Question: Now that the Supreme Court has ruled that the affirmative action programs at Harvard and the University of North Carolina are unconstitutional, what does this mean for the written affirmative action plans (AAPs) that we’re required to maintain as a federal contractor?
Answer: From a legal standpoint, the decision has no impact on federal contractors’ AAPs, although if it decreases the number of Black and Hispanic college graduates, it could eventually result in greater difficulties recruiting them as candidates for professional and management jobs. The Supreme Court’s decision addressed self-imposed affirmative action initiatives, in which the universities were alleged to have voluntarily used race as a factor in deciding who to admit as incoming students, particularly favoring Black and Hispanic candidates over white and Asian candidates (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, U.S., June 2023).
The Court’s decision has nothing to do with the legal requirements for employers with at least 50 employees and a federal contract or first-tier subcontract worth at least $50,000 to maintain written AAPs and update them annually. Most importantly, all employers, including federal contractors, are prohibited from discriminating against applicants and employees based on race/ethnicity (any race/ethnicity, not just certain ones!), gender, disability status, or protected veteran status. Federal contractors’ written AAPs provide an avenue to review past decisions to look for potential discrimination or lack of access – they are never meant to be used as the basis for making current employment decisions in hiring, promotion, or compensation. For a more detailed explanation, see our previous article: Q&A: Affirmative action ruling won't affect federal contractors (11/3/2022 Vigilant newsletter).
However, you may need to step up your game in recruiting, mentoring, and retaining qualified employees. This is a continuing challenge for many employers, but federal contractors’ AAPs turn the spotlight on where the gaps are. If you don’t have a robust pool of qualified applicants and internal candidates that reasonably reflect the race/ethnicity and gender of your geographic recruiting area (for external applicants) and your “feeder” job groups (for internal candidates), then you’ll need to get creative on improving your pool. You’ll need to tailor your strategies to the type of opening. For example, if you’re looking to fill entry-level production jobs, that might mean connecting not only with local graduating high school seniors but also those who left high school early and already have a year or two of employment experience. If you currently require a diploma or G.E.D., you may want to evaluate whether that’s actually a helpful standard or whether you’d be better off providing focused training for any special math, reading, or writing tasks required for the job. If you use Vigilant to prepare your written AAP, your Vigilant affirmative action representative would be happy to work with you to develop ideas for accomplishing your AAP goals.
