What is Affirmative Action in the Employment Context?
Affirmative action in the employment context is any program that gives women or minority group members preference in training, hiring, or promoting. While the law still remains unclear, there are some principles that have been established.
Is Affirmative Action Permissible?
Under federal law, affirmative action is allowed, but only under certain circumstances and with certain limitations. For example, under the Rehabilitation Act, government contractors (groups or individuals that contract with the government) may be required to have affirmative action plans.
When is Affirmative Action Appropriate?
If you are an employer, affirmative action may be appropriate in a several situations. First, a court could order affirmative action to remedy past discrimination. Also, as an employer, you may be entitled to institute affirmative action to remedy past discrimination. An employer can also remedy a racial imbalance in the workforce (i.e., present discrimination) with affirmative action.
What Requirements are there to Affirmative Action?
If you institute an affirmative action plan, the plan must serve a compelling interest (such as remedying past or present discrimination) and the plan must be narrowly tailored such that it does not impede the rights of other employees. A plan that calls for a non-minority to be fired so a minority can be hired impedes the rights of the non-minority employee.
Is Diversity in the Employment Context a Compelling Interest?
The Supreme Court has ruled that diversity alone is not a compelling interest. This means achieving diversity in the employment context cannot be done through the use of affirmative action.
Is Affirmative Action permissible in all States?
No. Some places have banned affirmative action. For example, California has banned all forms of affirmative action (e.g., in employment education, etc.). Washington has also passed a similar law banning affirmative action.
I am an Employer Thinking about Instituting an Affirmative Action Plan, Do I Need a Lawyer?
The law on affirmative action is complex and still unsettled. An experienced employment lawyer can advise you in the process of determining whether affirmative action is appropriate. An employment lawyer can also defend you in court if you do institute an affirmative action plan and it is challenged. |
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