How We Act Affirmatively
All federal contractors and subcontractors subject to EO 11246 have requirements related to affirmative action (job advertisement taglines,
While data analysis is an invaluable tool in decision
The original use of “affirmative action” appeared in the predecessor EO (10925, 1961) to EO 11246, which was largely mirrored by EO 11246, including the phrase affirmative action, and including the same specific actions a contractor must take to ensure equal opportunity (see list above). The inclusion of a results-awareness requirement by the new OFCC (authorized by EO 11246) appeared in their first regulations published in May 1968 -
The decision to require goals and timetables (1970 regulations) was also made before the U.S. Supreme Court (in Griggs, 1971) recognized disparate impact as a method of proving discrimination. The comparison of availability to incumbency is now partly included in disparate impact analysis, which compares applicants to incumbents. While the agency allows using the 4/5ths rule or 2 standard deviations for determining if goal setting is required (rather than any difference at all between incumbents and available), it doesn’t shout that from the rooftops; and, if goal setting is required, the regulations require the goal to be at least equal to availability, not within 4/5ths or 2 standard deviations.6 They also require that goals
141 C.F.R. 60-2.35, 41 C.F.R. 60-4.2(d)(2) the content of this post omits (and does not apply equally to) the AAP requirements under Section 503 and VEVRAA because not being disabled or not being a veteran is not protected, while any race / gender is protected.
2“While serving in the Labor Department, I helped devise minority employment goals for government contractors. I now realize that the distinction we saw between goals and timetables on the one hand, and unconstitutional quotas on the other, was not valid. Our use of numerical standards in pursuit of equal opportunity has led ineluctably to the very quotas, guaranteeing equal results, that we wished to avoid.” The Road to Racial Quotas, Laurence Silberman, Wall St. J., Aug. 11, 1977; and more recently, “If the penalty for certain “bad results” is sufficiently severe, then people will tend to say that a rigid quota had been imposed. If penalties for bad results are minimal, then the people will tend to say that a flexible goal has been adopted. Clearly, this difference is one of degree, not of kind.” Affirmative Action and Its Mythology, at page 3, Roland G. Fryer, Glenn C. Loury - Journal of Economic Perspectives, 2005.
4The Philadelphia Plan was challenged for violating Title VII among other things, and upheld by the 3rd Circuit 442 F.2d 159 (3d Cir. 1971), cert. denied. See also, United Steelworkers of America v. Weber, 443 U.S. 193, Dissent of Justice Rehnquist, at p. 226.
5Commentary in NPRM 65 Fed. Reg. 26087, at 26098
6The final rule commentary of the amended AAP regulations in November 2000 discusses the standards for determining if goals are required - the same standards as disparate impact analysis (65 Fed. Reg. 68021, at 68033), but those standards do not appear in the regulations. 41 C.F.R. 60-2.16(c) requires the goal to be at least equal to availability.