Chapter 5Affirmative Action

Copyright  2015 McGraw-Hill Education.  All rights reserved.  No reproduction or distribution without the prior written consent of McGraw-Hill Education.

5-2

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

5-3

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

5-4

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

5-5

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.

5-6

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-of-mouth – 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

5-7

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

5-8

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)

5-9

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

5-10

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

5-11

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

5-12

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

5-13

EO Affirmative Action Plans (5)

Corporate management compliance evaluations: Evaluations of mid- and senior-level employee advancement for artificial barriers to advancement of women and minorities OFCCP Equal Opportunity Survey every year

5-14

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

5-15

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

5-16

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

5-17

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

5-18

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

5-19

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

5-20

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