Currency is a question of fact that must be determined on a case by case basis. Written plans usually will be dated; however, plans need not be written. To establish the date of an unwritten plan, or of a written but undated plan, written corroboration should be obtained. This includes internal memos, letters, and the information obtained in order to verify the existence of an unwritten plan. Many plans will contain timetables.
Specific numerical goals and timetables should be measured against progress to determine currency. If the plan does not contain specific numerical goals and a timetable, the general goals and objectives should be evaluated against the progress made.
For such a plan to remain current, there should be a continuing and related series of actions taken pursuant to it. Another indication that such a plan is still current is if it is periodically e. It should be noted that there are no absolute answers; each case will have to be weighed on its merits. The EOS should look for good faith on the part of respondent in terms of positive acts to keep the plan current and to accomplish the general goals outlined in the affirmative action plan. If a plan is found to be out of date, the charge should be processed under the other sections of this Manual.
That section provides that persons acting in reliance on a written interpretation or opinion of the Commission will not be subject to any liability or punishment because of the action. This written opinion can be asserted by a respondent as a defense in the event that new charges involving similar facts and circumstances are thereafter filed against that respondent. The Guidelines themselves are a written interpretation or opinion of the Commission.
Corroborative evidence should be obtained from the respondent, such as documents and memos, affidavits or statements from policy makers, etc. In the absence of evidence of bad faith, good faith will be presumed. A no cause LOD should still be issued see Exhibit F , but with the following addition as the last paragraph:. State the reasons given by OLC. Even if a respondent did not specifically rely on the Affirmative Action Guidelines, the respondent may assert that the action complained of was taken pursuant to and in accordance with a plan or program of the type described in the Guidelines.
It should be noted that under this subsection a plan can predate the adoption of the Affirmative Action Guidelines, without having to have been reviewed, revised, and reaffirmed after that date. An approved affirmative action plan is one undertaken pursuant to the Commission's own enforcement efforts or other laws or proceedings, that receives prior explicit approval from an agency, court, or other appropriate body. In order to avoid subjecting a respondent to conflicting legal requirements and to give maximum effect to anti-discrimination efforts of various governmental bodies, the Commission has determined that action taken pursuant to such a plan does not give rise to liability under Title VII.
The following procedures will be followed for charges where a respondent claims that an alleged discriminatory action was taken pursuant to such an approved plan. These are plans approved under Executive Order , as amended E. Where it is not clear whether the respondent is subject to E. An affirmative action plan will have been submitted to and approved by the Department of Labor under E. A copy of the plan and any letters expressing approval by the agency should be obtained from the respondent or the government agency involved.
A number of government agencies had civil rights or federal contract compliance offices which were authorized by the Department of Labor to approve affirmative action plans. Approval by these agencies or the Department of Labor directly would be indicated either by a letter from the appropriate official accompanying the plan or agreement or by the signature of that official directly on the plan or agreement.
If there is any uncertainty as to the authority of a particular agency, contact the OFCCP regional or area office nearest you. If there is any uncertainty as to the authority of the approving official, contact the agency or office directly.
OFCCP will approve both the plan and all other aspects of the review. Approval will take the form of either a letter to the employer from the Director or Assistant Regional Administrator of the area or regional office or a conciliation agreement signed by the respondent and either of these officials.
Plans presented as approved by OFCCP will only be accepted as such if accompanied by such a letter or agreement. If respondent's actions were taken after the period of the approval or agreement expired i. See Commission Decision No. A copy of the plan should be obtained from the respondent or the appropriate EEOC district office.
These are plans ordered by, or developed in agreement with, a state or local agency under a state or local fair employment practices statute or ordinance. A copy of the order, agreement, or submission should be obtained from the respondent or the agency. If there is any uncertainty as to who has approval authority, the issuing agency should be contacted.
When a respondent offers a plan that is part of a court order or a consent decree i. The respondent will often be able to provide copies of the initial order or decree containing or establishing the plan and subsequent orders or decrees including dismissals of the case. If the respondent does not have these, the respondent should be asked to obtain them from the issuing court. Should this not be possible, the EOS should obtain from the respondent the name of the issuing court, the name of the suit giving rise to the order s or decree s , the docket number if known , and the approximate date s of issuance.
Then the Office of the Clerk of the issuing court should be contacted and copies requested. The initial contact should be by telephone; the Clerk will inform you if a written request is necessary. This will usually be apparent from the order or decree. If it is not:. If the respondent is unable to provide the decision, the EOS should contact the Clerk of the issuing Court or the office of the issuing judge.
In doing so, the EOS should avoid referring to the respondent as "a respondent," and should not mention that a charge has been filed against that employer, employment agency, or union.
Example - A group of instructors at a state university participates in a protest against the university's grading policies. Because of their activities, the instructors are fired. They bring suit in federal district court, claiming that their First Amendment right to free speech was violated by the firing. The court agrees and orders the university to rehire them.
This order should not be considered as issued to enforce a fair employment practices law or regulation. Should an individual bring any sort of Title VII charge related to these rehirings, the state university could not raise the court order as an affirmative action defense.
