Created as part of the Civil Rights Act of 1964, affirmative action refers to the practice of requiring businesses that contract with the federal government to promote equal opportunities among races, genders, religions, sexual orientations, people with disabilities, and veterans in an effort to counter past discrimination against these minority groups.

It was signed by President John F. Kennedy in 1961 and four years later President Lyndon B. Johnson issued it as Executive Order 11246, requiring government employers to take “affirmative action” to “hire without regard to race, religion and national origin.” Gender was added to the definition two years later.

Key Takeaways

  • Affirmative action is a government effort to promote equal opportunity in the workplace or in education.
  • The rules advocate for equality of race, gender, sexual orientation, and other factors of groups that have been historically discriminated or overlooked.
  • It is often considered a means of countering historical discrimination against particular groups.
  • Employers must be aware of these laws and similar rules aimed at equality and fairness.

How Is Affirmative Action Enforced?

Affirmative action plans (AAP) are enforced by the Office of Federal Contract Compliance Programs (OFCCP) under the U.S. Department of Labor (DOL) umbrella.

According to the DOL's web site, Executive Order 11246 applies to federal contractors and federally-assisted construction contractors who conduct at least $10,000 in government business in a one-year time period. But the order also applies to subcontractors who supply components to companies with federal contracts, such as manufacturers of engine parts for makers of vehicles purchased by the Department of Defense.

Financial institutions with deposit accounts for federal funds or that sell or cash U.S. savings bonds must also maintain an AAP.

Theoretically, companies with the most robust affirmative action programs will boast employee profile breakdowns that most accurately reflect the broader labor pools available to them. And while affirmative action has its share of detractors, an organization’s failure to comply with equal opportunity laws can result in costly financial and legal penalties.

As an effective management tool, an affirmative action platform employs internal auditing and reporting systems to track a contractor’s progress toward achieving the workforce that would theoretically occur under the total absence of discrimination. In addition to aggressive educational and outreach efforts aimed at targeting underrepresented populations, this includes equal treatment across recruitment, compensation, advancement and all other components of the workplace experience.

Simply put, affirmative action mirrors how organizations conduct daily business.

OFCCP conducts compliance reviews to study the employment practices of government-contracted businesses. During a compliance review, a compliance officer may scrutinize a contractor's affirmative action program by looking at personnel rosters, payroll figures and other records in addition to interviewing staffers and management executives. If problems are discovered, OFCCP will recommend corrective action and suggest ways to achieve the desired equal employment opportunity.

Problems may also be flagged by individuals filing complaints if they believe they have been discriminated against. Complaints must be filed within 180 days from the date of the alleged discrimination, although filing time can be augmented on a case-by-case basis.

The Benefits of Affirmative Action

Supporters of affirmative action argue that discrimination is still a problem in the American workforce and maintain that differing opportunities persist. In addition to righting this wrong, some argue that from a profitability standpoint, diversity in the workplace is good for a company’s bottom line—especially when it comes to minorities in leadership roles and board positions.

The groupthink mentality of good-old-boy networks doesn’t necessarily bring about the freshest ideas. Case in point: a recent study shows that when you reach a critical mass of 30 percent or more women on a board of directors, behaviors begin to change, governance improves and discussions become richer. And while sometimes it takes outside forces for higher-ups to shed their “hire-like-me” habits, once they observe the positive consequence, they tend to embrace change willingly.

Finally, although the availability of government contracts vary by administration and federal budgetary outlooks, such accounts are potentially lucrative windfall opportunities for the businesses that win them. As a result, businesses that are willingly compliant with equal opportunity law may be setting the stage for rosy prospects.

What Are the Perceived Disadvantages?

Since affirmative action guidelines require covered employers to meet certain timetables for hiring and promoting minorities and women, this may coerce employers to make hiring decisions based on numbers and not the overall qualifications of the applicants. It also creates an increase in competition for well-qualified applicants within these groups.

There also may be negative psychological ramifications at play, in that affirmative action policies can potentially stigmatize certain women and minority employees who may endure suspicious glares from co-workers who question the motivations for their hires.

What Employers Can't Ask You

Because of affirmative action statutes, as well as other legislation aimed at civil rights and equal opportunity, employers are not allowed to ask current or prospective employees about the following:

1. How old are you?

The Age Discrimination in Employment Act of 1967 (ADEA), protects individuals who are 40 or older from being discriminated against in the workplace in favor of younger employees. There are no federal protections in place to protect workers younger than 40 from age discrimination. To determine if you are legally eligible to perform a job, employers are allowed to ask if you are over the age of 18. 

2. Are you married?

Questions about marital status are prohibited. Employers might be tempted to ask this question to find out if your relationship could have a negative impact on your work. For example, if you are married you might be more likely to leave the company if your spouse gets a job transferred to a different city. Even a question as seemingly innocent as "Do you wish to be addressed as Mrs., Miss, or Ms.?" is not allowed.

3. Are you a U.S. citizen?

Citizenship and immigration status cannot be used against a potential employee during the hiring process according to The Immigration Reform and Control Act of 1986 (IRCA). Employers must wait until after a job offer had been extended to require a worker to complete the Employment Eligibility Verification (I-9) Form and submit documentation that proves identity and employment authorization. It is lawful for an employer to ask an interviewee if they are authorized to work in the US. 

4. Do you have any disabilities?

This question might seem necessary to determine if a job applicant can perform the required duties, but it is illegal to ask under the Americans with Disabilities Act of 1990 (ADA). Employers cannot discount anyone from a job because of a physical or mental disability.

In fact, the law requires that they accommodate disabilities unless they can prove it would cause significant difficulty or expense to do so. Employers also cannot ask you if you have had any past illnesses or operations.

5. Do you take drugs, smoke or drink?

Concerns about drug, alcohol, or nicotine addictions are valid as they can impact an employee's quality of work and the rates of a company's health insurance coverage.

However, an employer might find themselves in legal trouble if they don't frame questions about these potential problems in a careful manner. They are allowed to ask if you have ever been disciplined for violating company policies about the use of alcohol and tobacco products. 

They can also ask directly if you use illegal drugs, but an employer can't inquire about your use of prescription medications.

6. What religion do you practice?

Inquires about religious beliefs are a sensitive issue. An interviewer might be curious for scheduling reasons such as holidays that an employee might need off, or if the candidate will be unavailable to work on weekends because of religious obligations. It is illegal to intentionally discriminate against an employee or harass them based on their religious beliefs.

Employers are required to accommodate an employee's religious beliefs or practices in regards to things such as dress and grooming policy and flexible scheduling.

7. What is your race?

There is no situation in which questions about an employee's race or skin color should be used to determine their eligibility for a job. This protection is granted under Title VII of the Civil Rights Act of 1964 that prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Employers are permitted to ask an employee to reveal their race on a voluntary basis for affirmative action purposes.

8. Are you pregnant?

Questions about family status tend to affect women the most, but they can also pertain to men in certain situations. Employers might have concerns about an employee taking time off work for pregnancy leave or not having childcare arrangements during work hours.

The Pregnancy Discrimination Act of 1978 (PDA) states that an employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.

It is, however, lawful for employers to ease their nerves about an employee's availability or commitment to a position by asking about long-term career goals or the ability for an employee to work overtime and travel.

The Bottom Line

While affirmative action continues to be a source of controversy, AAP’s are a reality for all government contracted businesses. Employers that have been sued for discrimination may choose to implement an AAP as a way to proactively avoid future litigation, but also as a method of securing long-term viability.