Legal Affirmative Action

Promoting diversity in the workplace may be legally required.


Promoting diversity in the workplace serves business concerns that include recruiting and retaining the most qualified candidates and responding to the needs of customers in the global marketplace. In some circumstances, affirmative action to promote the hiring of minority and women candidates is required to receive federal government funds or to contract to provide goods or services to the federal government. For such contractors, affirmative action does not require the contractor to hire someone who is not qualified for the job nor does it require the establishment of quotas. It does require that the contractor’s managers consider its affirmative action obligations when making hiring, promotion, and termination decisions. Here are a few additional considerations:

Determine whether your company is a federal contractor. All contractors and subcontractors with 50 or more employees and government contracts or subcontracts of $50,000 or more must comply with Executive Order 11246 and develop a written affirmative action plan. For example, a motion picture studio that sells DVDs to the military in an amount over $50,000 must comply with the Executive Order. Similarly, a subcontracting garment company that makes clothes ultimately for the military in an amount of $50,000 or more also must comply. It is important, therefore, that an analysis be made of the company’s revenue stream to determine whether it is a “contractor” or “subcontractor” for purposes of Executive Order 11246.

Prepare an affirmative action plan. If the company is subject to the Executive Order, it must prepare a written affirmative action plan. The plan must include, among other things, an analysis of the contractor’s workforce by race/ethnicity and sex, a determination of whether the contractor is underutilizing minorities or women in any job groups, and the establishment of goals and timetables for correcting any underutilization. These obligations are enforced by the Office of Federal Contract Compliance Programs (OFCCP). If the OFCCP finds that a contractor has violated its affirmative action obligations, it can order that the contractor be barred from any future federal contracts until it is determined to be in compliance.


About the author

Emma Luevano

Emma Luevano is a regular contributor to on legal issues relevant to small and medium business. She is a partner at the law firm Mitchell Silberberg & Knupp LLP ( who advises and represents management on labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, class action wage and hour issues,and retaliation.