Thursday, December 11, 2014

Revisiting Affirmative Action

Our post last Thursday about the risk and rewards of using HR tech to source and recruit mentioned the limits of affirmative action. Follow-up questions from readers reminded us that although the phrase “affirmative action” is familiar and much-used, the subject isn’t particularly well understood.  Even those who regularly handle discrimination issues may not know where equal opportunity ends and affirmative action begins. There is sometimes confusion about when affirmative action is required, when it is allowed, and what it should include.
Equal employment opportunity and affirmative action are not the same thing. Although the media and popular usage make them seem almost interchangeable, they are different under the law.
Equal employment opportunity, as defined by law, requires equal treatment regardless of protected characteristics such as race, sex, age, and religion.  Almost all employers are required by law – federal, state, or local – to provide equal opportunity to applicants and employees.  The laws that prohibit discrimination vary in terms of the characteristics they protect, but virtually all say that race, national origin, religion and sex can’t be considered in employment decisions.  Many also cover age, disability, and veteran status among other protected classes.
Affirmative action is generally defined in the law as positive action designed to remedy past discrimination.  It is required of most government contractors and, sometimes, by courts that order it as a remedy in a discrimination case.  Unlike equal employment laws, affirmative action requirements do not apply to most employers. Employers that are not government contractors and not subject to a court order requiring affirmative action can choose to take voluntary affirmative action, but may only give favorable consideration or treatment to those of a particular race, gender, or other protected characteristic to the extent necessary to remedy past discrimination.
It’s helpful to think of affirmative action as a very narrow exception to laws requiring equal employment opportunity.  Those laws say that you can’t consider race, gender, religion, or other protected characteristics – period. They don’t just protect “minority” races or women or non-Christians. If an employer voluntarily decides to favor candidates of a particular group based only on a belief that those candidates have been unfairly excluded in the past, there is a very real risk – good intentions notwithstanding – that that employer will be accused of doing the very thing the law prohibits.  Favoring certain groups is only lawful, the courts and the EEOC have said, if the past discrimination being remedied is demonstrated, the remedial action is narrowly targeted and time-limited, and the remedial action is part of a written affirmative action plan.
Remember that there are many things employers can do to ensure equal opportunity and attract diverse candidates, and most don’t require quotas or favorable consideration of specific groups. To the extent that affirmative action is limited to such efforts, it’s not likely to cross the line into unlawful discrimination.
The next time you see “EEO/AA Employer” on a job posting or letterhead, it’s worth asking: Is the employer really “AA” or just “EEO”? If the employer actually does practice affirmative action, does it do so because it’s a government contractor or subject to a court order? If not, and the affirmative action is voluntary, is the employer staying within the narrow confines of legitimate affirmative action, or is it violating EEO laws?  If your company’s job posting is the one that says “EEO/AA Employer” asking these questions may be a particularly good idea.

Posted by: Judy Langevin

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