Affirmative Action and Legal Issues in Human Resources

Affirmative Action

Affirmative action is a concept that dates back to John F. Kennedy when it started as an Executive Order. President John F. Kennedy issued Executive Order 10925, which included a provision requiring government contractors to take affirmative action to ensure the equal treatment of all job applicants regardless of sex, religion, race, national origin, or color (Office of Equal Opportunity and Diversity, 2023). The order was issued to demonstrate the government’s commitment to ensuring equal opportunity for all qualified applicants. Moreover, it sought to demonstrate the government’s positive action in fostering efforts toward the achievement of true equal opportunity for all. Executive Order 10925 later became Executive Order 11246, which ensures that companies working with the government have a mechanism for taking action against hiring discrimination. Therefore, prohibiting hiring discrimination and promoting equal opportunity for all has been the basis for affirmative action. Affirmative action seeks to ensure that qualified underrepresented entities like minorities have equal opportunity to be hired (Oyinlade, 2014).

Given its objective, affirmative action refers to specific actions in job recruitment, hiring, and promotions that seek to eliminate discrimination and its effects. It is essentially a set of specific actions that an employer carries in good faith to ensure that all applicants and employees have equal employment opportunities (Green, 2004). These actions and good-faith efforts include training programs, procedures, and outreach initiatives. These procedures and actions should be included in the written personnel policies of the company. The written affirmative action plans must be implemented and reviewed annually to ensure equal employment opportunity for all.

Throughout the years, affirmative action has evolved and diverged into three distinct paths. First, affirmative action arises in the context of government contractors. In this context, affirmative action is undertaken as a requirement for receiving a contract from the federal government. This context is the premise with which President John F. Kennedy established affirmative action under Executive Order 10925. The second context is court-imposed relief, which occurs when a court orders affirmative action as a solution to address past discrimination by an employer. The third context of affirmative action is voluntary, which is undertaken by an employer (Appel et al., 2005).

According to the Department of Administration (2021), affirmative action is critical in current human resource practices for various reasons. First, affirmative action helps to increase the utilization of minorities, people with disabilities, and women in job categories and equal employment opportunity job classifications. Secondly, it helps to address and change employment practices that hinder equal employment opportunity through analysis of specific practices and implementation of corrective measures. Third, affirmative action helps to strengthen accountability and assessment by allocating major responsibilities to the management. Finally, affirmative action enhances support for equal employment opportunity and workforce diversity. Such support is evident as affirmative action provides training on issues and topics relating to fair employment practices.

Affirmative Action Plan

An affirmative action plan refers to a written document or program specifying steps or processes a company has carried out and will carry out to ensure equal employment opportunity (Department of Administration, 2021). The written document or program details steps for ensuring that qualified people are not discriminated against in employment decisions on the basis of their race, religion, color, national origin, or sex. The creation of an affirmative action plan involves a review of employment data from previous years. Such data is used as an outlook of what the employer will do over the next year with regard to equal employment opportunity for all. When analyzing employment data, a company utilizes the required regulatory statistics. Using a summary of the results, the company formulates an affirmative action plan in compliance with federal requirements. If an employer is covered by federal affirmative action obligations, he/she may be required to establish certain policies.

The process of establishing an affirmative action plan incorporates three major elements. The first element in this process is reasonable self-analysis, which involves determining whether existing or probable employment practices are discriminatory toward certain groups or do not address previous employment discrimination. Reasonable self-analysis determines whether employment practices restrict, exclude, or promote discriminatory treatment of certain groups. When conducting the self-analysis, the employer also seeks to determine why employment practices could be discriminatory or have an adverse impact on certain groups (Legal Information Institute, 2021). Reasonable self-analysis helps to create a problems/barriers identification statement, which stipulates conditions or situations that should be changed or corrected. In addition, the statement specifies personnel/management policies or actions that could be contributing to the situation or conditions (Department of Administration, 2021). This statement is the premise for creating an action statement that details steps to be taken to remedy the problems and barriers.

