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
