An Expert Insight Series
Part 1: Is Affirmative Action Legal?
BCGi, and this author in particular, have been screaming for years for the OFCCP to clean up its regulations and, among other things, abandon anachronistic, confusing, and misleading terms. And we have been reminding practitioners that “affirmative action” in the federal contracting realm actually means the exact opposite of what everyone else in the world thinks of as “affirmative action.”
You see, the OFCCP is holding on to the original definition of “affirmative action,” which meant taking proactive (affirmative) steps (action) to ensure that nondiscrimination laws are not broken, rather than just posting a policy in the breakroom and crossing your fingers. The term has become a contranym, though, a word that holds opposite meanings. Outside of the OFCCP, “affirmative action” means all the things an affirmative action program is designed to avoid.
In our world, something like a hiring quota, the implementation of a points system, set-asides, etc. are only allowed in very limited circumstances to remedy an actual, provable instance of discrimination. Note that we did not say that such things are “legal,” because they are not.
Even if a federal contractor is ordered by a court to implement a temporary hiring quota to remedy past hiring discrimination, that quota is not “legal” in the sense that it is expressly allowed by the underlying law. Neither Title VII nor Executive Order 11246 contain exceptions to the painfully simple rule of not using protected characteristics when making employment decisions. It may be allowed by courts, but will be treated as what’s called an “affirmative defense.” In other words, the quota will still violate the law, but the courts will allow you to plead guilty and not face punishment if the right circumstances are met. That is not the same as being “legal.”
Federal “affirmative action” programs are actually all about avoiding the need for “affirmative action” by not breaking nondiscrimination laws in the first place. It is about employers actively policing themselves to ensure that people have actual equal opportunity and that no one faces discrimination. So it is hard to see how any political group—right or left—could have a legitimate beef with Title VII or the Executive Order.
Stay tuned for “Part 2: What Is America First Legal and What Are They Challenging?” coming next week as we explore the lawsuits attacking the OFCCP.
If you’re interested in learning more on this topic, it just so happens we’re hosting a free webinar entitled, “How to Talk About Affirmative Action” on March 11. Sign up here if you want to catch that show.
And as always, if you have questions about this or any other OFCCP-related matter, please feel free to reach out to us at BCGi@Biddle.com.
