telerama.com/~jdehullu/action/aahist.htm

Specifically, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Title VII) mandates that no State deny any person the "equal protection of the laws," which is often used in many affirmative action court cases. In the United States, affirmative action occurs in school admissions, job hiring, and government and corporate contracts. Its intended beneficiaries are ethnic minorities, women, people with disabilities and veterans. Affirmative action has been the subject of numerous court cases, and has been contested on constitutional grounds. A recent Supreme Court ruling in Michigan against some forms of affirmative action has required some colleges to set new admissions criteria. http://en.wikipedia.org/wiki/Affirmative_action_in_the_United_States

Discrimination is the illegal treatment of a person or group based on race, sex, or other protected-class status. There are two types of discrimination: disparate treatment and disparate impact. Disparate treatment means treating a person differently because of his or her race, sex, disability, or other protected-class status. Disparate impact, a less blatant form of discrimination, means a practice, which has a greater negative effect on members of protected classes than on others. http://www2.ric.edu/affirmativeaction/terms.php

1. What employers are subject to affirmative action plans and why?

Compliance is a situation in which an agency fully meets the requirements of laws, rules and regulations and court cases, which mandate nondiscrimination and affirmative action. The Equal Employment Opportunity Commission (EEOC) requires the EEO-1 Report annually from private employers with 100 or more employees and federal contractors with federal government contracts of $50,000 or more and 50 or more employees. The EEO-1 Report--the principal reporting form by which employers provide the federal government with a count of their workforces by ethnicity, race, and gender, divided into job categories--has changed, and covered employers will have to use the revised format in 2007. The EEO-1 final rule published by the EEOC states that all covered employers must use the new EEO-1 reporting format with the report due in September 2007. However, EEOC has stated that covered employers need not resurvey their workforce in order to complete the EEO-1 Report due in September 2007. As a result, employers will need to use the new EEO-1 Form in 2007, but will not need to resurvey and report on new race/ethnic categories for their workforce until they begin to prepare for the September 2008 EEO-1. http://hr.blr.com/display.cfm/id/75152

Why? It is to eliminate discrimination, which is the illegal treatment of a person or group based on race, sex, or other protected-class status. There are two types of discrimination: disparate treatment and disparate impact. Disparate treatment means treating a person differently because of his or her race, sex, disability, or other protected-class status. Disparate impact, a less blatant form of discrimination, means a practice, which has a greater negative effect on members of protected classes than on others. http://www2.ric.edu/affirmativeaction/terms.php

For example, for federal contractors and subcontractors, affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. Affirmative actions include training programs, outreach efforts, and other positive steps. These procedures should be incorporated into the company's written personnel policies. Employers with written affirmative action programs must implement them, keep them on file and update them annually. http://www.dol.gov/dol/topic/hiring/affirmativeact.htm

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 ...