Affirmative Action Programs: Everything You Need to Know
Affirmative Action Programs (AAP) are a requirement of doing business with the U.S. Federal Government.8 min read
2. Criteria Requiring an AAP
3. Regulations Government AAPs
4. Enforcing Agency
5. What is the purpose of an Affirmative Action Program?
6. What does an Affirmative Action Program consist of?
7. Are Affirmative Action Program Goals required to be met?
8. Does Affirmative Action mean we are applying different standards toward non-minorities?
9. Who benefits from Affirmative Action Programs?
10. Does Affirmative Action Do What It Should?
Affirmative Action Programs
Affirmative Action Programs (AAP) are a requirement of doing business with the U.S. Federal Government. Specified contract and employment activities must comply with AAP to meet equal employment opportunity (EEO) regulations. Affirmative action programs designed for institutions or government contracting agreements, exhibit AAP goal attainment in comparative statistical analyses withaggregate U.S. labor segments to illustrate program performance. Affirmative action programs must follow AAP guidelines to internal policy guidelines in development and execution of those action-oriented programs.
In 1961, President John F. Kennedy issued an executive order mandating government contractors to "take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, or national origin.” Since that time, government contractors have been required to comply with affirmative action in reporting of “information as to the practices, policies, programs, and employment policies, programs, and employment statistics of the contractor and each subcontractor . . . ." Affirmative action enforcement of government contractor activities is performed by the U.S. Department of Labor (DOL) Office of Federal Contract Compliance Programs.
Employers who contract with the government and are also in receipt of federal funds are required to document AAP practices and reporting metrics. Affirmative action is also a remedy, provided for under the Civil Rights Act of 1964, if a court finds that a defendant has intentionally engaged in discriminatory employment practices. Recipients of federal funds are required to document their affirmative action practices and metrics. Educational institutions on record for acts of discrimination in the past, must take affirmative action to meet Equal Employment Opportunity Commission (EEOC) requirements to remedy (34 CFR § 100.3(6)(ii)).
Criteria Requiring an AAP
U.S. federal contractors and subcontractors must establish an AAP plan to comply with U.S. Government rules to EEO regulation if the contractor:
- Is profiting from contracts of+$50,000.
- Has Government “bills of lading” during any 12-month period totaling +$50,000.
- Serves as a depository of Government funds in any amount.
- Is a financial institution; an issuing and paying agent for U.S. Savings bonds or notes in any amount.
Contractors must maintain AAPs for all establishments (locations) with 50 or more employees (total workforce) in compliance with U.S. Federal Government's criteria (Per41 CFR 60-1.40). Some organizations elect to publish a voluntary AAP.
Regulations Government AAPs
Executive Order 11246 was enacted into U.S. law in 1965 and is basis to regulations governing preparation of AAP
The Office of Federal Compliance Programs (OFCCP) is in oversight of private entities which are government contractors under non-construction or construction contract. Rules to agreements with federal contractors and subcontractors must be in accordance with affirmative action laws to. All administrative activities must not discriminate regarding color, race, sexual orientation, sex, national or ethnic origin, religion, disability, age, or status as a disabled veteran or Vietnam Era veteran.
The OFCCP has 48 District or Area offices, under the direction of six Regional offices across the country. OFCCP compliance officers are in oversight of AAP compliance evaluations. Government contractor must prepare and periodically update AAP annually. Audit of AAP is done by OFCCP scheduling selection letter. Additionally, Contractors are required to file EEO-1 and VETS-4212 reports, annually.
What is the purpose of an Affirmative Action Program?
An affirmative action program is intended to ensure rights of all persons have equal opportunities in recruitment, hire, promotion, training, and discipline in employment. Employers recruiting candidates for hire must prioritize a quantifiable advance for qualified persons with disabilities, minorities, women, and covered veterans.
Affirmative action programs implemented by employers can include education and training programs and outreach efforts. Affirmative action policies should be part of an organization’s written personnel policies. Employers with written affirmative action plans must file and update those documents annually. The contents of both mandatory and voluntary affirmative action plans are essentially the same.
What does an Affirmative Action Program consist of?
An affirmative action program must include the following: Organizational Profile, Placement of incumbents in job groups, Job Group Analysis, Availability Analysis, Incumbency versus Availability Analysis and Placement Goals.
Are Affirmative Action Program Goals required to be met?
Affirmative action program goals are not projected to be met, yet the intent of the legislation is that “good faith” agreement stands in efforts to reach their attainment. The affirmative action plan should exhibit that the institution has formalized affirmative action as a policy in procedure and that such a plan illustrates good faith efforts were carried out in execution of marketing, recruitment, promotional, training strategies and implementation, and that termination has followed the rules to fair contract.
Does Affirmative Action mean we are applying different standards toward non-minorities?
No, APP application of a single standard is meant as consideration of all people regardless of minority or nonminority status. Affirmative action rejects the idea that less qualified candidates should be considered. Affirmative action acknowledges a community and obliges an organization be comprised of representative distribution of the same community.
Who benefits from Affirmative Action Programs?
All people benefit from AAP. AAP intends to promote diversity and inclusion among individuals of different race, color, sex, religion, or national origin.
Does Affirmative Action Do What It Should?
