Category Archives: Affirmative Action

Happy Memorial Day! A Quick Guide for Affirmative Action Programs for Hiring Veterans with Disabilities

Contributed By Allison P. Sues, May 26, 2021

With the upcoming Memorial Day holiday offering an opportunity to acknowledge and appreciate the sacrifice made by military families, it seemed a fitting time to revisit the legal nuances of providing preference in hiring veterans with disabilities. Veterans report high instances of service-connected disabilities, including blindness, deafness, missing limbs, major depressive disorder, and post-traumatic stress disorder. Some laws require employers to provide preference to disabled veterans. Some employers voluntarily create affirmative action programs for veterans with disabilities. Here is what employers should know. 

Can an employer give preference in hiring to a veteran with a disability?

Yes. There is no law that prevents an employer from voluntarily creating a program that gives preference in hiring to qualified veterans with disabilities. Moreover, there are various laws in place that may require an employer to provide affirmative action to veterans. For example, the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) requires all business with a federal contract or subcontract exceeding $100,000 to take efforts to employ and advance veterans with disabilities. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to make reasonable efforts and accommodations to return veterans with service-connected disabilities to their position prior to military service or to help qualify the veteran for a job of equivalent seniority, status, and pay. 

May an employer ask if an applicant is a disabled veteran? 

Yes. While the Americans with Disabilities Act (ADA) generally prohibits employers from making medical inquiries, they may do so for affirmative action purposes. Therefore, an employer may ask applicants to voluntarily self-identify as a veteran with a disability if it is collecting this information to undertake affirmative action required by a veterans’ preference law, or to provide benefits to these applicants through the employers’ own voluntary program.   

If an employer requests that applicants self-identify as a veteran with a disability, the request must clearly state that this information is intended for use solely in connection with its legal affirmative action obligations, or voluntary affirmative action efforts. Employers should also confirm with the applicants that the information will be kept confidential, and that the applicant’s decision to disclose this information is completely voluntary. Keep all records of disability-related information in a separate, confidential file.

What are some steps that employers can take to attract, recruit, and hire veterans with disabilities?

  • Job postings and advertisements may encourage veterans with disabilities to apply and should explicitly state that the organization is an equal opportunity employer.
  • Employers may send job opening information to organizations that job-train veterans and assist veterans with finding employment.
  • Employers may attend job fairs that connect employers with qualified veterans searching for work.
  • Employers should review all language used in job postings to make sure that nothing would dissuade a veteran with a disability from applying. Job postings should not include language calling for “excellent health” or listing required physical abilities if an individual with a disability would be able to accomplish the job function differently through an accommodation.
  • Employers must provide accommodations to veterans with disabilities in the application process where necessary. For example, employers should provide applications and other written materials in an accessible format, whether that be in large print, Braille, or electronically. Employers should also conduct interviews in accessible locations. 

Federal Contractors and Subcontractors Top 10 Affirmative Action Checklist

Contributed by Heather Bailey

Any federal government contractor or subcontractor can testify to how much work really goes into complying with Affirmative Action obligations. Here is just a quick, non-exhaustive checklist to highlight many of your affirmative action to-dos:

  1. Are you “listing” your job openings with the nearby unemployment agencies?
  2. Are you asking your job applicants to self-identify their gender, race, veteran status and whether they are disabled or not?
  3. Are you asking those individuals that you have given an offer of employment to self-identify again their veteran status and whether they are disabled or not?
  4. Did you perform your annual compensation review to determine any pay disparities among employees in the same job groups and titles?
  5. Did you file your EEO-1?
  6. Did you file your VETS-4212 form?
  7. Did you update and post your affirmative action policy statement for employees and applicants to see?
  8. Did you have a refresher course with management and those employees in charge of hiring on the importance of affirmative action and their obligations in hiring and managing the workforce?
  9. If you are a contractor who hires subs to work on federal government work, did you include the requisite EEO and affirmative action compliance language in your agreement with your sub?
  10. Did you update your annual affirmative action plan?

It’s best to seek guidance from your employment labor counsel to ensure you are in compliance with all affirmative action requirements. Waiting until the OFCCP audit letter comes may be too late.

