Chapter 5 Affirmative Action McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

Learning 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 Page 199

Learning 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 Page 199

Learning 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 Page 199

Affirmative Action Affirmative action: Intentional inclusion of women and minorities in the workplace Based on a finding of their previous exclusion Page 201

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 Page 210

Has Affirmative Action Outlived It’s 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 Page 210-221

Has Affirmative Action Outlived It’s Usefulness? Title VII  passive approach Affirmative action  active approach Active approach required to remove a system that has been in place for 346 years Page 210-221

Employment 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 Page 212

Employment 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 Page 212

How Do Affirmative Action Obligations 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 Page 221

Affirmative Action Under Executive Order 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 Page 221

E.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 Page 221-222

Affirmative 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 Page 222-224

Affirmative 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 Page 222-224

Affirmative 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 Page 224-225

Affirmative 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 Page 225-228

Affirmative 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 Page 225-228

Affirmative Actions Used by Some Employers Advertising for applicants in nontraditional sources One-for-one hiring, training, or promotion programs Preferential layoff provisions Page 226

Affirmative Actions Used by Some Employers Extra consideration Lower standards Added points Minority or female “positions” Page 226

Penalties 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 Page 229

Penalties 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 Page 229

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 Regents of the University of California v. Bakke Local 28, Sheet Metal Workers v. E.E.O.C. Page 230-231

Voluntary 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 Page 231-233

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 Reverse discrimination accounts for only about 3 percent of the charges filed with EEOC Page 233-234

Reverse 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 Page 234

Opposing 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 Page 235-236

Affirmative 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” Page 237

Valuing 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 Page 237-241

Management 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 Page 242

Management 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. Page 242