Is A Difference in Pay an Affirmative Action Issue?
Adoption of an affirmative action plan by a public entity is generally made on a voluntary basis. The answer will be a matter of determination for the court based on the entity's policy and all the circumstances involved. Affirmative action has been used to provide a special boost to qualified minorities, women, and disabled individuals in order to make up either for past discrimination or for their under representation in a specific area of the work force or academia. Though these categories of individuals have historically benefited most, affirmative action programs can also apply to other areas of discrimination, such as age, nationality, and religion.
Affirmative action can be administered in several ways. One way is through "quotas," defined as a strict requirement for a proportion or share of jobs, funding, or other placement to go to a specific group, e.g., 50 percent of all new hires must be women. Another is "goals," which require agencies and institutions to exert a good-faith effort toward reaching the assigned proportion or share goal but do not require that the proportion be reached. Affirmative action can also take the form of intangible "boosts" for the respective beneficiaries of the program; for example, all men shorter than 5283 will be given ten extra points on the physical fitness exam.
Discrimination on the basis of race, color, national origin, religion, sex, age, disability, or status as a Vietnam-era veteran is prohibited by titles VI and VII of the Civil Rights Act of 1964, title IX of the Educational Amendments of 1972, sections 503 and 504 of the Rehabilitation Act of 1973, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, the Pregnancy Act of 1975, the Age Discrimination Act of 1975, the Age Discrimination in Employment Act Amendments of 1978, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, and other federal and state statutes and regulations. This policy applies to all programs, services, and facilities, and includes, but is not limited to, applications, admissions, access to programs and services, and employment.
Affirmative action polices are intended not merely to refrain from employment discrimination as required by the various federal and state enactments but to take positive affirmative action to realize full equal employment opportunity for women, ethnic groups, persons with disabilities, and Vietnam-era veterans and to increase substantially the numbers of women and ethnic-group members in positions where traditionally they have not been employed. Such a policy requires the employer to base employment decisions on the principles of equal opportunity.
Non-discriminatory policies of an employer should ensure that promotion decisions are in accord with principles of equal opportunity by imposing only valid requirements for promotional opportunities. They should also ensure that all personnel matters, such as compensation, benefits, transfers, layoffs, returns from layoff, leave, employer-sponsored training, education, tuition assistance, and social and recreational programs, are administered without regard to race, color, national origin, religion, sex, age, disability, or status as a Vietnam-era veteran.
The elements of proof will vary depending on the exact factual circumstances. Generally, there are two types of proof of discrimination. The first is direct evidence of the employer’s discriminatory intent. This type of evidence is very rare, but usually takes the form of oral statements that the prospective employee is "too old" or "there is too much gray hair in this company." Once the prospective employee has shown direct evidence of discrimination, the burden of proof shifts to the employer to prove that it would have taken the adverse action even without the discriminatory intent. In most cases, however, the prospective employee does not have direct evidence and must rely on indirect, or circumstantial, evidence. This typically involves proof that a pattern of discrimination exists through the use of statistical analysis, or providing circumstantial evidence that discrimination occurred.