Affirmative action refers to policies and practices aimed at reducing discrimination and increasing the representation of historically or currently disadvantaged groups in areas such as employment, education, and business. The goal of affirmative action is to promote equal opportunity and to counteract systemic discrimination and historical disadvantages faced by certain groups, including women, racial minorities, individuals with disabilities, and veterans. In the employment context, affirmative action includes recruitment and outreach measures, special training programs, and the detection, elimination, and prevention of discrimination. What constitutes a disadvantaged group may vary by geographic region, industry, and other factors.
Key Aspects of Affirmative Action in Employment
- Affirmative Action Programs: Federal law imposes specified mandatory affirmative action obligations on covered federal contractors. Contractors meeting applicable regulatory thresholds must have written Affirmative Action Programs, which contain various analyses of a contractor’s workforce, including some statistical analysis.
- Recruitment & Outreach: Under applicable federal laws, covered federal contractors must, as part of their Affirmative Action Programs, actively recruit and conduct outreach to covered underrepresented groups to attract a diverse pool of candidates.
- Hiring Goals v. Quotas: The affirmative action obligations for covered federal contractors do NOT permit quotas, preferences, or set asides. These actions are strictly forbidden. Placement goals (under Executive Order 11246), utilization goals (under Section 503 of the Rehabilitation Act), and hiring benchmarks (under Vietnam Era Veterans’ Readjustment Assistance Act) are not to be interpreted as a ceiling or floor for the employment of particular groups of persons but, rather, should serve as a benchmark against which the contractor measures the representation of persons within its workforce. Placement goals, utilization goals, and hiring benchmarks are not rigid or inflexible quotas to be met but, rather, standards of measurement of how a contractor is fulfilling its affirmative action obligations.
- Moreover, federal laws applicable to all employers specifically prohibit employers, including federal contractors, from using quotas or preferences based on race or sex.
- When a contractor fails to meet a utilization goal or hiring benchmark, the contractor assesses its employment practices and takes appropriate measures to address identified problem areas and remedy potential discrimination. Such remedies may include assessing and revising policies and practices that hinder employment opportunities, broadening recruitment and outreach to increase the diversity of applicant pools, and/or instituting training and/or apprenticeship programs to increase promotion opportunities and applications from underrepresented groups.
Rationale & Justification
- Historical Discrimination: Affirmative action seeks to address the effects of historical discrimination and systemic barriers that have disadvantaged certain groups in society.
- Promoting Diversity: Diversity is seen as beneficial for organizations and institutions, leading to a broader range of perspectives and experiences, which can enhance creativity, problem-solving, and innovation.
- Equal Opportunity: Affirmative action aims to eliminate existing discrimination and prevent future discrimination to create more equitable opportunities for all individuals, regardless of their background or characteristics.
Legal Framework
There is no legal consensus as to whether, or to what extent, the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, (Case No. 20–1199; June 29, 2023; abbreviated hereafter as “SFFA”), impacts employment law. In SFFA, the High Court held that the consideration of race in the admissions practices of the University of North Carolina and Harvard College violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 (a law that prohibits discrimination based on race, color, or national origin in programs or activities receiving federal financial assistance, including those conducted by colleges and universities). The decision did not address employment practices, such as the affirmative action practices described above. Therefore, many legal experts argue that the SFFA ruling does not impact the affirmative action obligations of government contractors. Nevertheless, employers must take care to ensure that their well-intentioned affirmative action practices closely follow federal rules and do not include prohibited discrimination.
Overall, affirmative action policies aim to foster a more inclusive and equitable society by addressing past and present disparities, although their implementation continues to be subject to debate and scrutiny.