Chapter 5Chapter 5Affirmative Action Affirmative Action

McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

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Learning ObjectivesLearning Objectives Discuss what affirmative action is and why it was

created

Provide the results of several studies indicating why there continues to be a need to take more than a passive approach to equal employment opportunity

Name and explain the three types of affirmative action

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Learning ObjectivesLearning Objectives Explain when affirmative action plans are

required and how they are created

List the basic safeguards put in place in affirmative action plans to minimize harm to others

Define “reverse discrimination” and tell how it relates to affirmative action

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Learning ObjectivesLearning Objectives Explain the arguments of those opposed to

affirmative action and those who support it

Explain the concept of valuing diversity/inclusion/multiculturalism/why it is needed, and give examples of ways to do it

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Affirmative ActionAffirmative Action Affirmative action: Intentional inclusion of

women and minorities in the workplace

Based on a finding of their previous exclusion

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What Is Affirmative Action?What Is Affirmative Action? Steps to hire qualified women and minorities or

other statutorily mandated groups who are underrepresented in the workplace

Actions an employer can take

Expand outreach to new groups

Recruitment of previously neglected groups

Mentoring, management training, and development

Hiring and training groups that tended to be left out of the employment process

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Has Affirmative Action Outlived It’s Has Affirmative Action Outlived It’s Usefulness?Usefulness?

Bills and acts that led to the rise of the American middle-class left African-Americans well out of the loop

Research shows that women and minorities still lag behind in terms of employment, pay and promotions

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Has Affirmative Action Outlived It’s Has Affirmative Action Outlived It’s Usefulness?Usefulness?

Title VII passive approach

Affirmative action active approach

Active approach required to remove a system that has been in place for 346 years

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Employment Research FindingsEmployment Research Findings Research shows that people who hire tend to

notice value more quickly in someone who looks like them

In the suburbs, equally qualified blacks are hired about 40 percent less than whites because of negative assumptions

Almost 90 percent of jobs are filled through word-of-mouth – fewer minorities and women being able to take advantage of those networks

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Employment Research FindingsEmployment Research Findings In one experiment, retailers consistently chose

slightly less qualified white women over more qualified black women in entry-level positions

When black and white discrimination testers who are similar in qualifications, dress, and so on applied for jobs, whites were 45 percent more likely to receive job offers and 22 percent more likely to receive interviews

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How Do Affirmative Action Obligations How Do Affirmative Action Obligations Arise?Arise?

There are three ways in which affirmative action obligations arise

Through Executive Order 11246

Judicially as a remedy for a finding of discrimination under Title VII

Voluntary affirmative action established by an employer

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Affirmative Action Under Executive Affirmative Action Under Executive Order 11246Order 11246

Affirmative action actually stems from a requirement imposed by Executive Order 11246 and its amendments

Present version signed into law September 24, 1965

Executive Order 8802

Forerunner to E.O. 11246

Signed on June 25, 1941

Applied only to defense contracts

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E.O. 11246 ProvisionsE.O. 11246 Provisions Prohibits discrimination in employment –

requires contractors to remedy inadequate representation of women and minorities in their workplace

Enforced by the Office of Federal Contract Compliance Programs (OFCCP)

Only applies to federal government contracts

Increases compliance requirements based on the amount of the contract

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Affirmative Action PlansAffirmative Action Plans Affirmative action plan: Must be developed

according to the rules set forth in the Code of Federal Regulations part 60-2

Underrepresentation / Underutilization: Significantly fewer minorities or woman in the workplace than relevant statistics indicate are available

Or their qualification indicate they should be working at better jobs

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Affirmative Action PlansAffirmative Action Plans 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

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Affirmative Action PlansAffirmative Action Plans 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

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Affirmative Action PlansAffirmative Action Plans Placement goal: Percentage of women and/or

minorities to be hired to correct underrepresentation

Based on availability in the geographic area

Quotas are expressly forbidden

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Affirmative Action PlansAffirmative Action Plans 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

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Affirmative Actions Used by Some Affirmative Actions Used by Some EmployersEmployers

Advertising for applicants in nontraditional sources

One-for-one hiring, training, or promotion programs

Preferential layoff provisions

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Affirmative Actions Used by Some Affirmative Actions Used by Some EmployersEmployers

Extra consideration

Lower standards

Added points

Minority or female “positions”

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Penalties for NoncompliancePenalties for Noncompliance The Secretary of Labor or the appropriate

contracting agency can impose a number of penalties on the employer

The Secretary of Labor 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

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Penalties for NoncompliancePenalties for Noncompliance 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

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Judicial Affirmative ActionJudicial 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

Regents of the University of California v. Bakke

Local 28, Sheet Metal Workers v. E.E.O.C.

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Voluntary Affirmative ActionVoluntary Affirmative Action The employer decides to institute an affirmative

action plan regardless of the Executive Order, and despite no Title VII cases being brought

Proactive measure to avoid discrimination claims

Strict guidelines must be followed

Steelworkers of America, AFL-CIO v. Weber

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Reverse DiscriminationReverse 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

Reverse discrimination accounts for only about 3 percent of the charges filed with EEOC

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Reverse DiscriminationReverse Discrimination Glass Ceiling Commission Report

White men are only 43 percent of the Fortune 2000 workforce but hold 95 percent of the senior management jobs

Women and minorities are underrepresented in most professions

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Opposing Views of Affirmative ActionOpposing Views of Affirmative Action

Con – Clarence Pendleton, Chair of the U.S. Commission on Civil Rights

“New racism”

Preferential treatment – “neo-slavery”

Pro – Richard Womack, Director, Office of Civil Rights for the AFL-CIO

White males have had the advantage of preference in the workplace for years

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Affirmative Action and VeteransAffirmative Action and Veterans Jobs for Veterans Act of 2002.

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”

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Valuing Diversity/MulticulturalismValuing Diversity/Multiculturalism Hudson Institute’s “Workforce 2000” study for

the U.S. Department of Labor in 1987

Valuing diversity: Learning to accept and appreciate those who are different from the majority and value their contributions to the workplace

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Management TipsManagement Tips Ensure that the hiring, promotion, training, and

other such processes are open, fair, and available to all employees on an equal basis

Work with the union and other employee groups to try to ensure fairness of adopted plans

Get early approval from the constituencies affected to ward off potential litigation

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Management TipsManagement Tips Make sure voluntary affirmative action plans

meet established judicial requirements

Provide training about the plan so that all employees understand its purpose and intent.

Implement periodic diversity and related training.