ABA Family Legal Guide

Law and the Workplace

On the Job

Discrimination in the Workplace

What factors do the courts consider in deciding the validity of an AAP?

The law is still developing in this area, but the courts tend to focus on four factors.

First, the AAP should be designed to eliminate obvious racial or sex-based imbalances in the workforce.

Second, the plan cannot "unnecessarily trammel the interests" of nonminority (white or male) workers. It should not exclude nonminority employees from consideration for the job in question automatically. The minority employee favored by the AAP should be qualified for the job; employers should avoid favoring unqualified workers.

Third, the AAP should not adopt strict quotas. It should strive toward realistic goals, taking into account turnover, layoffs, lateral transfers, new job openings, and retirements. These goals should also take into account the number of qualified minorities in the area workforce. Moreover, goals should be temporary, designed to achieve, not maintain, racial balance.

Fourth, courts are more likely to validate AAPs that focus on recruiting, hiring, and promotion practices, rather than plans that give special treatment in the event of a layoff. The courts are more willing to protect incumbent employees' interests in their current jobs than any speculative expectations employees might have about a job that they don't currently hold.