OFCCP: Affirmative Action Contractors Update on Compliance with Sexual Orientation and Gender Identity Obligations

Contributed by Heather Bailey

This is the first time since 1974 that the protected classes for affirmative action contractors have been modified.  The effective date for compliance is April 8, 2015 for any new or modified contracts (more than $10,000). At this time, you must begin implementing the new requirements related to sexual orientation and gender identity applicants and employees. The OFCCP held webinars in March to give contractors guidance on what they are expecting out of these new requirements.  Here is what we learned:

  • It is encouraged that all affirmative action contractors should follow these adjustments and incorporate these two protected classes in their affirmative action efforts (even if you don’t fall under the new regulations).
  • Job Advertisement Tag Lines – if it currently lists all protected statuses (e., race, national origin, sex, religion), then you must include sexual orientation and gender identity with the full list.  Alternatively, if you do not list the specific classes it is appropriate to just have Equal Employment Opportunity Employer.  One exception is if you are covered by the veteran and individuals with disabilities regulations.  If so, the OFCCP opined a sufficient tag line is “Equal Employment Opportunity Employer/Veterans/Disabled.”  Please note that the OFCCP warned that the abbreviation “LGBT” should not be used since the abbreviation does not cover all individuals identified under sexual orientation and gender identity.
  • EEO is the Law Poster – they are creating a supplement in the near future, soon after the effective date.  In the meantime, ensure the current version is posted.
  • Offered Benefits – the basic rule of thumb is if you offer the benefit to opposite sex married couples, you must offer the same to same sex married couples who are married in a state or territory that recognizes those marriages.  You are not, however, required to give those benefits to individuals in civil unions or domestic partnerships unless of course you offer the benefits to similar opposite sex unmarried couples.

What has not changed with your obligations for the addition of sexual orientation and gender identity individuals:

  • No new placement, outreach and employment goals;
  • No self-identification requirement;
  • No data collection requirement;
  • No Handbook or Affirmative Action Plan update required (OFCCP did opine it was a best practice to include these protected classes in any EEO clause);
  • No mandatory training (but still encouraged); and
  • No change to religious exemption.

Why is this important?  Not only is this a good business practice to incorporate these two classes of individuals in your equal employment opportunity efforts, but the OFCCP will share and coordinate with the EEOC with a joint investigation and/or referral if they notice any type of discriminatory impact, intent, practice, etc. for individuals and even class complaints.

It is recommended you seek counsel advisement on getting started to ensure compliance, but the OFCCP also offers resources for contractors in order to give guidance and FAQs at http://www.dol.gov/ofccp/LGBT/LGBT_resources.html.

Supreme Court Upholds Michigan Ban on Affirmative Action

Contributed by Suzanne Newcomb

Yesterday the Supreme Court upheld Michigan’s ban on affirmative action programs overturning a 6th Circuit Court of Appeals decision which had ruled the ban an unconstitutional violation of the U.S. Constitution’s Equal Protection Clause. The text of the opinion is found at http://www.supremecourt.gov/opinions/13pdf/12-682_j4ek.pdf

Michigan’s ban on affirmative action was enacted as Article I, Section 26 of its State Constitution and, in relevant part, prohibits governmental entities, including public colleges and universities, from granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Michigan voters passed the ban in response to a pair of 2003 U.S. Supreme Court decisions. Gratz v. Bollinger struck down the University of Michigan’s undergraduate affirmative action program as unconstitutional while Grutter v. Bollinger upheld the more limited affirmative action program used at the University of Michigan’s law school.

Although the decision was 6-2 in favor of upholding the ban, the Justices splintered on how they arrived at that decision. Justice Kennedy delivered the plurality opinion and was joined by Justice Alito and Chief Justice Roberts (who also wrote his own concurring opinion). Justice Scalia wrote a concurring opinion which Justice Thomas joined and Justice Breyer also wrote a concurring opinion. Justice Sotomayor wrote an impassioned dissent which Justice Ginsburg joined. Justice Kagan recused herself.

Justice Kennedy made clear the decision does not outlaw affirmative action. This case, he said “is not about the constitutionality or the merits of race-conscious admissions policies in higher education.” This opinion does “not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met.” The question here, he explained, is “whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”

The decision distinguished cases in which voter-approved bans had a “serious risk, if not purpose, of causing specific injuries on account of race” citing cases dealing with voter-approved bans on fair housing measures and busing aimed at desegregating schools. Those bans remain unconstitutional, the Court reasoned, because they encouraged discrimination. The Court viewed the Michigan ban differently, stating the “question is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued.” Here, the Court concluded, “there was no infliction of a specific injury” and declined to extend its prior decisions “to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended.”

The Court focused on race-based affirmative action programs in public higher education, but the long term effects of the ruling are likely much broader. As the Court noted, similar bans exist in other states. To date seven other states, California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire, have bans similar to Michigan’s. The case represents another blow to what remains of affirmative action programs in general and paves the way for other states to enact similar bans.  However, employers with affirmative action obligations based on their status as a federal or state contractor should note that this decision in no way removes those obligations.