Today’s social and political climate has underscored the importance of businesses having an affirmative action plan. However, the picture of what this plan requires has shifted rapidly thanks to uncertainty and the fast-changing circumstances surrounding affirmative action policies. Specifically, compliance professionals fear that most compliance programs are expected to accomplish as much as possible with as few resources as necessary. This only works until a significant policy change takes shape, at which point an organization must rethink its approach.
In many cases, retooling affirmative action policies is inefficient and expensive, leaving organizations out of compliance for long periods of time. Plus, with specific issues, such as pay equity and non-discrimination, the federal government acts so slowly that states and municipalities must pass separate laws and regulations to fill the gaps. This can be a nightmare for larger employers operating in multiple jurisdictions and even negatively impact business operations. After all, companies depend on stability in the law to have stable affirmative action in business.
Regarding affirmative action policies, the big picture is pretty simple: Discrimination is a human instinct that is difficult to counteract. Without constant vigilance, discrimination will undermine employment opportunities, which are crucial to realizing the American Dream. We all want a fair shot at stability, livelihood, and general happiness, but people differ on ways to level the playing field. By knowing how to implement affirmative action in the workplace regardless of the changes in the regulatory landscape, compliance professionals can serve as effective gatekeepers who actively prevent illegal discrimination and provide equitable access to the American Dream.
Affirmative Action Policies: The Current State of Affairs
Employers face several challenges when it comes to implementing affirmative action policies. One of the biggest issues facing employers in the equal employment opportunity space is the lack of clear-cut federal guidance governing pay discrimination. The Office of Federal Contract Compliance Programs (OFCCP) usually enforces its requirements under a Title VII framework. Under this framework, if the agency wants to charge an organization with pay discrimination, it must identify a specific discriminatory pay decision, which is hard to prove.
There’s also the Equal Pay Act, under which pay discrimination is easier to prove. With this act, the agency only needs to show that employees are paid differently than others for performing the same work. However, neither the Equal Pay Act nor Title VII have effectively eliminated pay discrimination.
Further, several states and municipalities have codified their own pay gap legislation. They have taken elements from the Equal Pay Act and Title VII, but some state and local governments have neglected one or the other or both. Even worse, the OFCCP conflates its mandate under a Title VII framework with an Equal Pay Act approach. Confusing mandates make affirmative action plan enforcement confusing and inappropriate. It is especially challenging for employers who simply want to know how to comply with current laws.
For example, if you are a large employer with locations throughout the U.S. and you want to post a job opening, you might be able to post the job and call it a day. However, if you are posting a job in Colorado specifically, you must give internal candidates notice of the opening. Also, it’s unclear whether you need to notify employees who live in Colorado, those who work in Colorado, or all employees. As a result, posting a job in compliance with Colorado’s policies regulating affirmative action in the workplace is less efficient, more time-consuming, and more expensive.
In another example, Illinois might pass a statewide law allowing Chicago to continue implementing a slightly different ordinance. Considering all of the chaos and disorganization in affirmative action plans across the U.S., employers might fall out of compliance quickly if they don’t follow the nearly daily updates.
In an ever-changing affirmative action landscape, these are the three most common challenges organizations face while striving to maintain affirmative action ordinances:
• Compliance budgets: Ever-changing affirmative action policies have significantly impacted compliance budgets. Organizations already stretched too thin need even more time and resources to comply with various rules and regulations. Compliance is not a revenue-generating function, and frequent changes to affirmative action policies leave organizations’ compliance budgets in limbo.
• Burned-out compliance professionals: Many compliance professionals are hitting burnout and leaving the field out of frustration. After all, the more complex the regulations are, the more likely it is that something will be missed — and compliance professionals will shoulder the blame. Coupled with the fact that many people still don’t understand the scope of compliance professionals’ responsibilities, it’s easy to see how even long-term professionals could seek opportunities elsewhere.
• Undermined policy goals: The more complex the regulations are, the harder it is for employers to avoid penalties from regulatory authorities. Policy complications cause employers to focus solely on fines and fees instead of the purpose of affirmative action policies. This calls into question the future of affirmative action and makes organizations less effective at advancing underlying policy goals.
The constant changes in affirmative action regulations have left a lot of organizations in limbo. Regulations are necessary to ensure compliance, but when federal, state, and local governments pass conflicting laws, employers are often left confused and potentially out of compliance. It’s essential to create policies that can withstand rapid change if you want to see progress in your organization’s affirmative action plan.
The Evolution of Affirmative Action Policies
From their inception, federal affirmative action policies were always intended to prevent illegal discrimination. Because affirmative action predates the Civil Rights Act, when courts began enforcing it, they had to use specific remedies, such as quotas, to address legal violations. Unfortunately, they referred to the corrective measures as “affirmative action,” which created a negative stigma around the phrase. Anyone who hears the term “affirmative action” now only pictures negativity and controversy.
Given the negativity surrounding the enforcement of affirmative action, the reactions to the Civil Rights Act and resulting changes were mixed. Some organizations were on board; others resisted change. But most organizations only wanted to know what to do to avoid penalties from the Department of Labor. At this point, affirmative action plans became paperwork exercises rather than genuine efforts to eliminate illegal discrimination. The OFCCP’s biggest frustration has been getting federal contractors to understand that meeting the technical requirements of affirmative action is only the beginning of their obligation.
While there haven’t been any fundamental changes to affirmative action compliance for over two decades, the way we talk about and practice it needs revision. Here are three easy changes we can make when talking about affirmative action in business to ensure better success:
1. Avoid corrective action.
First, we must establish that corrective affirmative action measures — such as quotas — are negative. If there are hiring quotas or other similar practices in your organization, you’re implementing your affirmative action plan incorrectly or trying to remedy illegal discrimination. Rather than try to implement corrective action, use any remedial efforts as a positive opportunity to demonstrate how corrective action is unfair and how your organization can avoid things like quotas by focusing on legitimate affirmative action instead.
