When would my company need to have an affirmative action program?

Some employers assume that they have to have an affirmative action program in place to comply with the requirements of Title VII and state equal opportunity laws. In reality, while equal employment opportunity laws prohibit unlawful discrimination against applicants and employees because of their race, gender, age, disability or national origin, they usually do not require formal affirmative action programs. Employers generally implement formal affirmative action programs as a condition of doing business with the federal government, but an affirmative action program could also be required by a court as a remedy for discrimination or as a voluntary remedy for past patterns of discrimination.

Three separate laws require certain employers that do business with the federal government to implement affirmative action programs.

Section 503 of the Rehabilitation Act of 1973 requires contractors with 50 or more employees and contracts over $50,000 to take affirmative action with regard to qualified individuals with disabilities.

The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended by the Jobs for Veterans Act, requires contractors to take affirmative action to employ and advance in employment veterans with service-connected disabilities, recently separated veterans and other protected veterans. VEVRAA requires that contractors with 50 or more employees and a contract of $150,000 or more would need a written affirmative action program.

Under Executive Order 11246, federal contractors and subcontractors with 50 or more employees who have entered into at least one contract of $50,000 or more with the federal government must prepare and maintain a written program, which must be developed within 120 days from the commencement of the contract and must be updated annually. The program should cover recruitment, hiring and promotion of women and minorities. Any depository of government funds in any amount or any financial institution that is an issuing and paying agent for U.S. savings bonds and savings notes in any amount must develop and maintain written affirmative action programs as well.

See:

U.S. DOL Affirmative Action 

Office of Federal Contract Compliance Programs (OFCCP)

Jurisdictional Thresholds

Affirmative action programs are not filed with the Office of Federal Contract Compliance Programs (OFCCP); they are kept by the contractor and must be produced in case of an audit by the OFCCP. Starting in 2022, contractors must use the online OFCCP contractor portal to certify whether the contractor has developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

Many states also have affirmative action program requirements for state government contractors.

Courts may require employers to adopt affirmative action programs as a remedy for discrimination under Title VII. A court-ordered program generally:

• May not be overly burdensome on third parties (for example by requiring discharge or layoffs in order to achieve a racial balance).

• May not require the hiring or promotion of unqualified individuals.

• Must be temporary, lasting only until the program's goals are achieved.

Some employers adopt voluntary affirmative action programs to remedy past adverse impact against protected classes. For example, an employer may implement a program to encourage more women to apply for a job category traditionally dominated by men. However, any voluntary program must be narrowly tailored in time and scope so that it remedies only past discrimination.

Affirmative action programs are complex to create. Most employers do not choose to implement such programs unless they are required to do so.