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Affirmative Action Plans

The existence of laws prohibiting discrimination in the workplace does not always guarantee that women, minorities, and other segments of the work force have equal employment opportunities. In an effort to help prevent discrimination and introduce more diversity into the workplace, some employers have adopted affirmative action plans. Affirmative action refers to outreach and recruitment methods that encourage minorities and other specific categories of the population to apply for jobs. The laws surrounding affirmative action in hiring are subject to change, however, as these policies are often challenged in the courts.

Some government agencies and most government contractors (those with more than 50 employees and government contracts worth more than $50,000) are required to use affirmative action plans when hiring. Private companies are generally free to decide on their own, but employers that discover a lack of diversity in their ranks after performing an audit may find such plans useful. Those planning to do business with the government will benefit from implementing an affirmative action plan (AAP) early, while those trying to reach new demographics may benefit from a similarly diverse work force.

For more information, see FindLaw's sections on Civil Rights and Employment Law.

Affirmative Action Plans: The Basics

Affirmative action plans are detailed guidelines for how an organization plans to actively seek out members who belong to a particular demographic group it believes is underrepresented. For example, an employer that discovers it lacks African-American employees (typically through an audit, one of the first steps) might put together an AAP with specific steps for addressing that demographic. This may include language on job advertisements urging minorities to apply, recruitment efforts in predominantly African-American neighborhoods, or a policy that favors African-Americans when all other qualifications among job applicants are equal.

Most AAPs conform to the Code of Federal Regulations (specifically 41 CFR 60-2), which sets forth certain affirmative action requirements for federal government contractors. An AAP must have the following components in order to comply with the CFR:

  • Organizational Profile: This not only identifies the gender and ethnicity of each employee, but maps out how they relate to one another (such as in the form of a flowchart)
  • Availability Determinations: Calculations of the percentage of target minorities both within the organization and in the general population who have the requisite skills for available positions
  • Comparison of Incumbency to Availability: Using the above calculations and a description of the methodology used, this will help determine tangible promotion and recruitment goals
  • Designation of Responsibility: Essentially, this defines the responsibilities of each manager or supervisor in realizing the goals of the AAP
  • List of Problem Areas: Based on the previous components, this is a list of areas of concern (i.e. underrepresentation)
  • Corrective Actions: Tangible, action-oriented programs for correcting the problem areas identified in the previous step
  • Internal Audit and Report: Personnel manager must measure the effectiveness of the AAP, document related activities, identify problems with the AAP, and determine the overall effectiveness of the AAP

The Department of Labor provides sample affirmative action programs in order to assist employers wishing to comply with the CFR.

Private Employers and Affirmative Action

Even though many employers do not need to have affirmative action plans, almost every employer is required to be an equal opportunity employer. This means that even though they are not required to actively seek out minority employees, companies are also not allowed to discriminate against minorities in their hiring, firing, or workplace policies. This means that a company cannot refuse to hire and cannot fire someone based on their race.

Still, some employers voluntarily adopt affirmative action policies and will make an extra effort to hire a diverse work force. Employers are advised to follow the rules established for government contractors (and discussed above) even if they don't plan on seeking government contracts, since it is a proven and legally defensible method. Once a company adopts an AAP, it should follow it closely in order to avoid lawsuits from potential employees. But keep in mind that discrimination claims with respect to the hiring process are difficult to prove, especially when there might be many qualified candidates from many races (and genders) for one open position.

Talk to a Lawyer

Matters of race, gender, and other protected characteristics can disrupt workplace harmony and even trigger lawsuits. If you are planning to implement an affirmative action plan in your organization, you may want to meet with an employment law attorney first.

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