1. Chapter 5 Affirmative Action Copyright 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

2. 5-2 Learning Objectives (1)  Understand the concept of affirmative action, why it was created, and studies concluding there needs to be more than a passive approach to achieve equal employment opportunity  Discuss why it is controversial, and arguments pro and con.  Name and distinguish the three types of Affirmative Action programs and plans

3. 5-3 Learning Objectives (2)  Understand the circumstances that can give rise to affirmative action, and safeguards to protect legitimate expectations of majority workers  Discover the range of specific tactics to overcome past discrimination  Define ’reverse discrimination’ and tell how it relates to affirmative action  Explain the value of workforce diversity, and give examples of ways to achieve it

4. 5-4 What Is Affirmative Action?  Proactive steps to hire qualified women, minorities, or other statutorily mandated groups who are underrepresented in the workplace  Based on finding of previous exclusion  Specific tactics an employer can use  Expand outreach, recruitment to new groups  Mentoring, management training, and development  Hiring, training, promoting from groups that have tended to be left out of those processes

5. 5-5 Does AA help/hinder progress toward equality of opportunity?  Pro: systems causing minority oppression endured for hundreds of years; continuing evidence of opportunity gaps (glass half-empty); demonstrated successes are everywhere; threat of Affirmative Action is important deterrent  Con: system is working (glass half-full); if discrimination is wrong, it’s always wrong; continuing stigma attaches to minority successes; government interference in the economy.

6. 5-6 Employment Research Findings  Women and minorities still lag behind in terms of opportunities, pay and promotions  Research shows that people tend to notice value more quickly in someone who looks like them  Almost 90% of jobs are filled through word-of- mouth – fewer minorities and women being able to take advantage of those networks  Glass Ceiling Commission Report: white woman half of workforce but 5% of senior corporate jobs

7. 5-7 How Do Affirmative Action Obligations Arise?  There are three ways in which affirmative action obligations arise:  Through Executive Order 11246 (government contractors)  Judicially, as a remedy for a persistent finding of discrimination under Title VII  Voluntarily, affirmative action established by an employer or union

8. 5-8 E.O. 11246 Provisions  Requires federal government contractors (suppliers of goods, services) to remedy inadequate representation of women and minorities in their workplace  Enforced by the Office of Federal Contract Compliance Programs (OFCCP)  Increases compliance requirements based on the size ($) of the contract(s)

9. 5-9 EO Affirmative Action Plans (1)  Affirmative action plan: Must be developed according to the rules set forth in the Code of Federal Regulations part 60-2  http://www.dol.gov/dol/cfr/Title_41/Chapter_60.htm http://www.dol.gov/dol/cfr/Title_41/Chapter_60.htm  Underrepresentation / Underutilization: Significantly fewer minorities or woman in the workplace than relevant statistics indicate are available  Or their qualifications indicate they should be working at better jobs

10. 5-10 EO Affirmative Action Plans (2)  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

11. 5-11 EO Affirmative Action Plans (3)  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

12. 5-12 EO Affirmative Action Plans (4)  Placement goal: Percentage of women and/or minorities to be hired or promoted to correct underrepresentation  Based on reasonable availability in the geographic area  Quotas are expressly forbidden  Action-oriented, more than business-as-usual  OFCCP audits: good-faith, measurable progress

13. 5-13 EO Affirmative Action Plans (5)  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

14. 5-14 Penalties for Noncompliance (1)  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

15. 5-15 Penalties for Noncompliance (2)  The Department of Labor/OFCCP or the appropriate contracting agency can impose a number of monetary penalties on the employer, including “debarment” (banning company from future contracts for a period of time)  The DOL/OFCCP 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

16. 5-16 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  Creatures of judicial remedy: context is key  Case: Local 28, Sheet Metal Workers v. E.E.O.C.  Scenario 1

17. 5-17 Voluntary Affirmative Action  Employer or union institutes affirmative action plan on it own, compelled by neither EO or court.  Proactive measure to avoid future discrimination claims  Scenario 2  Plans must be carefully designed:  Temporary  Narrowly tailored to address under-representation  No quotas  Not “unnecessarily trammel” rights of majority workers

18. 5-18 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  Scenario 3  Reverse discrimination accounts for only about 3 percent of the charges filed with EEOC  Case: Johnson v. Transportation Agency, Santa Clara County, CA

19. 5-19 Affirmative Action and Veterans  Jobs for Veterans Act of 2002.  Federal 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”  Also administered by OFCCP

20. 5-20 Valuing Diversity/Multiculturalism  Hudson Institute Report: Workforce 2000  Valuing diversity: Learning to accept and appreciate those who are different from the majority and value their contributions to the workplace  Mirrors population, workforce changes  Also reflects rise in buying power of diverse customer base  Decisions with limited input likely to be sub-optimal