Affirmative action is a much discussed and debated subject. We hear political candidates talk about it. We read about it in newspapers and magazines. Occasionally, we learn that courts make rulings on the subject. But how does it relate to employment law?
In addition to affirmative action, you hear a lot about "equal employment opportunity." There is a distinction between the two concepts that is often confused. Most of you are required to be equal opportunity employers. This means you can't discriminate on the basis of a person's race, color, sex, religion, national origin, age, or disability.
On the other hand, most camps are probably not required to take affirmative action — at least from the standpoint of having a plan. How so?
Affirmative action is more than simply practicing equal employment opportunity or not discriminating. It involves proactive efforts to achieve and maintain a statistically balanced workforce for various protected classes of applicants and employees.
Who must have Affirmative Action Plans?
Under Executive Order 11246, those of you with fifty or more employees and federal nonconstruction contracts or subcontracts of $50,000 or more must prepare an affirmative action plan within 120 days of the commencement of the contract. That plan must contain:
- a detailed analysis of your current workforce by race and sex;
- an analysis of whether minorities or females are statistically under-represented or underused in the workforce;
- the establishment of rules for job categories in which minorities or females are under-represented;
- action orientation programs necessary to achieve the stated goals and remedy the identified problem areas; and
- timetables for achieving those goals.
If the percentage of minority or female employees in your workforce is substantially lower than the percentage in your camper population or your community, you must state in the affirmative action plan that you are going to correct that imbalance — and then go do it!
Two other federal laws that determine if you need to be concerned about an affirmative action plan are the Rehabilitation Act of 1973 (dealing with handicap discrimination) and the Vietnam Era Veterans' Readjustment and Assistance Act (dealing with disabled and Vietnam era veterans). Most of those laws require those of you with fifty or more employees and federal contracts or subcontracts of $50,000 or more to develop written affirmative action plans.
Those affirmative action plans must contain procedures for identifying and removing barriers to employment and advancement as well as enhancing your recruiting efforts. If an affirmative action plan is required, it must apply to all of your work, all of your facilities, and all of your employees — not just your employees or facilities involved in the federal contract.
If you are investigated by the Office of Federal Contract Compliance Programs (OFCCP) and found to be out of compliance with the affirmative action requirements, it can result in contract cancellation, termination, or suspension as well as back pay for workers who were discriminated against. Also, you may be declared ineligible to participate in government contracts in the future.
Perhaps most important, when you're trying to determine if you're required to have an affirmative action plan, obtain legal advice.
The advice above first appeared in the "Indiana Employment Law Letter," November 1999, Vol. 9, No. 11. Reprinted here by permission of the publisher. Call 800-274-7664 for subscription information.
Note From the Editor
While many if not most camps will not be required to file written affirmative action plans, we would be remiss to not note that as the face of America changes, camps have an obligation to reach out to all groups . . . that is if we really believe that camp gives all kids a world of good. Making your camper population more diverse and hiring a staff that reflects that diversity becomes important for so many reasons.
Further, exemption from writing an affirmative action plan does NOT exempt camps from equal-opportunity-under-the-law requirements. Understanding the difference was the purpose of this article.
ACA's Code of Ethics states that "I shall conduct myself in a manner consistent with the association's mission . . . by promoting better camping for all." Use your recruitment opportunities well this spring to strengthen your camper and staff population with a broad range of applicants and hires.
Originally published in the 2000 Winter issue of The CampLine.