Answers to 5 of the most pressing affirmative action questions

Posted November 7, 2017

By Katie Loehrke, PHR, editor, J. J. Keller & Associates, Inc.

Affirmative action is a term that evokes a variety of emotions for business owners and human resources professionals, but chief among them is confusion. Employers aren’t always sure when affirmative action requirements kick in, or even what they entail. To help with this confusion, this article answers five of the most frequently asked affirmative action questions.

Question 1: Who must have a written affirmative action plan?

Answer: Employers with 50 or more employees and a federal contract of $50,000 or more must prepare and maintain a written affirmative action plan (AAP) addressing the representation of women and minorities in their workplace. They must also create a plan examining the representation of individuals with disabilities.

Employers with 50 or more employees and a federal contract of $150,000 or more must also complete a written affirmative action plan for protected veterans.

Question 2: What is a federal contract?

Answer: A federal contract is an agreement between a business and the federal government for the purchase, sale, or use of personal property or nonpersonal services. “Personal property” includes supplies, and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements).

The term “nonpersonal services” includes: utilities, construction, transportation, research, insurance, and fund depository. Federally assisted construction contracts are not considered federal contracts for affirmative action purposes. Federal grants are also not typically considered federal contracts.

Question 3: Does affirmative action mean that minorities get preference?

Answer: Yes and no. As part of affirmative action efforts, employers may need to identify new recruiting sources to attract a more diverse pool of candidates. They must also examine how they treat minority, female, disabled, and veteran employees and applicants compared to the rest of the employee and applicant population to identify potential discrimination.

However, affirmative action employers need not hire, promote, or otherwise grant benefits of employment to these individuals purely based on those characteristics. Employment decisions may still be based on merit. With recruiting, for example, the idea is that employers will more frequently find minority, female, disabled, and veteran employees to be the most qualified individuals if more such individuals are included in the hiring pool.

The only time members of these groups may get “preference” under affirmative action rules is when two candidates are equally qualified and one candidate is part of an underrepresented group in the company’s employee population.

Question 4: What is the 80 percent rule?

Answer: In the affirmative action context, the 80 percent rule requires employers to consider whether the number of minorities and females who are actually employed is at least 80 percent of the number of these individuals who are qualified and available in their recruitment areas (according to U.S. census data).

Affirmative action employers that don’t meet the 80 percent threshold for any given job group must identify goals to help them meet that threshold in the future. Such goals might include pursuing new recruiting sources which might more effectively reach the underrepresented groups or expanding the recruitment area for a particular job group.

Question 5: How is data gathered for an AAP?

Answer: Employers are understandably wary about collecting protected information from employees. However, affirmative action employers can (and must) ask employees and applicants to voluntarily self-identify their race/ethnicity and sex as well as their disability and protected veteran status (if applicable).

This information should be collected separately from the job application and other personnel records. It’s wise to ensure that the data is also stored separately from personnel files to help employers avoid accusations that protected information was used in a discriminatory way.

About the author:

Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com.