Learn the basics about affirmative action -- including how courts judge whether an employer's plan is legal.
Practices that are intended to promote opportunity for members of historically disadvantaged classes are referred to as affirmative action. Although most often associated with promoting opportunities for candidates of color and women, affirmative action may assist any disadvantaged group. For example, some affirmative action programs benefit people with disabilities or military veterans.
Affirmative action is most common in employment, government contracts, and business. In 2023, the Supreme Court banned the use of race-based affirmative action in the college admissions process (Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023).) This decision casts doubt on whether private employers will continue to be permitted to use affirmative action when making decisions on hiring, compensation, promotions, and other terms of employment. But for now, affirmative action remains legal in the employment context.
In the employment field, the federal, state, or local government might implement affirmative action measures, either when the government acts as an employer or when the government contracts with, or provides grants to, private business. Private employers may also adopt their own affirmative action programs.
Types of Affirmative Action Measures
Affirmative action measures can take many forms. They might include steps to make sure that candidates from historically disadvantaged groups have an equal opportunity to contend for jobs and promotions (such as posting jobs in areas with high numbers of minority job seekers, developing outreach efforts to find qualified female candidates, and supporting training programs for candidates or employees in protected categories. Or they might consist of giving members of historically disadvantaged classes an edge in employment decisions by taking gender, race, or another protected characteristic into account as a factor in the selection process.
Learn more about Discrimination in the Workplace.
The Controversy Over Affirmative Action
Some affirmative action measures don't take race, gender, or other protected characteristics into account in the selection process, but seek only to widen the field of qualified applicants through outreach and search efforts. When the employer in this type of program reaches the point of actually selecting candidates, the process is color- and gender-blind. These measures have not met with much legal or social resistance.
However, measures that give an edge to particular applicants based on race, gender, or another protected characteristic have historically been more controversial. These measures might include:
- using race as a "plus" factor in hiring (so that an African American applicant would be preferred over a white applicant with the same qualifications)
- using lower cutoffs for test scores for minority or female candidates, or
- setting hiring goals or quotas (that 30% of the workforce in a traditionally male profession be female by 2025, say).
Measures like these provide a benefit to members of one group that comes at the expense of members of another. Proponents of affirmative action argue that this is fair and appropriate, given our country's long history of discrimination, and is the only way to create truly equal opportunity for groups that are disadvantaged.
Opponents argue that discrimination is unfair, no matter who it helps or hurts, and that (primarily) white men should not have to pay the price for historical discrimination.
Learn how to Assert Your Rights.
Affirmative Action for Federal Contractors
Executive Order 11246 requires certain federal contractors to adopt affirmative action programs. Among other things, contractors must analyze their workforce, target any areas where members of protected groups are underrepresented, and come up with specific goals to help address the problem.
Contractors must make good faith efforts to achieve these goals, which might include outreach and recruitment programs, training, and other strategies to expand the pool of qualified candidates. Executive Order 11246 is administered and enforced by the Office of Federal Contract Compliance Programs (OFCCP).
Affirmative Action by Private Employers
Private employers are not subject to the Equal Protection Clause, but their affirmative action plans must meet the requirements of Title VII. The Supreme Court has developed a three-part test to evaluate the legality of private affirmative action:
- There must be a factual basis (of discrimination) for the plan. The employer doesn't have to admit that it discriminated in the past to adopt an affirmative action plan (although such an admission would meet this requirement). For private plans, statistical evidence might also be sufficient, if it shows a "manifest imbalance" in traditionally segregated fields or it would be sufficient to allow the group that would be benefited by the plan to bring a discrimination lawsuit.
- The plan must not "unnecessarily trammel" the interests of employees who don't benefit directly from it. For example, a plan by which the employer would lay off workers to make room for a more diverse workforce would be more detrimental to the laid off workers than a plan that addressed recruitment or hiring.
- The plan must be temporary. Affirmative action measures may last only as long as necessary to undo the effects of past discrimination.
Find out Your Rights When Getting Hired.
Need Legal Help?
If you believe your employer has denied you the benefits of its affirmative action program, or you believe your employer's affirmative action program is illegal, you may want to consult with an employment lawyer. The legal rules that apply to affirmative action programs are evolving, as the Supreme Court and other courts decide affirmative action cases. An experienced attorney can assess your employer's program and help you figure out the best way to proceed.
