Affirmative Action Law

Affirmative Action Plans & the Law

The Supreme Court recently cast doubt on the constitutionality of Federal affirmative action plans that award benefits on the basis of race. The Court ruled that any such programs will be subject to the most searching judicial inquiry and will survive only if they are narrowly tailored to accomplish a compelling governmental interest. This ruling is a clear defeat for employers who take positive steps to recruit individuals on the basis of personal characteristics and classifications, including race, sex, religion, and veteran status, when the number of such individuals within the company is far below the number of such individuals within the community where the company is located. It is also a setback for employers who seek to ensure that such individuals, when employed, have an equal opportunity for benefits and promotions within the company.

The effect of the Supreme Court decision has been immediate. For example, the Office of Federal Contract Compliance Programs (OFCCP), charged with overseeing and administering the largest affirmative action program in the U.S., (more than 90,000 organizations have contracts with the federal government valued at $50,000 or more), recently announced that the requirement for "goals and timetables" in mandatory affirmative action plans for federal government contractors is not to be construed as a quota system to be achieved through race-based or gender-based preferences. The OFCCP is trying to clarify that its affirmative action program is different from preferences or set-asides and does not amount to reverse discrimination.

Employers are now eliminating any race or gender-based preferences in their hiring policies; if a formal plan has already been established, companies are considering eliminating any reference to formal goals and/or timetables (such as not requiring that any specific position be filled by a person of a particular race, gender or ethnicity) and not establishing a minimum number of minority employees which must be employed by a certain date.

For companies acting as government contractors, all that is now required is that an employer is responsive to the needs of underrepresented groups and makes informal good faith efforts to hire those best suited for the job. This is not even necessary for other private employers since there is no affirmative duty for companies hiring minority employees to institute affirmative action policies.

Most companies with formal EEO policies contained in company handbooks and manuals are now modifying or deleting the language which guarantees the institution of any formal plan.

Counsel Comments: It is unclear just what kind of affirmative action programs are still permissible since all plans are now under a cloud of uncertainty. Those favoring affirmative action argue that the Supreme Court decision did not kill affirmative action, particularly in cases where no women or minority workers are included in a company's workforce. Even if this is not true, your company still cannot take illegal action towards minorities. But any employment program with numbers, goals or timetables that can even remotely lead to quota-preferences is now probably illegal. Speak to an employment lawyer to determine your rights and options where applicable.