The second element in the creation of an affirmative action plan is reasonable basis, which is determined based on the results of the self-analysis. Reasonable basis for an affirmative action plan is established if one or more employment practices are deemed to have an adverse effect on employment opportunities for certain groups. Moreover, such a basis is established if employment practices do not correct the effects of past discrimination or they contribute to disparate treatment of certain groups. However, reasonable basis can exist without a previous violation of relevant employment laws such as Title VII.

Once reasonable basis is established, the third critical element is reasonable action. Reasonable action may include goals and timetables as well as other suitable employment tools to promote equal employment opportunity. Goals are narrowly customized objectives for hiring and promoting groups protected in equal employment opportunity categories. These objectives seek to remedy the lasting effects of previous discrimination. As part of the plan, goals can be used as adaptable targets to guide affirmative action steps. However, they should not be used to discriminate or prohibit people from employment opportunities through reverse discrimination (Department of Administration, 2021). Timetables help to ensure that the specified actions are implemented in a timely manner. In essence, affirmative action goals must be specific, measurable, and timely in order to be effective in promoting equal employment opportunity.

When creating an affirmative action plan, a company should develop and publish a policy on equal employment opportunity. Such a policy should specify that the employer does not discriminate against protected groups and stipulate actions intended to enhance the representation of these groups while protecting the majority. Some potential actions to improve the representation of protected groups include providing training programs to the company’s internal stakeholders, especially those in key decision-making positions. An important part of the implementation of an affirmative action plan is assigning responsibility to people within the company. These individuals should be mandated with the responsibility of implementing the plan and conducting regular reviews to help address any challenges. This would help ensure that the affirmative action plan is up to date and complies with relevant laws.

Company Website Design

Being an employer of choice is an important success factor in today’s highly competitive business environment, particularly in the retail trade sector. A company that is deemed an employer of choice is highly sought after by job seekers because of its stellar reputation (Grones, 2020). Companies build their reputation as employers of choice by providing rewarding working environments characterized by good employee experience. As a grocery chain, building a reputation as an employer of choice is critical in a highly competitive market. Workers in the retail trade sector have a wide range of choices of occupation, industry, work arrangements, and employer locale. As a result, attracting and retaining top talent in this sector is increasingly difficult. In this situation, attracting and retaining such talent is more difficult because our website does not represent the company’s desire to be an employer of choice. Unlike the three grocery stores listed in Fortune Magazine’s “100 Best Companies to Work For” in 2016, our grocery chain is not renowned as an employer of choice. Nugget Markets, Wegmans Food Market, and Whole Foods Market have a stellar reputation because of various factors including the recruitment section on their websites. As evident in their websites, each of these companies has included being an employer of choice as one of their key goals.

Nugget Markets

For its website, Nugget Markets has adopted a presentation-type website design. Such a design is one of the most commonly used types of food websites by grocery stores. Using this design, Nugget Markets gives more emphasis on food presentation. Moreover, the company has included mouth-watering photographs of its menu items and includes an option for users to place orders. On its main page, Nugget Markets is advertised as one of the top 100 best companies to work for. The page also includes an apply button, which is strategically placed below its mouth-watering photographs of food items. Upon clicking on the apply button, the user is redirected to a page that includes an article picture of its listing on Forbes. This page also includes a list of locations that are currently hiring, which makes it easier for the user to identify an ideal employment locale. The use of a presentation-style website design and colorful pictures appeals to multiple age groups. Nugget Markets’ career page provides insights into its work culture as a family-oriented workplace that supports a healthy work/life balance and lists benefits to employees such as payment for unused sick days (Chopra & Chopra, 2018). However, Nugget Markets’ website could be improved by including details on career prospects and growth opportunities for potential employees.

