C. Affirmative Action

Affirmative action involves making a specific effort to recruit individuals on the basis of classifications such as race, sex, religion, veteran status, etc., and taking positive action to ensure that such individuals, when employed, have an equal opportunity for benefits and promotions. According to a 1987 Supreme Court decision, an employer's voluntary affirmative action plan is legal if there is a "manifest imbalance" in the makeup of the employer's workforce for a particular job category, the plan has a limited duration and the legitimate expectations of other workers are not trampled upon.

Voluntary, reasonable affirmative action programs established by employers will be upheld and not found to constitute reverse discrimination provided company plans have flexible goals rather than rigid quotas which exclude a whole class of applicant (e.g., white males). Additionally, a company must be able to justify, statistically or otherwise, the need for an affirmative action plan and the plan must be capable of being eliminated or altered when certain goals are met.

Counsel Comment #6: Since there is no private duty to institute affirmative action policies, do not establish them without conducting a thorough statistical analysis of your workforce. Unless a valid reason exists for implementing affirmative action, think twice before establishing such a plan. If an affirmative action plan is in place, review the program annually. Monitor all areas of employment and establish obtainable goals and timetables. Designate one person to discover potential problems, correct deficiencies and monitor the results. Avoid setting rigid quotas and creating low-quality standards and reverse discrimination.