United States Affirmative action laws are federal legislation enacted by Congress, on behalf of citizens and the institutions and organizations they engage with. Affirmative Action legislation rules concern opportunities for historically excluded categories of persons, and their rights to protection from discrimination, bias, and discrepancies in distribution of compensation and benefits under law. Affirmative action policies usually focus on education and employment. In institutions of higher education, affirmative action covers admission policies; providing equal access to education for underrepresented minorities and women.
The principles of affirmative action were reaffirmed by reform of the Civil Rights Act (1964) (34 CFR § 100.3(b)(6)(i)) in 1991. In 1997, California's Proposition 209 banned affirmative action. Michigan saw opposition to affirmative action in 2003, resulting in bar of the use of gender or race in government recruitment, hiring, contracting, or university admissions. The basis to U.S. federal legislation in Executive Order 10925 (1961) articulates that where government contracts are concerned, a contractor will take affirmative action to ensure that applicants are employed, and are considered during employment, without regard to their creed, race, color, or national origin.
Affirmative action rules offer more than prohibition and are proscriptive to a set of procedures designed to eliminate unlawful discrimination of applicants or employees; remedy prior discrimination; and prevent future discrimination. Applicants or employees seeking admission or hire in an educational institution, or other organization are protected by special rights of hiring or advancement if classified as a woman or ethnic minority (i.e., non-Caucasian). The subject of much debate, opponents to affirmative action programs, claim that implementation results in reverse discrimination against Caucasians. Quotas, say they, are unfair criteria, and do not account for actual performance record.
The culmination of a series of governmental proclamations, court precedent, and voluntary programs fostered by employers in the private sector, affirmative action programs were historically adopted by the latter with no mandate or receipt of public funding. This evidences that affirmative action policies have always had proponents, and education and employment contracts have always been subject to terms and conditions associated with politically actionable ideas about social inequalities, even if they were not enforceable under law until affirmative action was made policy.
The debate over affirmative action has shown that the procedural elements of the law are just as important as the policy itself. Take, for example, the process to college and university admissions. While underrepresented student recruitment is a standard aspect of higher education institution outreach strategy, students that are offered the financial aid in coordination with those efforts, are more likely to apply to those campuses providing the support services to ensure academic success the first year.
Affirmative action programs are responsible for a reported up to 33 percent increase in the number of minority applications to higher education institutions. Colleges and universities quite literally alter the population of a surrounding community as well, and statistics show how affirmative action can make or break minority representation on a campus. After the State of California abolished affirmative action, minority student admissions at UC Berkeley fell by 61 percent, and 36 percent at UCLA respectively. When Texas abolished affirmative action in 1996, universities in the state saw Hispanic enrollment drop by 22 percent, and African-American enrollment drop by 46 percent.
While graduates who claim they have benefited from affirmative action programs indicate they have continued to gain from higher paying, better jobs, and have more opportunity than they would have without such assistance, the trend in diversity programs illustrates a split between states that guarantee affirmative action, and those that have eradicated it, both claiming victory in the name of true equality. Multi-cultural perspectives conjoin with proponents, arguing that a global society demands more thorough attention to diversity for institutions and organizations to be effective.
Affirmative action policies are but one piece of the multi-cultural diplomacy puzzle. However, the real concern for most U.S. citizens is, of course, the distributive effects and equal treatment. Affirmative action is meant to remedy centuries of social, racial, and economic oppression. Opportunity and socioeconomic status are quite clearly tied. How to better mobilize resources and processes to create better equity is met with a range of solutions, both in policy and in practice. Advocates support merit-based competition between students, yet maintain that affirmative action compensates for economic differentials in distribution of those resources.
Opponents to affirmative action argue that such policies may be unconstitutional under the 14th Amendment, Equal Protection Clause of the United States Constitution. Title VI of the Civil Rights Act of 1964, prohibiting discrimination based on color, race, or national origin by institutional recipients of federal financial assistance, also supports such a perspective. Some suggest that affirmative action policies lower standards and create the conditions for uneven accountability. The assertion is if standards for exam scores, grade-point average, or other performance criteria are lowered for underrepresented groups, the entire population will strive only to meet minimal requirements.
The single biggest problem of affirmative action programs is the substantial record of controversial outcomes that those programs have resulted in, including harm done to intended beneficiaries. The theoretical criticism is that affirmative action is a "mismatch" for the real-world context of U.S. education institutions and work environments. The mismatch effect happens when a school extends to an admissions preference based on affirmative action, or because of a student's athletic prowess, or family legacy connection to the school, and a student finds their academic preparation has been inadequate in comparison to that of classmates. Affirmative action, then, is intended to protect the rights of minority students or junior employees, yet does not benefit them insofar that it does not prepare them for the opportunity.
Moreover, affirmative action policies do not necessarily help economically disadvantaged students, but benefit middle- and upper-class minorities. Class issues to emerge from affirmative action also suggest that special treatment only serves to amplify racial prejudice. States should enact other policies or programs to create the conditions for equal opportunity, say opponents of those policies; raising the expectations for all students in effort to improve the college readiness and intellectual growth of U.S. students across the board.
If you have inquiries about Affirmative Action laws, post your legal needs on the UpCounsel marketplace. UpCounsel lawyers represent the top 5 percent attorneys in the United States, graduating from top law schools such as Harvard Law School and Yale Law School. UpCounsel attorneys have an average 14 years of legal experience and have represented corporate clients like Google and Menlo Ventures.