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Managers, Supervisors and HR Professionals

Guide to Managing Human Resources

Chapter 2: Equal Employment Opportunity/Affirmative Action

Summary

The purpose of affirmative action is to ensure equal employment opportunity by requiring all federal contractors to take affirmative action to prevent discrimination in employment practices and to report on their progress. Specifically, affirmative action requires contractors to implement affirmative action plans to assure equal employment opportunity for underutilized minorities and women, people with disabilities, veterans of the Vietnam era, and special disabled veterans. These efforts are outlined in the annual Campus Staff Affirmative Action Plan (AAP) (http://hrweb.berkeley.edu/aaeeo/plan/aaplan.htm), available for review in the Staff Affirmative Action Office, Human Resources and on this website at http://hrweb.berkeley.edu/hrsaao.htm.

As supervisors, managers, and administrators, you are responsible for helping the campus fulfill its equal opportunity responsibilities. This is accomplished by making good faith efforts toward meeting affirmative action goals and ensuring a workplace that is free of discrimination and harassment. Our goal is to employ and retain a diverse workforce of the best-qualified individuals.

Guiding Principles

Equal Employment Opportunity (EEO) is a term used by the federal government to refer to employment practices that ensure nondiscrimination on the basis of race, sex, religion, color, national origin, physical or mental ability, medical condition, ancestry, or age. The principle behind EEO is that everyone should have the same access to opportunities. EEO is legally mandated for all federal contractors.

Affirmative action is one aspect of the federal government's efforts to ensure equal employment opportunity. The purpose of affirmative action programs is to promote fairness and address the effects of past discrimination in employment by encouraging targeted outreach efforts to attract underutilized minorities and women.

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Equal Employment Opportunity/Affirmative Action Defined

As a supervisor, Equal Employment Opportunity means you:

  • provide equal access to all available jobs, training, and promotional opportunities
  • provide similar benefits and services to everyone
  • apply all policies and practices consistently to applicants and staff
  • do not differentiate among applicants or employees on the basis of race, color, national origin, religion, sex, physical or mental disability, medical condition, ancestry, marital status, or age.

In other words, EEO forbids employment discrimination. It requires the elimination of any bias in personnel activities.

Affirmative action is a set of specific, results-oriented programs and activities designed to correct underutilization of minorities and women in the workplace.

Your Role

As a supervisor, you are often faced with personnel decisions: Should you hire this applicant? Whom should you promote? What corrective action should you take with an employee?

Every one of your personnel-related actions is affected by EEO law. If you violate EEO law, the University must bear the responsibility. To prevent such violations, it's not enough to simply know that the law forbids discrimination. You should know the specific kinds of discrimination to avoid in your day-to-day activities with job applicants and staff. Your job involves many different personnel functions, including hiring, training, promotion, termination, and others. Below are examples of actions you can take to fulfill EEO/AA responsibilities:

  • Ensure bias-free selection processes by forming diverse selection committees, evaluating candidates on job-related criteria, and completing and maintaining necessary records such as the Interview Data Form.
  • Promote accountability for EEO/AA by ensuring that responsibilities in this area are clearly indicated in the applicable job descriptions of managers and supervisors who report to you.
  • Evaluate the performance of your supervisory staff in implementing established EEO/AA responsibilities.
  • Educate yourself by participating in relevant training and education programs on campus and encouraging subordinate staff with EEO/AA responsibilities to do the same.
  • Provide reasonable accommodations such as assistive devices, job restructuring, and site modification for disabled staff members.
  • Maintain a hospitable work environment; ethnic jokes and harassment of any kind should not be tolerated.
  • Review all personnel activities for potential differential impacts on different groups and unintentional bias in such personnel actions as selection, salary increases, promotion, reclassification, layoff, corrective action, training, and termination.
  • Encourage and invest in staff development, ensuring that all staff have access to opportunities.
  • Make sure all staff are informed of the University's non-discrimination policy and the procedures for resolving discrimination complaints.

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Laws and Policies

Supervisors are responsible for meeting the commitments established by campus policies and federal and state regulations. The Chancellor annually distributes the campus policy on EEO/AA to members of the campus community. Campus commitment to EEO/AA is further shown by adherence to federal and state legislation and University policy, including:

  • Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, sex, color, religion, and national origin.
  • Executive Order 11246, as amended, forbids employment discrimination based on race, color, religion, sex, or national origin by federal contractors and subcontractors and requires them to develop affirmative action plans and to take positive steps to eliminate employment bias.
  • Age Discrimination in Employment Act of 1967 prohibits discrimination against employees and applicants who are over 40 years of age.
  • Title IX of the Education Amendments of 1972 prohibits sex discrimination in educational programs or activities that receive federal funds.
  • The Vocational Rehabilitation Act of 1973 requires federal contractors to take affirmative action to employ and promote qualified handicapped persons (Section 503) and prohibits discrimination against handicapped persons in any program or activity receiving federal financial assistance (Section 504).
  • Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended requires employers to take affirmative action to employ and advance disabled veterans and qualified veterans of the Vietnam era.
  • The Americans with Disabilities Act of 1990 (ADA) protects qualified individuals with disabilities. The Act requires employers to make reasonable accommodation to facilitate employment of disabled individuals unless the employer can show the accommodation would impose undue hardship on the operation of business.
  • The Civil Rights Act of 1991 expands the scope of relevant civil rights statutes to provide adequate protection to victims of discrimination, and provides appropriate remedies for intentional discrimination and unlawful harassment in the workplace.
  • The Regents' Resolution SP-2 prohibits the University of California from using race, religion, sex, color, ethnicity, or national origin as criteria in its employment practices. It does not prohibit any action that is strictly necessary to establish or maintain eligibility for any federal or state program, where ineligibility would result in a loss of federal or state funds to the University. SP-2 became effective on January 1, 1996.
  • California State Proposition 209 prohibits the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. It does not prohibit action that must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state. Its provisions are similar to those of the Regents' Resolution SP-2. Proposition 209 became effective in November 1997.
  • University policy prohibits discrimination in employment on the basis of race, color, national origin, religion, sex, physical or mental disability, medical condition (cancer-related), ancestry, marital status, age, sexual orientation, citizenship, or status as a Vietnam-era veteran or special disabled veteran. Consistent with its status as a state and Federal contractor, the University undertakes affirmative action for underutilized minorities and women, for persons with disabilities, and for Vietnam-era and special disabled veterans.
  • University procedure requires that for each employee having responsibility for meeting established objectives in equal employment opportunity and affirmative action, the performance appraisal shall include an evaluation of the employee's good faith efforts in these areas.
  • Collective bargaining agreements between the University and exclusive representatives prohibit discrimination.

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Questions to Ask Yourself
  • When hiring, do you evaluate the job vacancy listing to ensure that the requirements listed are job-related? Do you target recruitment to underutilized minorities and women when there are affirmative action goals? Do you keep written records of all people interviewed and are you certain the information recorded relates to the individual's ability to perform the duties of the position?
  • Do you know the promotional potential of your employees, including women and minorities? Do they have a realistic assessment of their strengths and weaknesses through the performance appraisal process? Do they have opportunities for staff development? Are there practices that might restrict promotional opportunities for minorities or women? (Example: Do you give travel assignments only to men, when travel experience is a requirement for advancing to higher level positions?)
  • Have you analyzed the training needs of your staff? Have you given all staff similar opportunities for training and development?
How to Avoid Complaints

While there is no guaranteed way to avoid employee dissatisfaction with some part of a job, if you follow the above guidelines, the number of complaints can be greatly reduced. Try to look at your affirmative action efforts not as a zero-sum game in which one person's gain is another person's loss, but as an important human resource process that expands opportunities for everyone.

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Questions and Answers
Haven't Proposition 209 and the Regents' Resolution SP-2 eliminated affirmative action?

No. As a federal contractor, and under the terms of SP-2 and Proposition 209, the University must comply with federal laws and regulations regarding affirmative action. The University must continue to develop and implement affirmative action plans that identify areas of underutilization of minorities and women. Hiring authorities should demonstrate good faith efforts to eliminate underutilization through actions such as target recruitment to underutilized groups.

Is affirmative action reverse discrimination?

No. Affirmative action policies provide equal opportunity to those groups which have been systematically denied it. Affirmative action is not the source of discrimination, but the vehicle for removing the effects of discrimination. A recent Labor Department report found fewer than 100 reverse discrimination cases among more than 3,000 discrimination cases between 1990 and 1994. Discrimination was established in only 6 of the 100 cases or .02% of the total number of discrimination cases in this period. The report found "many of the [reverse discrimination] cases were the result of a disappointed applicant...erroneously assuming that when a woman or person of color got the job, it was because of sex or race, not qualifications." (S.F. Chronicle, 3/31/95)

Are employers expected to hire the less qualified over the more qualified to meet affirmative action goals?

Employers are not expected to establish any hiring practices that conflict with the principles of sound personnel management. No one should be hired unless there is a basis for believing the individual is the best-qualified candidate. In fact, affirmative action calls for the hiring of qualified people. "The goal of any affirmative action plan should be achievement of genuine equal employment opportunity for all qualified persons." (Code of Federal Regulations, Title 41, Part 60-3.17.4)

Is there really any difference between goals and quotas?

Yes. Quotas are rigid and exclusionary; they imply, "This is what you must achieve, no matter what." Goals are flexible and inclusive; they imply, "This is what we think you can achieve if you try your best." Goals are simply program objectives translated into numbers. They provide a target to strive for and a vehicle for measuring progress. The campus does not use quotas, but sets goals for those job groups where underutilization of minorities and women is identified.

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