Tag Archives: Affirmative action

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.

The U.S. Supreme Court Is Back In Session – What Does This Mean For Employers?

Contributed by Heather Bailey

As with every Fall, the United States Supreme Court is back in session with less than the normal amount of employment cases, but important ones nonetheless.  This session includes the following employment (and employment-related) cases up for decision by our highest court:

  • To be a true “supervisor” for purposes of Title VII (i.e., race harassment), does the individual have to have authority to hire, fire, and discipline the alleged victim in order for the employer to be vicariously liable?  The problem is that some federal appeals courts and the Equal Employment Opportunity Commission find that just overseeing and managing the employees’ day-to-day duties is sufficient.
  • There are two pending class action disputes – i) does the employer’s offer of judgment (aka settlement offer) that satisfies the solo plaintiff’s claims moot the Fair Labor Standards Act’s collective action, vitiating the other member’s ability to be part of the class action; and ii) can a court certify a class of individuals under Rule 23 without the plaintiff(s) first having to show with admissible evidence that all of the class members are entitled to some damages?
  • One ERISA case will be decided as to whether an employer’s health benefit plan can seek full reimbursement from plan participants where the participants sought additional recovery from third parties during personal injury settlements. What is a fiduciary’s “appropriate equitable relief” will be challenged because there are times the participant’s third party recovery is less than the medical expenses accrued.
  • An affirmative action case against the University of Texas — although not employment-related — could have a significant impact on future employment litigation.  Here, the woman is alleging that the use of affirmative action racial quotas for admission is a violation of her Constitutional rights.  The Equal Employment Advisory Council filed a brief for neither party, but asked the Court to take into consideration its decision will have on future employment affirmative action cases for private employers.

Stay tuned as SmithAmundsen will report back immediately once decisions are rendered in these cases.