Chapter 5
Affirmative Action
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Learning Objectives (1)
 Understand the concept of affirmative action,
why it was created, and studies concluding there
needs to be more than a passive approach to
achieve equal employment opportunity
 Discuss why it is controversial, and arguments
pro and con.
 Name and distinguish the three types of
Affirmative Action programs and plans
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Learning Objectives (2)
 Understand the circumstances that can give rise
to affirmative action, and safeguards to protect
legitimate expectations of majority workers
 Discover the range of specific tactics to
overcome past discrimination
 Define ’reverse discrimination’ and tell how it
relates to affirmative action
 Explain the value of workforce diversity, and give
examples of ways to achieve it
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What Is Affirmative Action?
 Proactive steps to hire qualified women,
minorities, or other statutorily mandated groups
who are underrepresented in the workplace
 Based on finding of previous exclusion
 Specific tactics an employer can use
 Expand outreach, recruitment to new groups
 Mentoring, management training, and development
 Hiring, training, promoting from groups that have
tended to be left out of those processes
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Does AA help/hinder progress toward
equality of opportunity?
 Pro: systems causing minority oppression
endured for hundreds of years; continuing
evidence of opportunity gaps (glass half-empty);
demonstrated successes are everywhere; threat
of Affirmative Action is important deterrent
 Con: system is working (glass half-full); if
discrimination is wrong, it’s always wrong;
continuing stigma attaches to minority
successes; government interference in the
economy.
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Employment Research Findings
 Women and minorities still lag behind in terms of
opportunities, pay and promotions
 Research shows that people tend to notice value
more quickly in someone who looks like them
 Almost 90% of jobs are filled through word-ofmouth – fewer minorities and women being able
to take advantage of those networks
 Glass Ceiling Commission Report: white woman
half of workforce but 5% of senior corporate jobs
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How Do Affirmative Action Obligations
Arise?
 There are three ways in which affirmative action
obligations arise:
 Through Executive Order 11246 (government
contractors)
 Judicially, as a remedy for a persistent finding of
discrimination under Title VII
 Voluntarily, affirmative action established by an
employer or union
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E.O. 11246 Provisions
 Requires federal government contractors
(suppliers of goods, services) to remedy
inadequate representation of women and
minorities in their workplace
 Enforced by the Office of Federal Contract
Compliance Programs (OFCCP)
 Increases compliance requirements based on
the size ($) of the contract(s)
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EO Affirmative Action Plans (1)
 Affirmative action plan: Must be developed
according to the rules set forth in the Code of
Federal Regulations part 60-2
 http://www.dol.gov/dol/cfr/Title_41/Chapter_60.htm
 Underrepresentation / Underutilization:
Significantly fewer minorities or woman in the
workplace than relevant statistics indicate are
available
 Or their qualifications indicate they should be working
at better jobs
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EO Affirmative Action Plans (2)
 Organizational profile: Staffing patterns
showing organizational units
 Their relationship to each other; and gender, race
 Ethnic composition
 Job group analysis: Combines job titles with
similar content, wage rates, and opportunities
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EO Affirmative Action Plans (3)
 Availability: Minorities and women in a
geographic area who are qualified for a
particular position
 Factors used to determine availability:
 The percentage of minorities or women with requisite
skills in the reasonable recruitment area
 The percentage of minorities or women among those
promotable, transferable, and trainable within the
contractor’s organization
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EO Affirmative Action Plans (4)
 Placement goal: Percentage of women and/or
minorities to be hired or promoted to correct
underrepresentation
 Based on reasonable availability in the geographic
area
 Quotas are expressly forbidden
 Action-oriented, more than business-as-usual
 OFCCP audits: good-faith, measurable progress
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EO Affirmative Action Plans (5)
 Corporate management compliance
evaluations: Evaluations of mid- and seniorlevel employee advancement for artificial
barriers to advancement of women and
minorities
 OFCCP Equal Opportunity Survey every year
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Penalties for Noncompliance (1)
 What is important to OFCCP?
 The nature and extent of the contractor’s good-faith
affirmative action activities
 The appropriateness of those activities to the
problems the contractor has identified in the
workplace
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Penalties for Noncompliance (2)
 The Department of Labor/OFCCP or the
appropriate contracting agency can impose a
number of monetary penalties on the employer,
including “debarment” (banning company from
future contracts for a period of time)
 The DOL/OFCCP must make reasonable efforts
to secure compliance by conference,
conciliation, mediation, and persuasion before
requesting the U.S. Attorney General to act, or
before canceling or surrendering a contract
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Judicial Affirmative Action
 Judicial affirmative action: Affirmative action
ordered by a court, rather than arising from
Executive Order 11246
 There are no specific requirements as to what
form an affirmative action plan must take
 Creatures of judicial remedy: context is key
 Case: Local 28, Sheet Metal Workers v. E.E.O.C.
 Scenario 1
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Voluntary Affirmative Action
 Employer or union institutes affirmative action plan
on it own, compelled by neither EO or court.
 Proactive measure to avoid future discrimination
claims
 Scenario 2
 Plans must be carefully designed:
 Temporary
 Narrowly tailored to address under-representation
 No quotas
 Not “unnecessarily trammel” rights of majority workers
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Reverse Discrimination
 Reverse discrimination: Claim brought by
majority member
 who feels adversely affected by the use of an
employer’s affirmative action plan
 mistakenly considered as the flip side of affirmative
action
 Scenario 3
 Reverse discrimination accounts for only about 3
percent of the charges filed with EEOC
 Case: Johnson v. Transportation Agency, Santa Clara County, CA
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Affirmative Action and Veterans
 Jobs for Veterans Act of 2002.
 Federal contractors must take affirmative action
to hire and promote qualified veterans.
 Under the law, generally, “qualified targeted
veterans are entitled to priority for referral to
federal contractor job openings”
 Also administered by OFCCP
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Valuing Diversity/Multiculturalism
 Hudson Institute Report: Workforce 2000
 Valuing diversity: Learning to accept and
appreciate those who are different from the
majority and value their contributions to the
workplace
 Mirrors population, workforce changes
 Also reflects rise in buying power of diverse customer
base
 Decisions with limited input likely to be sub-optimal
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