In order to have effective Affirmative Action policies and stay on the right side of Equal Employment Opportunity (EEO) laws and regulations, it is critical to understand the difference between several sets of concepts that are distinct, but often erroneously used interchangeably. Frequently, the assumption is that key staff understand these words or phrases, but in practice, terms relating to EEO are misunderstood by not only hiring managers, but often human resources professionals as well, and even among government compliance officers. When EEO and Affirmative Action concepts are not clearly defined, it can lead to dysfunction in the workplace, deteriorating work product and even a violation of the law. This, of course, can lead to great problems during an audit by the OFCCP.
In order to achieve compliance and remain there, it makes sense that managers, supervisors and anyone within the chain of any decision-making process understand all terms associated with these efforts. If one does not understand the foundation, it is difficult to build more complicated compliance requirements on top of that. During annual EEO training, it is interesting to ask managers and supervisors what fundamental terms mean and then observe confusion in the room. Even if these terms seem elementary to those in the compliance profession, so often the simple communication of defining them with specificity is never done. Thus, key individuals do not have a clear understanding of their obligations.
Concepts that are important to define include the difference between Equal Employment Opportunity and Affirmative Action, goals versus quotas, and disparate treatment as compared to disparate impact. The misconceptions with Affirmative Action can range broadly, but typically involve a belief that certain groups are given hiring (or promotion) preference, must be hired (or promoted) based simply on race or sex (quotas) or that only “protected classes” are safeguarded from discrimination. Many confuse the illegal (in most circumstances) action of a quota with the affirmative action based goal. Many also do not know that discrimination can happen without intent. It is dangerous to have these misconceptions in the workplace because one cannot expect managers and supervisors to comply with laws that they do not fully understand.
Equal Employment Opportunity laws prohibit discrimination. In summary, Executive Order 11246 prohibits businesses “from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin.” (These are the “prohibited factors” enforced by the OFCCP.) Affirmative Action ensures that equal opportunity is provided in all aspects of employment. 1 Although the definition of these two concepts may sound similar, each requires very different actions. In order to comply with EEO laws, personnel decisions cannot be based on sex, race, ethnicity, etc., regardless of the sex, race, ethnicity, etc. of the individual(s). These laws apply equally to minorities and non-minorities, as well as females and males. Once a personnel decision is made on race (or sex, etc.) for example, Executive Order 11246 has likely been violated. OFCCP will pursue enforcement action against any company that does so, regardless of the specific race, ethnicity or sex of the victim(s).
Affirmative Action relates to “opportunity.” Affirmative Action Programs (or AAPs) are required only for groups that have historically not had (or presently may not have) the same opportunities as other groups. An AAP is a “management tool designed to ensure equal employment opportunity.” 2 Affirmative Action Programs “evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools.” 3 Therefore, when using this tool, the AAP, one can see whether a company’s labor force is consistent with those individuals who are available and qualified (at least according to census data) to perform those jobs. Availability depends on the type of job and where a company draws its applicants for that job. It could be a local area or nationwide availability, depending on the facts. Over time, absent discrimination, a company’s workforce will reflect the racial, gender and ethnic makeup from the appropriate labor pools.
On the other hand, if the evaluation of the workforce reveals inconsistencies with availability, then goals to bring in additional qualified individuals who are members of the groups protected by the affirmative action plans are established. The term “goal” is an important one to define for all personnel that have compliance responsibilities. Many confuse goals with quotas, i.e., taking a personnel action based on someone’s status in a particular group. Remember that having a goal does not mean that the company has engaged in discrimination. The AAP is a tool. Any underutilization (less women, minorities, veterans or individuals with disabilities than one would expect) in the workforce signals that additional steps are necessary to increase the numbers of these groups in selection pools. With an increase of qualified individuals in the selection pools, an increase in the workforce will follow. Perhaps additional measures to reach out to particular groups are necessary. Perhaps the jobs have changed and the census codes are not aligned properly. The AAP reveals information about the workforce and where the company may need to take additional action. The results may in fact lead a company to discover areas of discrimination that it would not have otherwise found.
Goals in the AAP show the company specifically where the demographics of the workforce do not reflect what would be expected for each job category. If the workforce does not reflect the demographics available for its jobs, then the company needs to determine why not. Without an AAP, many companies would not even be aware that equal employment opportunities are not taking place. Once opportunities are expanded to groups covered by an Affirmative Action Program, there should be an increase in qualified individuals to place into the job, and goals are expected to dissipate. However, if a placement decision is made on the basis of one of the prohibited factors in order to make the goals go away, then the company has probably just violated EEO laws.
Finally, it is worth noting that OFCCP typically evaluates cases of systemic discrimination, and very often companies and personnel are unaware that discrimination is taking place at the workplace because a complaint may never have been made. There are two basic theories of discrimination, “disparate treatment” and “disparate impact.” If a company makes personnel decisions intentionally based on one of the prohibited factors, that is an example of “disparate treatment.” Many understand this theory of discrimination. However, many erroneously believe that this is the only manner in which a company can discriminate. Often, company officials do not realize that discrimination is frequently found by statistical analyses, where one group does not fare as well as others. For example, males are hired at a rate of 20%, but females are hired at a rate of 5%, or vice versa. Without a nondiscriminatory reason for the difference, the OFCCP has an excellent case for unintentional discrimination or “disparate impact.” Many individuals are surprised that intent need not be a factor in determining whether discrimination has occurred.
Once the terms described above are understood by those involved in the personnel processes of federal contractors, it typically makes compliance much easier to accomplish. Ensure that company officials and hiring managers understand the purpose of the Affirmative Action Plan and how it can be used to help make the workforce more diverse with the most qualified individuals available. Most importantly, arm your team with the knowledge they need in order to bring on the best possible workforce and stay on the right side of compliance laws.
This article is intended for information only. It is not legal advice and should not be relied upon as such. For more information, please contact Lisa Kaiser at Lisa.Kaiser@Kaiser-Law-Group.com
2. TITLE 41 CFR 60-2.10. ↵