In an employment context, affirmative action gives training, hiring, or promoting preference to disadvantaged groups and/or underrepresented groups in the field of work. Typically, the groups are women and minorities for the purpose. The overall purpose is to have equal representation and encourage diversity in the workplace, while understanding that the field has certain requirements.

Is Affirmative Action Permissible and Appropriate?

Federal law permits affirmative action, but only under certain circumstances and with limitations. For instance, under the Rehabilitation Act, federal contractors and subcontractors are prohibited from discrimination against individuals with disabilities, and are required to take affirmative action for this group of people.

Affirmative action is appropriate in several situations. A court can order affirmative action as a remedy to past discrimination. Employers may also be entitled to enact affirmative action to remedy discrimination. Employers can also use affirmative action to create balance in an otherwise underrepresented workplace or field.

What are the Requirements to Use Affirmative Action?

Affirmative action plans must serve a compelling purpose such as remedying past or present discrimination. But these plans cannot impede the rights of others. An example of this is firing a non-minority employee so that a minority individual could be hired. Essentially, affirmative action in the workplace is not used to hire unqualified employees solely due to their status as a minority, but to make sure that minorities with the qualifications to fulfill the position have a chance to be hired.

In the past, discrimination was a natural part of the hiring process with many qualified employees turned away due to their race and/or gender. Overtime, it became harder for minority applicants to discover or even submit an application for jobs they would qualify.

Is Affirmative Action Used in All States?

No. Affirmative action is not used in all states. The Supreme Court ruled that states have the authority to ban affirmative action in the workplace, and the following eight states followed suit:

  • Arizona
  • California
  • Florida
  • Michigan
  • Nebraska
  • New Hampshire
  • Oklahoma
  • Washington

Some of these states, including California, have banned all forms of affirmative action like affirmative action in college admissions, whereas other states are more specific. Speak with an attorney to learn more about your own state’s rules and regulations.

I Am an Employer Thinking About Implementing an Affirmative Action Plan, Do I Need a Lawyer?

The laws on affirmative action can be a bit of a gray area, which is why consulting with an employment lawyer is a wise decision. An attorney can advise you on whether implementing an affirmative action plan is appropriate, and can also represent you in court in case of recourse.