The Legal Environment of Human Resources Management 69
with processing complaints as well as compliance review. It reviews
complaints and can visit an employer ’ s work site and review the affi rmative
action plans for compliance with the law. Minority availability is mea-
sured by the portion of qualifi ed applicants (actual or potential) who are
minorities. OFCCP defi nes “ underutilization ” as fewer minorities or
women in a particular job group than would reasonably be expected by
their availability. When a job group is identifi ed as underused, the con-
tractor must set goals to correct the underutilization. The goals for each
underutilized group, together with the utilization analysis, become part
of the written affi rmative action plan. A federal contractor must monitor
information about the status of employees when creating and using an
affi rmative action plan. The employer must demonstrate that its employ-
ment practices comply with Executive Order 11246 and the OFCCP ’ s
guidelines by documenting employment decisions on hiring, termination,
promotion, demotion, and transfer.
If noncompliance is found, the OFCCP generally fi rst tries to reach
a conciliation agreement with the employer. Special hiring or recruitment
programs, seniority credit, or back pay may be some of the provisions
included in the agreement. If an agreement cannot be reached, the employer
is scheduled for a hearing with a judge. If an agreement is still not reached
during this time, employers may lose their government contracts or have
their payments withheld. They may also lose the right to bid on future gov-
ernment contracts or be debarred from all subsequent contract work.
While equal employment opportunity is a legal duty, affirmative
action can be voluntary or involuntary. Although Executive Order 11246
applies only to organizations receiving federal funds, many public and
nonprofi t organizations have decided to implement voluntary affi rmative
action programs to redress previous discriminatory employment practices
or make their workforce more representative. Involuntary affirmative
action is permitted under the Civil Rights Act of 1964, Section 706(g),
which states that if a court finds that an employer has intentionally
engaged in an unlawful employment practice, it may order appropriate
affi rmative action. Affi rmative action is not required unless the employer
has adopted the plan as a remedy for past discrimination or must comply
with an executive order required by a federal or state agency requiring
affi rmative action as a condition of doing business with the government.
Employers who are not the recipients of government contracts may be
forced to develop affi rmative action plans if an investigation by a state or
federal compliance agency fi nds that an employer ’ s personnel practices
discriminate against protected - class members.