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Affirmative Action

Affirmative action is the legal term for any program that grants preferences in training, hiring, or promotion for women or minority group members. Affirmative action measures may be ordered by a court as a remedy for proven discrimination by a specific employer. More commonly, however, an employer will adopt affirmative action measures either voluntarily, because of a perceived imbalance in the workplace, or because it is required to do so by state or federal law.

Voluntary affirmative action may be adopted by an employer only to remedy past discrimination. Therefore, an employer who adopts such a plan must be able to show either that the employer itself formerly discriminated against women or minority group members-shown by the dearth of women or minority group member in its workforce or higher-level positions-or that women or minority group members have traditionally been discriminated against in that particular industry, and in that geographic area.

Once the employer has established a history of discrimination, it may attempt to remedy that discrimination by, for example, making gender or minority group membership a factor in deciding whom to hire or promote to a particular position, or setting hiring goals to increase the number of women or minority group members in the workforce. However, an employer may not adopt a plan that unnecessarily trammels the rights of white or male employees. An affirmative action program may not require that white or male employees be fired so that women or minority group members may have the positions, mandate that only women or minority group members will be hired or promoted to certain positions, or state that one woman or minority group member must be hired or promoted for each white or male employee hired or promoted.

Many employers who use testing as an aid in making hiring or promotion decisions have also manipulated test scores in an effort to increase the hiring or promotion of certain groups, by automatically adding points to the scores of women or minority group members, giving the test scores of women or minority group members different weights in the decision-making process than those of men or white employees or applicants, or using race norming, the popular term for comparing the test scores of women or minority group members only to those of other women or minority group members, and not to those of men or white employees. The federal Civil Rights Act of 1991, however, made such manipulation of test scores illegal, unless it has been ordered by a court or mandated by law.

Federal, state, and local governments, and employers who have contracts with government agencies, may be required by law to perform affirmative action, without regard to whether the employer or its particular industry has discriminated in the past. For example, federal law requires that any employer who has a contract with the federal government (as well as many employers who are subcontractors, or who have contracts with other businesses, which have contracts with the federal government) must:

  • promise not to discriminate on the basis of race, color, religion, sex, or national origin;
  • file an annual report with the Equal Employment Opportunity Commission outlining the racial and gender make-up of its workforce; and
  • submit a written plan stating how the employer will address any disparity between the number of women or minority group members in its workforce, and the number in the general population.

Employers whose federal contracts do not exceed $10,000 per year are automatically exempt from these requirements.

Meeting with Your Employment Law Attorney

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Meeting with Your Employment Law Attorney

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