Affirmative Action

Affirmative action is an attempt to make up for past discrimination and its lingering effects.  However, affirmative action can itself become unlawful discrimination.  Generally, programs that focus on race-neutral policies like “diversity” will more likely be legal.  But practices that favor one race over another are illegal.

What is Affirmative Action?


What affirmative action in the employment context boils down to is an attempt to promote “equal employment opportunity.”  It typically involves employers taking actions to remedy imbalances in the workplace or otherwise to benefit historically or currently disadvantaged groups of people.

Affirmative action programs may mean employers make various decisions while expressly considering factors such as the race, national origin, disability, or gender of employees or job applicants.  An affirmative action program may be voluntary, required by law or a court order in some cases, or it may be required as a condition of receiving a government contract.

When is it Legal?

Title VII does not require all employers to engage in affirmative action, but it does not necessarily forbid it either.  Similarly, in Texas, Chapter 21 of the Texas Labor Code states specifically that “policies that incorporate work force diversity programs” are not illegal.  Thus, voluntary affirmative action programs can be legal.

On the other hand, an employer (including a private company) that has been sued for engaging in illegal discrimination can be ordered by the court to set up an affirmative action program to correct its past acts of discrimination.   

Likewise, government agencies may be required by law to engage in affirmative action.  Governments like cities or states can voluntarily set up programs to favor minority contractors, but are not necessarily required to do so even if the government had previously discriminated against minority contractors.      

Federal contractors can also legally be required to set up affirmative action programs, in addition to being required not to discriminate against certain groups.  In particular, the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Act of 1974 require contractors to favor people with disabilities and certain veterans.  Generally, a contractor will have greater obligations to set up affirmative action programs based on the size of the contract it has with the federal government.  What the contractor may be required to do can also vary based on the type of work it is doing for the government.

The Age Discrimination in Employment Act, which prohibits discrimination against workers over 40 years old, generally allows employers to favor older workers over younger ones.  

When is it Illegal?


While affirmative action may be allowed or sometimes even required, it is also true that affirmative action can involve a company or government discriminating among groups of people in ways that may seem similar to what would otherwise be illegal.  Some kinds of affirmative action can cross over that line and actually become illegal.  

In particular, courts will subject race-based affirmative action programs to “strict scrutiny,” meaning a racial affirmative action program cannot be any broader than necessary to meet the needs of the employer, and even then only if those needs are great enough.  In other words, it may be illegal for your employer to make decisions based on race, even though they favor minorities, if they do not have a good reason to do so or their decisions are not related to that reason.

“Quotas” that require an employer to hire a certain number of minority applicants regardless of their qualifications, for instance, are usually illegal.  However, sometimes quotas may be ordered by the courts.  Similarly, an employer with a seniority program cannot lay off senior employees of one race while keeping less senior employees of another race if the favored employees had not previously been discriminated against by the company or the laid-off employees.  

Sometimes city or state governments will establish “contract set-asides” reserving a certain percentage of government contracts to go to minority-owned businesses. However, race-based set-asides are illegal if they are only designed to respond to broad, societal discrimination rather than to correct past discrimination by that city or state in particular.    

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Contact us if you believe that you have be discriminated against because of an affirmative action program.