Wegmans Food Market

Wegmans Food Market adopts a similar type of website design as its home page is dominated by food presentations and colorful pictures. However, the website has different tabs for different categories of food items on its menu. Unlike Nugget Markets’ website, Wegmans Food Market’s website has most of its page links down at the bottom. However, the link to the careers page is at the top. Upon clicking on the careers button, one is redirected to a careers page that starts off with a search bar, desired employment locale in terms of proximity, and location. In addition, featured career areas are listed below the search bar. Career areas are listed based on different categories, job positions, locations, and availability. Similar to Nugget Markets, this page also includes an article picture of the company’s listing on Forbes and an advertisement as an employer of choice. Users can create their accounts on this page and track saved jobs or receive alerts for new job opportunities. It’s also easy for the user to see recently viewed jobs, featured jobs, and saved jobs. While this website makes it easier for the user to search for jobs, he/she is required to enter a keyword. This could be a challenge to a user with no idea of what to look for. Therefore, instead of requiring a keyword, the search bar could include a drop-down menu of different job categories to make it easier for the user to search for available jobs.

Whole Foods Market

Unlike Nugget and Wegmans, Whole Foods Market does not have a colorful, presentation-type website. Whole Foods Market utilizes a store shopping website design layout in which users can find a store, recipes, or order online. Whole Foods’ main page only includes one colorful picture of food at the top. This is followed by a list of upcoming events in some of its stores. The company’s specialty food items are listed down at the bottom of its main page. While Whole Foods Market careers page has a search bar, it only requires the user to search for job title and location, unlike Wegmans. The page also includes a culture and benefits button at the top. An outlook of its stores, offices, and facilities and distribution centers is provided below the search bar. Each of these segments redirects the user to another page where they can learn more about Whole Foods’ working environment. Whole Foods’ career page also includes a video and testimonials from some of its employees regarding the work environment and culture. This enables potential employees to get a feel of what it feels like to work at Whole Foods Market. Unlike Nuggets and Wegmans, Whole Foods’ career page does not include an article picture of its listing on Forbes. A unique feature in Whole Foods’ career page is a segment on its hiring process and a careers blog. However, the company’s website does not include details on career growth opportunities and prospects.

Application

The review of the three grocery stores listed in Fortune Magazine’s “100 Best Companies to Work For” in 2016 provides significant insights into website design layouts and best practices for being an employer of choice. The three companies have some similar and unique elements in their website design layouts that make it attractive for users and help to strengthen their stellar reputation and employers of choice. Based on insights obtained from the review, the grocery chain can adopt some elements to improve its hiring and position itself as an employer of choice within a short period of time.

First, the grocery chain should adopt a presentation-style website design layout that is characterized by mouth-watering food pictures. Such a design would be attractive to multiple age groups and enhance users’ experience when visiting the website. Presentation-style website design for the grocery chain should include the option to place orders online, add to cart, or buy now. Moreover, the design should give more emphasis to food presentation and food preparation process using quality images.

Secondly, the home page should include a career button that redirects the user to a link to learn more about available jobs, their location, and how to apply. Available jobs should be listed based on category and job title/position. For potential employees to easily identify available jobs, a search bar with a drop-down menu should be included. Using the example of the three grocery stores, the careers page should include details about the company’s work culture and employee benefits. Testimonials from current employees should also be included on the page for potential employees to have a feel of what it means to work at the grocery chain.

Third, the careers page should include details regarding career prospects and growth opportunities. This would help potential employees to identify prospective growth opportunities offered by the company for their professional growth and development. By providing insights into career prospects and growth opportunities, the grocery chain will demonstrate its commitment to taking care of its employees. This will in turn make it easy for the firm to attract and retain top talent.

