What Is Affirmative Action

Affirmative action refers to policies aimed at providing underrepresented groups with equal professional and educational opportunities. The term is often considered a means of eliminating discrimination against particular groups when considering individuals for employment.

Affirmative action programs are commonly used by businesses or governments who consider an applicant’s sex, race, religious affiliation, or national origin during the hiring process.

What Prompted Supreme Court Affirmative Action Decisions?

President John F. Kennedy issued Executive Order 10925 in 1961, specifying that government contractors would "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." This order affected military contractors, public schools, and public universities, and its efforts to provide equity in employment and education were an important step toward the later protections in the Civil Rights Act and subsequent legislation.

Two well-known examples of Supreme Court affirmative action cases include:

Students for Fair Admissions v. Harvard

Students for Fair Admissions (SFFA) sued Harvard over the college’s admission policies. The students alleged that “the process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of White applicants.” Though the school admitted to considering race one of the many factors of the admission process, they argued their process follows the requirements for race-based admissions as determined by the Supreme Court in Grutter v. Bollinger.

After more than a two-week trial, the district court sided with Harvard. SFFA appealed the decision, and the case was heard by the U.S. Court of Appeals for the First Circuit, which affirmed the original ruling.

In 2023, the Supreme Court ruled that the use of race in college admissions is unconstitutional under the Equal Protection Clause of the 14th Amendment in Students for Fair Admissions v. Harvard.

Regents v. Bakke (1978)

Allan Bakke, a White man, was rejected from medical school at the University of California twice. Bakke sued the university, citing the university’s policy setting aside 16 seats out of 100 for minority students discriminated against him as a White man. The Supreme Court ultimately agreed with Bakke, and he was granted admission.

Affirmative Action Examples

After the U.S. Supreme Court ruled against using racial quotas for hiring or education, most affirmative action measures have shifted to outreach programs in recruiting and retention. These programs are designed to recognize and correct barriers that continue to hinder underrepresented groups, such as women, Asian Americans, African Americans, and Native Americans, from educational and professional opportunities.

To ensure all employees, regardless of their demographics, have equal development opportunities, the government has encouraged organizations to have an affirmative action plan (AAP). These plans outline a “federal contractor or subcontractor’s efforts to provide equal employment opportunities and generally support the advancement of employees regardless of gender, race, disability or veteran status.” Federal guidelines recommend updating AAPs at least once a year.

Why Is Affirmative Action Important?

Affirmative action’s primary aim is to provide a more equitable experience for underrepresented groups. This began with efforts to create equal opportunities for people of all races and genders. Additional Equal Employment Opportunity laws extend protections to equal pay and restrict discrimination based on age or disability.

The ongoing debate focuses on whether measures to provide equality exacerbate inequity in how organizations hire and treat underrepresented groups—for example, whether requiring the inclusion of Black candidates disadvantages equally qualified Asian American candidates.

HR Compliance: Where Does Affirmative Action Apply Today?

In the decades following its inception, affirmative action has gone through its share of refinement and controversy. Currently, nine states have an active ban on affirmative action: California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho. Texas enacted a ban in 1996 that was overturned in 2003.

Many countries, including South Africa, India, China, France, Bulgaria, and Brazil, have also adopted similar affirmative action measures to promote inclusivity. These policies include quota systems in their educational systems to directly address discrimination.

How to Apply Affirmative Action Programs in Hiring

While equity has improved since the onset of affirmative action, there is still much work to do. Discrimination can occur in the smallest judgments and preconceived biases, so any decision where people evaluate other people must be handled carefully. This begins with the language used in job descriptions and continues with every performance evaluation.

The conversation on affirmative action laws continues, but the benefits of a diverse workforce are already clear. Independently developing and implementing diversity measures will help organizations stay healthy, supported, and relevant.

What Is an Affirmative Action Plan (AAP)?

An affirmative action plan (AAP) is a plan or program that outlines a federal contractor or subcontractor’s efforts to provide equal employment opportunities and generally support the advancement of employees regardless of gender, race, disability, or veteran status.

Affirmative Action Plan Requirements

Formal affirmative action plans are only required for federal contractors and subcontractors.

There are additional conditions set forth by the Office of Federal Contracts Compliance Programs (OFCCP), which oversees federal contractor compliance. Their conditions include all non-construction federal contractors or subcontractors who:

• Have 50 or more employees
• Are within 120 days from the start of the federal contract
• Have a federal contract or subcontract of at least $50,000
• Have government bills of lading totaling at least $50,000 in any 12 months
• Serve as a depository of federal funds in any amount
• Or are a financial institution that is an issuing and paying agent for U.S. savings bonds and savings notes

Check with the OFCCP if you meet these conditions.

Affirmative Action Compliance

AAPs are monitored by the OFCCP at the federal level and must be updated in its online contractor portal annually. Multiple users from each organization can register on the portal to manage records if needed. Contractors that don’t certify their AAPs annually are more likely to be audited by the OFCCP.

Some states have additional AAP compliance requirements. Check with your state’s Department of Labor or Employment’s exact specifications.

In addition to having a written, up-to-date plan, the OFCCP also recommends keeping records as evidence of its affirmative action efforts, such as:

• Documents that state its employment policies and practices, such as collective bargaining agreements
• Letters sent to suppliers, vendors, and recruiters stating its affirmative action policies
• Contracts that contain equal employment clauses

AAP Reporting

According to the OFCCP, contractors should employ internal audits and reporting systems to keep track of relevant employee demographic information, monitor anti-discrimination initiatives, and analyze the effectiveness of any affirmative action plan.

Information to collect includes:

• Applicant and employee demographics collected voluntarily during the hiring process with an applicant flow log
• Promotions
• Transfers
• Terminations
• Compensation

To be clear, an AAP is the written document of the plan and policies that will guide the company forward over the next year, not the audit or reporting system that the company uses. However, it relies on the results and data collected from both.