by On June 30, 2023, the U.S. Supreme Court reviewed student admission policies at Harvard and the University of North Carolina. It held that college admissions practices considering the applicant’s race violate the Equal Protection Clause of the U.S. Constitution. The headlines regarding these decisions used the term ‘affirmative action’ to describe the challenged race-conscious admissions policies. Understandably, federal contractors began questioning whether their obligations to maintain affirmative action programs (AAPs) had changed. The answer is that the recent Court decisions are not directly applicable to federal contractors, and covered employers continue to be obligated to maintain AAPs.
Since the 1960s, federal contractors employing more than 50 people and having federal contracts totaling more than $50,000 have been required by terms of their contracts and by Executive Order to create and maintain AAPs. Federal contractor AAP obligations include disseminating and enforcing a nondiscrimination policy, establishing a written strategic plan for nondiscriminatory hiring, setting placement goals for women and minorities, and implementing action-oriented programs for accomplishing goals.
Despite the use of the term ‘affirmative action’ in describing both the challenged higher education admission practices and federal contractor obligations, the relevant laws behind implementing affirmative action are different and use different means to achieve desired results. Federal contractor AAPs are strategic plans guiding employers in assessing the representation of protected groups within their workforce. The process includes a statistical analysis to identify disparities based on race or gender that could indicate discriminatory treatment or discriminatory impact of otherwise neutral practices. Employers who recognize underrepresentation in their workforce are expected to make good faith efforts to proactively remedy the situation through outreach, recruitment, and other actions that broaden the applicant pool and assure nondiscriminatory employment practices. Federal contractors, however, are prohibited from using race- or gender-based preferences, quotas, or set-asides in implementing their AAPs.
The Office of Federal Contract Compliance Programs (OFCCP) provides oversight for affirmative action obligations of federal contractors. For details on what is required (and what is prohibited) in maintaining AAPs, see the many employer resources at https://www.dol.gov/agencies/ofccp.
