Comment by David C. Ankeny
“An affirmative action program is a set of specific and result-oriented procedures to which the contractor commits itself to apply every good faith effort. The objective of those procedures plus such efforts is equal employment opportunity.”
Federal contractors who employ fifty or more individuals and complete government contracts totaling $50,000 or more per annum must comply with the 1964 Executive Order 11,246 by implementing “voluntary” affirmative action plans. The Office of Federal Contractor Compliance Programs (OFCCP), a branch of the Department of Labor's Employment Standards Administration, promulgates guidelines and conducts audits of federal contractors to ensure compliance with the executive order. In a very real sense, there is nothing voluntary about affirmative action planning for federal contractors.
The United States Supreme Court has ruled that title VII of the 1964 Civil Rights Act and the fourteenth amendment of the United States Constitution prohibit discrimination. While tension exists between the OFCCP's guidelines for federal contractors and Supreme Court jurisprudence, a federal contractor still has an affirmative duty to ensure that it takes affirmative action in its employment decisions.
This Comment will demonstrate how to generate the statistical portion of an affirmative action plan for women and minorities that will satisfy the requirements of the OFCCP, without running afoul of Supreme Court decisions. As a preliminary matter, this Comment briefly describes the OFCCP's affirmative action guidelines. The bulk of the Comment is devoted to the actual production of an affirmative action plan.
A federal contractor must continually monitor information on the status of employees when creating and using an affirmative action plan. The federal contractor must demonstrate that its employment practices comply with Executive Order 11,246 and the OFCCP's guidelines by documenting employment decisions on hiring, termination, promotion, demotion, and transfer. This Comment describes how these employment decisions should be recorded, and how the documentation should be generated to demonstrate compliance. The Comment, however, is not a substitute for legal counsel.
About the Author
David C. Ankeny.
Citation
65 Tul. L. Rev. 1183 (1991)