Legal Basis for Affirmative Action in Employment

LEGAL BASIS FOR AFFIRMATIVE ACTION IN EMPLOYMENT

Binghamton University and Research Foundation

Executive Order 11246 as amended prohibits employers doing business with the federal government (e.g., Binghamton University and the Research Foundation of SUNY) from discriminating in employment based on race, color, religion, sex, national origin, disability or Vietnam Era veterans' status.

The Office of Federal Contract Compliance Programs (OFCCP) is responsible for the enforcement of Executive Order 11246. OFCCP compliance reviews and/or pre-award audits may be triggered by discrimination complaints or by federal funding requests (grant proposals) of $1,000,000 or more.

Entities signing federal contracts or subcontracts totaling $50,000 or more must agree that they "will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, disability, or Vietnam Era veterans' status," and that they "will take affirmative action to ensure that applicants are employed and that employees are treated during employment" without regard to these factors. If there is a failure to comply with the affirmative action and nondiscrimination clauses of the contract, or with the rules and regulations of the U.S. Secretary of Labor, the contract may be cancelled, terminated or suspended in whole or in part and the employer may be declared ineligible for further government contracts. The suspension or termination of federal contracts would severely hamper the daily operation of the campus and its sponsored programs.

NONDISCRIMINATION AND AFFIRMATIVE ACTION IN THE EXECUTIVE ORDER 11246 EMBODIES TWO CONCEPTS:

Nondiscrimination requires the elimination of all existing discriminatory conditions, whether purposeful or inadvertent. The University and the Research Foundation of SUNY must carefully and systematically examine all employment policies and practices to ensure that such policies and practices do not either intentionally or unintentionally operate to exclude any persons on the grounds of race, color, religion, sex, national origin, disability, or Vietnam Era veterans' status. The University and the Research Foundation of SUNY must also ensure the practices of those responsible for the benefits and conditions of employment, including all supervisors, are nondiscriminatory.

Affirmative action requires the University and the Research Foundation of SUNY to do more than ensure employment neutrality with regard to the various classes covered under federal nondiscrimination laws. As the phrase implies, affirmative action requires the campus to make additional efforts to recruit, employ and promote qualified members of groups formerly excluded, even if that exclusion cannot be traced to particular discriminatory actions on the part of the employer. The premise of affirmative action is that unless positive action is undertaken to overcome the effects of systemic institutional forms of exclusion and discrimination, a benign neutrality in employment practices will tend to perpetuate the status quo ante indefinitely.

WHO IS COVERED UNDER EXECUTIVE ORDER 11246?

The nondiscrimination requirements of the Executive Order apply to all persons, regardless of race, color, gender, etc.

The affirmative action requirements of making additional efforts to recruit, employ and promote qualified members of historically excluded groups refers specifically to white women and to men and women from the following racial/ethnic categories, as specified by the Equal Employment Opportunity Commission: BLACK (not of Hispanic origin), HISPANIC, ASIAN or PACIFIC ISLANDER, and AMERICAN INDIAN or ALASKAN NATIVE.

Criteria for qualifying under the University and Research Foundation Affirmative Action programs differ significantly from criteria for qualifying under the Chancellor's Underrepresented Faculty Initiative, the Clark Fellowship Program, the Affirmative Action Graduate Assistantship Program, and the Educational Opportunity Program. Questions regarding these latter programs should be addressed to offices directly overseeing them.

FEDERAL DEFINITION OF RACIAL/ETHNIC CATEGORIES:

The concept of race as used by the Equal Employment Opportunity Commission does not denote clear-cut scientific definitions of anthropological origins. For affirmative action report purposes, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging. However, no person should be counted in more than one race/ethnic category.

THE FIVE RACIAL/ETHNIC CATEGORIES ARE DEFINED AS FOLLOWS:

• WHITE (not of Hispanic origin) -- A person having origins in any of the original peoples of Europe, North Africa or the Middle East.
• BLACK (not of Hispanic origin) -- A person having origins in any of the Black racial groups of Africa.
• HISPANIC -- A person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race.
• ASIAN or PACIFIC ISLANDER -- A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. The area includes, for example, China, Japan, Korea, the Philippine Islands and Samoa.
• AMERICAN INDIAN or ALASKAN NATIVE -- A person having origins in any of the original peoples of North America, and who maintain cultural identification through tribal affiliation or community recognition.

Please note that for affirmative action reporting purposes, individuals with permanent resident status are to be counted among the above groups, while individuals without U.S. Citizenship or permanent resident status are to be counted as non-citizens, regardless of their race/ethnicity.