Disparate Treatment Claim

Mr. Ron Whyme, aged 53, is a former Regional Claims Manager (RCM) of We Deny Everything Insurance Company (WDE). Until recently, Ron was responsible for supervisors and claim specialists in his regional office. However, alongside the other three RCM positions, Ron’s position was recently eliminated due to WDE’s restructuring and reorganization. These positions were replaced with five new Corporate Claims Specialist (CCS) positions. The new CCS positions were established on grounds that they allegedly required higher technical skills and knowledge. Together with the other three RCMs, Mr. Ron was included in the list of potential candidates for the new CCS positions. However, none of them were promoted and effectively terminated. The new CCS positions were given to claims specialists and supervisors that worked under the former RCMs including two of whom who actually reported to Mr. Ron. One of the notable points in this process is that all former RCMs and other bypassed candidates were above age 40 while all the newly appointed CCSs were below 40 years. Mr. Ron was bypassed despite being qualified in all respects of the new CCS positions and had an above-average performance throughout his tenure as an RCM. This implies that there is a possibility of age discrimination against Mr. Ron.

The Age Discrimination in Employment Act (ADEA) prohibits employers from age discrimination against their workers (Cullen, 2003). Based on the provisions of this law, it is illegal for employers to classify or isolate workers in a manner that deprives those workers of employment opportunities. In addition, ADEA prohibits employers from discharging employees on the basis of age. Existing evidence presented in Mr. Ron’s case points to a potential violation of the provisions of ADEA. Case facts point to a disparate treatment against Mr. Ron by WDE’s Senior Vice President of Corporate Claims and the two Managers of Corporate Claims. The evidence meets the elements for a prima facie case of disparate treatment discrimination.

First, one of the elements for a prima facie case of disparate treatment discrimination is adverse employment action suffered by the plaintiff (Zimmer, 2008). Mr. Ron suffered an adverse employment action i.e. termination despite being qualified for the new CCS position. Mr. Ron’s qualifications were not considered by the SVP and MCCs since they did not review his personnel files and appraisals. The failure to review these qualifications resulted in an adverse employment action against Mr. Ron. Secondly, disparate treatment discrimination is also proven when the actions of a defendant are motivated by a protected attribute of the plaintiff. In this case, age was seemingly the only factor that influenced the promotion decisions made by the SVP and MCCs. Alongside other former RCMs, Mr. Ron was effectively fired to create space for younger employees. Age was the only factor taken into consideration by the SVPCC and MCCs when making decisions on CCS appointments.

These two elements point to disparate treatment discrimination against Mr. Ron on the basis of his age. The SVP and two MCCs conducted the entire workforce restructuring process without consulting the HR department or involving the Vice President of Regional Claim (VPRC)s. Through this, they overlooked valuable inputs that would have enhanced their decision-making on CCS appointments. Moreover, the process was carried out in a highly informal and irregular manner that violated company policy since no written job postings or descriptions were made for the new CCS positions. This could imply that the SVPCC and two MCCs carried out the process to replace the older employees with younger ones. Secondly, the claims that Mr. Ron lacked the necessary technical and communication skills were not based on any evidence. His personnel files and performance appraisals show otherwise. In addition, the VPRC reported that Mr. Ron was highly qualified for the new CCS position.

Disparate Treatment Claim – Rebuttal

Having received Mr. Ron’s claims of disparate treatment, we do not agree with the complaints. Mr. Ron’s claims of age discrimination are not well-founded and his statement is based on some errors. Age was not a factor in the hiring and promotion process since the qualifications of all interested and potential candidates were considered. We disagree with Mr. Ron’s claims of age discrimination due to the following reasons.

First, the argument the restructuring process was simply carried out to replace older employees with younger ones is erroneous. The restructuring and reorganization process was carried out to help ensure WDE remains competitive in an ever-changing insurance market. Since the restructuring was already agreed upon by the firm’s management, the involvement of the VPRC was not necessary in the hiring and promotion process. The failure to involve the VPRC in this process does not imply that age discrimination was the reason for the restructuring of the company. In addition, the VPRC was not consulted in the hiring and promotion process to avoid bias. Since the VPRC was Ron’s boss, his involvement in the decision-making process would have increased the possibility of bias.