This will usually be apparent from the initial or a subsequent order or decree. If no expiration date is specified in any of these documents, and there is no subsequent order or decree of dismissal, the plan should be considered as still in effect. These are plans approved or ordered by, or developed in agreement with, officials of federal agencies enforcing Federal laws, regulations, or orders other than Title VII or Executive Order The laws, regulations, or orders must in part seek to ensure equal employment opportunity.
Example - As part of the process of receiving funds under the Comprehensive Employment and Training Act, a grantee might be required to submit an affirmative action plan to the Department of Labor. Also included here are plans approved, for example, by a state revenue sharing office under a state revenue sharing law.
In order to invoke affirmative action as a justification for a challenged policy or practice, a respondent must demonstrate that the policy or practice that is the subject of the charge was based on the approved affirmative action plan. This can be done in one of two ways. A respondent's plan may be couched in general terms, leaving respondent free to achieve the plan's objective as it sees fit; e.
The respondent must then provide evidence of how a specifically challenged policy or practice was related to the general provisions of the plan. The EOS should determine whether the action was reasonable; i. Example - A respondent may have disproportionately few women in its mechanics department. The plan that has been approved simply states that the respondent will correct this imbalance.
Although it has attempted to recruit women, the respondent's longstanding requirement that applicants have five years of mechanic's experience has deterred women from applying. The respondent might then take reasonable action to correct the imbalance, such as affirmative recruitment, implementation of a training program with goals and ratios, or dropping the experience requirement -- all steps that would logically lead to achievement of the plan's objective hiring more women.
In some instances the approved affirmative action plan will specifically set forth the challenged policy or practice. The EOS should check to see if the respondent's action or policy is expressly set forth in the plan or program. Example - R developed and implemented an affirmative action plan as part of a Commission conciliation agreement. To reach this goal, the plan provides that two out of every three vacancies will be filled by women.
CP, a male, applies for a job as a medical technician and is rejected in favor of a woman. If R can show that this alleged discriminatory selection decision resulted from an application of the two-out-of-three rule, then this adherence to the plan will justify the decision.
In hiring and promotion situations, if the respondent's action the selection was taken pursuant to the plan or program, then it may not be necessary for the EOS to compare the relative qualifications of the charging party and the selectee. The EOS should determine whether the selectee is qualified for the position; if so, the fact that charging party or other applicants might be better qualified may be irrelevant.
However, if the selectee was not qualified for the position, the EOS should conclude that the action was not based on the affirmative action plan; e. When an affirmative action plan is approved, but adherence to the plan is not found to be the basis for the complaint or justification, the EOS should either:.
The plan or program may still provide an affirmative action justification for the challenged policy or practice, if the affirmative action claim meets the standards for "voluntary" plans or programs. A "voluntary" plan is one developed on the employer's own initiative, and not ordered or approved by a governmental agency or court.
There are conflicts among the circuit courts as to whether a wholly voluntary plan is permissible; whether an administrative, legislative, or judicial finding of past discrimination is required before an affirmative action plan can be adopted; or whether some sort of administrative, legislative, or judicial approval of the plan is necessary. Much of this conflict stems from the Supreme Court's decision in Regents of the University of California v.
Bakke , U. A number of courts have interpreted Bakke as allowing wholly voluntary plans, without any formal finding or approval; this is the Commission's position. Zaslawsky v. Board of Education, L. Schools , F.
City of Detroit , F. Department of Corrections , 95 Cal. Other courts have interpreted Bakke as requiring a formal finding of past discrimination before an affirmative action plan can be adopted. Regents of the University of California v. Bakke , supra , opinion of J. Powell, U. Brennan, White, Marshall, and Blackmun, U. Young , F. Another interpretation might require some sort of formal administrative, legislative, or judicial approval.
City of Miami , F. Again, the Commission's position is that a wholly voluntary plan, without any formal finding or approval, is permissible.
In order to make this determination, the EOS should obtain a written statement from the respondent describing the affirmative action plan. The statement should include an explanation of why the plan wasn't put in writing. These goals inform our recruitment efforts and helps hiring managers identify job boards, outreach events, community organizations, and other resources to reach diverse prospective staff. It is best-practice to embed diversity into all aspects of your recruitment efforts, and establish consistent pipelines to reach prospective candidates who may fall outside of the normal channels of recruitment.
While affirmative action goals provide some direction, our commitment to inclusive excellence requires we strive for diversity in all its forms in our applicant pools.
Affirmative Action Program Our affirmative action program serves as a working document that outlines the gender, race, veteran and disability status of our current staff at UC Davis within different job groups, and compares that to the availability of qualified candidates locally, statewide, and nationally.
Affirmative action is intended to promote the opportunities of defined minority groups within a society to give them equal access to that of the majority population. Much individual discrimination occurs in the workplace. Institutional discrimination often stems from prejudice, but institutions can also practice racial and ethnic discrimination when they engage in practices that seem to be racially neutral but in fact have a discriminatory effect.
Examples of institutionalized discrimination include laws and decisions that reflect racism, such as the Plessy vs. Ferguson U.
Supreme Court case. The verdict of this case ruled in favor of separate but equal public facilities between African Americans and non-African Americans.
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