What is Affirmative Action?
When introduced, affirmative action originally referred to a set of policies and practices preventing discrimination. Today, affirmative action is intended to promote the opportunities of defined minority groups within a society, giving them equal access to that of majority groups. It typically involves employers taking action to promote equal employment opportunities in their companies that balance the workplace against the discrimination of minorities, or disadvantaged groups of people. Affirmative action programs require employers to make various decisions while considering a variety of factors, such as race, gender, age, and many other possible discriminatory acts against job applicants and employees. These programs may be voluntary, required by law, or be conditional, such as when obtaining government contracts.
Voluntary and Involuntary Affirmative Action:
Title VII does not require all employers to engage in affirmative action, but it does not forbid it either. In Texas Chapter 21 of the Texas labor code, it states specifically that “policies that incorporate workforce diversity programs are not illegal”. Meaning voluntary affirmative action programs can be legally set up by privately-owned companies. On the other hand, an employer that has been sued for engaging in illegal discrimination can be ordered by the court to involuntarily set up an affirmative action program to correct its past acts of discrimination. Likewise, government agencies may be required by law to engage in affirmative action, and cities or states can voluntarily set-up these programs to favor minority contractors.
Illegal Affirmative Action:
While affirmative action may be allowed, or sometimes even required, it is also true that affirmative action can involve a company or government agency discriminating among groups of people in ways that may be illegal. In particular, courts will subject race-based affirmative action programs to strict scrutiny, meaning a racial affirmative action program cannot be any broader than necessary to meet the needs of the employer, and even then, only if those needs are great enough. It may be illegal for your employer to make decisions based on race, even when minorities are favored if they do not have a good reason to do so, or their decisions are not related to that reason.
Affirmative Action Quotas:
Quotas that require an employer to hire a certain number of minority applicants, regardless of their qualifications are usually illegal. However, sometimes quotas may be ordered by the courts. For example, an employer with a seniority program cannot lay off senior members of one race while keeping the less senior employees of another race.
Sometimes a city or state governments will establish “contract-set-asides” reserving a certain percentage of government contracts to go to minority-owned businesses. However, race-based-set-asides are illegal if they are only designed to respond to broad societal discrimination rather than to correct past discrimination by that city or state.
As you can see there are many facets to affirmative action laws, but you do not have to tackle them alone. If you feel that you have been discriminated against or treated unfairly based on Title VII affirmative action laws, please contact Scott Law Firm today. Matt Scott is an experienced Employment Attorney in the Dallas, TX area qualified to prepare your case and fight for your employment rights.