By: Dave Cohen & Dave Sharrer
In June 2023, the Supreme Court made a landmark decision in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard) and SFFA v. University of North Carolina (UNC), ruling 6-3 that the admissions policies at Harvard and UNC violated the Equal Protection Clause of the 14th Amendment by considering an applicant’s race during the admissions process. While this ruling specifically addresses race in college admissions, it raises broader questions about the future of affirmative action in employment.
For those of us involved in federal contract compliance, it is important to clarify that “affirmative action” in the context of employment is fundamentally different from its use in college admissions. Contrary to some popular misconceptions, affirmative action for federal contractors does not mean quotas, set-asides, or preferential treatment for protected class members – such practices are explicitly illegal. In employment, merit-based selection always takes precedence over protected class status. However, the term “affirmative action” has become a loaded term, often misunderstood and associated with these myths.
To counter these misconceptions and foster a clearer understanding, we propose rebranding “Affirmative Action Plans” for employers to “Non-Discrimination in Employment Plans.” This is not a suggestion to change the substantive components of an Affirmative Action Program. The statistical analyses, narrative components, and other requirements would remain intact. The program would remain the same. We are simply recommending a shift in terminology.
This change could apply in several areas, including:
- On the cover page of the program narrative
- During mandatory training sessions
- In any internal communications
The term “Non-Discrimination in Employment Plan” aligns with current practices of the Office of Federal Contract Compliance Programs (OFCCP), which already emphasizes non-discrimination in its compliance evaluations. This term is particularly fitting, considering the OFCCP’s enforcement often includes cases where the impacted groups are Whites and/or males. By moving away from the loaded term “affirmative action,” the concept of promoting non-discrimination in employment becomes more straightforward and less divisive, potentially garnering broader bipartisan support amongst employees and managers.
A further benefit of this rebranding is the potential for increased engagement from managers and employees who may feel alienated by the term “affirmative action” but have no objections to the concept of non-discrimination. This shift could enhance buy-in and participation in diversity initiatives without sacrificing any of the program’s core elements.
We’ve already begun to see positive results from employers using this approach. One client who implemented this change reported a significant shift in attitude among managers. Previously defensive or resistant participants in training sessions became more receptive and willing to engage in meaningful discussions. (It is essential to note in these internal meetings that Whites and males are also protected classes under Executive Order 11246.)
Some may question whether changing the name of the plan is permissible under current regulations. Our thorough review of the regulations found no specific requirements mandating that the title of an internal training program or narrative cover page be labeled as an “AAP.” The regulations do not even mention the words “affirmative action plan”. The regulations at 60-2.10 define the purpose of the “program” as a management tool designed to ensure equal opportunity and non-discrimination. If OFCCP did take issue with this change, it’s unclear what regulatory provision they would cite or what the remedy would be. Would they require the contractor to revert to the old title?
We invite the OFCCP to consider this rebranding as a positive step forward. It benefits both contractors and the OFCCP by more effectively addressing non-discrimination in the workplace and advancing equal employment opportunity. We suggest that when the OFCCP proposes its upcoming Modernization of Affirmative Action Regulations, it officially considers adopting this updated terminology.
