Affirmative Action Plan Lawyers

An Affirmative Action Plan (AAP) is a policy set by a business to eliminate employment discrimination. It establishes the guidelines for establishing equal employment opportunities for both new hires and existing employees.

What Is Included in an AAP?

If an employer sees that women, minorities and members of other protected classes are excluded from or under-represented in its workforce by their employment policies, the employer may wish to establish an AAP. Developing and implementing an AAP would aim to correct problems the employer sees by creating new policies and practices. The employer would set goals for the employment of protected class members in its new policies in the AAP.

Minorities and women are not employed at the rate which could be expected in light of their availability in the labor pool. Using quantitative analysis, affirmative action plans compare the composition of a contractor’s workforce to that of other relevant labor pools.

The programs contain practical steps that are created to address the underemployment of these women and minorities. The most effective AAPs also contain internal reporting and auditing procedures so that progress made can be measured. Of course, managers would look for numbers to indicate that discrimination is not affecting employment processes for hiring and promotion.

All of the policies, and procedures that a U.S. federal contractor would put into effect in order to ensure that all qualified employees and applicants have an equal opportunity for hiring, advancement, and other aspects of employment should be included in an affirmative action plan.

Is My Employer Required to Have an AAP?

Both federal and state law prohibit discrimination in employment on the basis of membership in a protected class. However, most private employers are not required to have an AAP. Certain employers with government contracts are the exception. There is more information about this below.

There are a range of federal laws that address discrimination in employment as follows:

• Title VII of the Civil Rights Act of 1964 (Title VII): This Act makes discrimination in employment based on race, color, religion, sex, or national origin illegal;
• The Equal Pay Act of 1963 (EPA): This act protects men and women who perform substantially equal work in the same establishment from gender-based wage discrimination;
• The Age Discrimination in Employment Act of 1967 (ADEA): This act protects people who are 40 years of age or older from discrimination in employment;
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA): This act bans employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments as well;
• Sections 501 and 505 of the Rehabilitation Act of 1973: These section prohibit discrimination against qualified people with disabilities who work in the federal government;
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): This act prohibits employment discrimination based on genetic information about an applicant, employee, or former employee;
• The Civil Rights Act of 1991: This Act provides for the payment of money damages in cases of intentional employment discrimination.

These laws are enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

Again, there is no requirement in Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act that most private employers develop AAPs.

An employer might want to establish an AAP voluntarily in order to ensure that it is in compliance with federal and state laws that ban discrimination.

However, some employers who have government contracts are required to establish AAPs. Specifically, federal contractors whose contracts exceed $50,000 (with at least 50 employees) must develop AAPs. Some states may require AAPs from certain employers in some circumstances as well.

Again, however, the only businesses that are required to have an AAP, updated regularly and in written form, are federal contractors or subcontractors who:

• Have 50 or more workers; .
• Have bills of lading from the government which total at least $50,000 in any given 12 consecutive month period;
• Are as a depository for any amount of government funds.
• Are financial institutions that serve as agents for notes of any amount or U.S. Savings Bonds.

Contractors are required to maintain AAPs for all of their offices in whatever locations that have a total workforce of at least 50 people. This means that the definition of “contractor” could possibly include banks, universities, medical centers or hospitals, and defense contractors. Companies that lease property to the government might qualify as well.

Regulations governing the creation of AAPs are based on an Executive Order that became law in 1965. The Standard Federal Equal Employment Opportunity Construction Contract Specifications, commonly referred to as the “Specifications.” They describe affirmative action obligations and identify steps that construction contractors are required to take to show their serious intention to reach the goals for female and minority participation of their bid solicitation requirements.

A limited sampling of the steps that certain contractors must take are as follows:

• They must create a workplace that is completely free of coercion, intimidation, and harassment in every work facility;
• The must assign at least two women to every construction project whenever that is possible;
• They must ensure that all supervisory personnel on a site are not only aware of the contractor’s obligation to maintain the right kind of environment, but that they will carry out the obligation, with particular attention paid to women and minorities;
• A list of female and minority recruitment resources must be established, maintained, and renewed regularly. A contractor must notify female and minority recruitment resources and community organizations in writing whenever contractors or their unions have employment opportunities. Contractors must keep records of any responses they receive;
• Maintaining a current file with the names, addresses, and phone numbers for every female and minority applicant that applies on their own initiative or is referred by a community organization, recruitment source or union. The file must also contain a record of all actions taken with respect to each person;
• Documentation of circumstances surrounding certain events, including the reason for which actions were taken or not taken must be maintained. This applies to any situation in which a person was directed to a union hiring hall for a referral and was not referred back to the contractor or was not hired after being referred,
• If a contractor becomes aware that the union referral process has obstructed the contractor’s efforts to comply with regulations, or when a female or minority person the contractor sends to a union with which the contractor has a collective bargaining agreement has not been referred, written notification should be made to the union director as soon as possible;

This list is not complete. There are additional regulations that are accessible online.

What about Recent Developments?

The Supreme Court has ruled that affirmative action programs will be strongly scrutinized and must be narrowly targeted to a governmental interest. Most government employers and companies are eliminating references to goals/timetables out of concern that they may seem like quotas.

Currently, companies that contract with the federal government have to make good faith efforts to hire the applicants who are best suited for the job. These companies must also make an effort to be responsive to the underrepresented groups. Because the Supreme Court has questioned affirmative action programs and plans, some companies have changed their policies to remove any reference to formal AAPs.

At the present time, two cases that challenge the constitutionality of taking race into consideration in college and university admissions have been submitted to the U.S. Supreme Court, so it is possible that in the spring of 2023, the Court will issue opinions that alter the current law in this area.

Do I Need an Experienced Employment Law Attorney?

An experienced employment discrimination lawyer would be able to inform you of your rights as a worker. You may want to consult the human resources department of your company and to review any company handbooks or policy and procedures manuals as well.

An employment discrimination lawyer would also be able to advise an employer about their obligations under federal law with respect to AAPs and other sources of obligations to eliminate discrimination in their employment practices. As the law in this area is in flux, it might be wise to schedule a session with a lawyer to get the most up-to-date guidance.