2. Talk about affirmative action more.
The future of affirmative action depends on the ability to discuss it so people understand what it is and that it’s a priority for your organization. The discussion should distinguish between corrective affirmative action and preventative affirmative action. When people hear about an organization’s affirmative action plan, they assume it is simply in place to hire more women and people of color, which is generally illegal and far from the goal of authentic affirmative action. Employees and other audiences are more likely to support affirmative action when they understand that the point is to avoid corrective action altogether.
3. Think of Executive Order 11246 differently.
It’s time to stop referring to Executive Order 11246 as affirmative action for women and minorities. E.O. 11246 is “for” everyone and protects everyone, not just women and people of color. It protects against discrimination regardless of sex, race, or ethnicity. This is the correct way to frame E.O. 11246 to eliminate confusion.
While affirmative action hasn’t changed much over the years, the evolution of the affirmative action discussion has remained steady. Opinions on affirmative action vary, but the way we talk about it matters objectively. By changing how we discuss affirmative action, we build a foundation for affirmative action plans that will continue to persist, no matter the regulations.
The Impact of Affirmative Action
Because most organizations focus on meeting the bare minimum required by affirmative action law, compliance professionals often put the most pressure on themselves. The truth is, however, that the bare minimum is rarely enough, and compliance professionals grow frustrated with the glacial rate of change. Compliance professionals know how to get rid of discrimination in the workplace, but their jobs are often extremely complex. Moreover, employers and other stakeholders have very different ideas of compliance goals. As a result, compliance professionals must navigate misunderstanding and hostility on top of daily tasks.
Despite the misconceptions surrounding affirmative action, compliance professionals can enjoy many benefits when implementing correct and effective affirmative action plans. Here are three points about compliance professionals that help shine a light on this challenging yet rewarding career:
• The job often involves dealing with potential issues.
Anyone who works in compliance knows compliance professionals often chase down red herrings or things that resemble potential issues but are benign. In fact, most of their time is spent solving potential problems before they occur. Despite this, compliance professionals strive to resolve matters effectively and provide guidance to businesses and employees alike when working through compliance concerns.
• Compliance professionals have to document negative findings, not positive ones.
Affirmative action regulations require compliance professionals to document negative findings, not what organizations are doing right. They must also document what was done to remedy the issues. As a result, organizations have libraries of documents detailing instances of things that often look like discrimination, which can be misleading and make it challenging to rebrand or start anew with better affirmative action policies.
• Most employers do the bare minimum, which creates hurdles for compliance professionals.
Because most employers do the bare minimum when it comes to following affirmative action policies, most compliance professionals’ work is lost to time and memory. However, if employers go the extra mile in documenting all evidence of non-discrimination, their libraries will reflect both the good and bad.
In many cases, the “good” evidence will far outweigh the “bad.” In 2022, we don’t see the kinds of rampant disparities we did in the 1960’s and 70’s. As such, organizations with mature affirmative action programs find that potential issues turn out to be nothing about 90% to 99% of the time. Still, complete documentation is only possible if the organization understands the compliance function and allocates the necessary resources.
Compliance professionals are essential when it comes to meaningfully implementing affirmative action in the workplace. However, because most people don’t understand the scope of compliance professionals’ work, employers tend to undermine their efforts by giving them a smaller budget than necessary. By providing the time and resources to support compliance professionals, companies can meaningfully comply with affirmative action policies and see real, lasting change.
The Future of Affirmative Action
The biggest challenge for affirmative action is political interference. Affirmative action is a human rights issue, but it’s been warped into a political talking point. This is especially perplexing considering that the support for equality is universal. However, the discourse surrounding affirmative action has been hijacked. Now people think that federal policy is being used to “fix” discrimination with more discrimination. That’s why equally strong messaging is necessary to counteract this false narrative. The federal government can clean up regulations, but compliance professionals must change how they talk about affirmative action and discuss it more to see real change.
Affirmative action isn’t going away any time soon thanks to two simple reasons: First, most people agree that making employment decisions based on sex or race is wrong and causes harm. Second, human beings are hardwired to discriminate. So while everyone agrees that discrimination is wrong, it will not go away on its own. As such, the only solution is constant vigilance. By taking the steps below, employers can better realize the positive effects of affirmative action in the workplace:
• Focus on the right type of affirmative action.
Given the recent controversy surrounding an affirmative action case that’s currently in the Supreme Court, the future of affirmative action is top of mind for many people. However, it’s important to discern what kind of affirmative action they are referring to. When people think of affirmative action today, they are likely thinking about college admissions processes that often involve corrective actions, such as quotas and point systems. Corrective actions are what affirmative action programs should avoid, so it’s important to distinguish between the two concepts.
• Prioritize preventative affirmative action.
Preventative affirmative action, or the main component of affirmative action plans, is here to stay. There are currently no legislative or regulatory actions that would mark the end of preventative action, but the terminology associated with preventative action might change. Stakeholders might see changes that help companies and compliance professionals distinguish between the more controversial types of affirmative action and the types that should be in place. Overall, focusing on preventative action benefits everyone because it marks positive steps toward meeting policy goals.
Implementing an affirmative action plan in the workplace might seem daunting, but there are several reasons it pays off in the short and long term. An inclusive workforce means a wider variety of skills, a more comfortable work environment, and a better understanding of a company’s audiences. Affirmative action provides a way for companies to rectify past wrongdoing and focus on an inclusive future for everyone.
For more information about how to implement affirmative action in the workplace, speak with a consultant at Biddle today.