Affirmative Action

PURPOSE: The Missouri Commission on Human Rights enacts this rule to provide employers subject to the jurisdiction of the commission under Chapter 213, RSMo 1986 some guidance in developing voluntary affirmative action plans. This rule will provide the standards that the commission will use to judge whether the plans are unlawfully discriminatory. Editor’s Note: The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the material referenced has been filed with the secretary of state. This material may be found at the Office of the Secretary of State or at the headquarters of the agency and is available to any interested person at a cost established by state law. (1) This rule is not intended to provide standards for determining whether voluntary action has fully remedied past or existing discrimination. Therefore, the rule does not apply to a determination of the adequacy of an affirmative action plan to eliminate discrimination against previously excluded groups. Employers, labor organizations or other persons who take affirmative action may still be liable if the plan or program does not adequately remedy illegal discrimination. This rule applies to charges that the affirmative action plan itself is discriminatory. (2) Voluntary affirmative action is appropriate under the following circumstances: (A) Employers, labor organizations and other persons may take affirmative action based on an analysis which reveals employment practices causing potential adverse impact on the employment opportunities of those classes protected by Chapter 213, RSMo and (B) Because of historic restrictions by employers, labor organizations and others, the available pool of persons in a protected class who are qualified for employment or promotional opportunities is artificially limited. Employers, labor organizations and other persons are encouraged to take affirmative action in such circumstances, including, but not limited to, the following: 1. Training plans and programs, including on-the-job training, which emphasize providing members of the protected categories with the opportunity, skill and experience necessary to perform the functions of skilled trades, crafts or professions; 2. Extensive and focused recruiting activity; and 3. Modification through collective bargaining where a labor organization represents employees, or unilaterally where one does not, of promotion and layoff procedures. (3) An affirmative action plan or program under this section shall contain three (3) elements—a reasonable self analysis, a reasonable basis for concluding action is appropriate and reasonable action. (A) The objective of a self-analysis is to determine whether employment practices do or tend to, exclude, disadvantage, restrict or result in adverse impact or disparate treatment of previously excluded or restricted groups or leave uncorrected the effects of prior discrimination, and if so, to attempt to determine why. There is no mandatory method of conducting a self-analysis. The employer may utilize techniques used in order to comply with Executive Order No. 11246 and its implementing regulations, including 41 CFR Part 60-2 (known as Revised Order 4), or related orders issued by the Office of Federal Contract Compliance Programs or its authorized agencies, or may use an analysis similar to that required under other federal, state or local laws or regulations prohibiting employment discrimination. In conducting a self-analysis, the employer labor organization, or other person should be concerned with the effect on its employment practices of circumstances which may be the result of discrimination by other persons or institutions. (B) If the self-analysis shows that one (1) or more employment practices—1) have or tend to have an adverse effect on employment opportunities of members of previously excluded protected groups, or groups whose employment or promotional opportunities have been artificially limited; 2) leave uncorrected the effects of prior discriminations; or 3) result in disparate treatment, the person making the self-analysis has a reasonable basis for concluding that action is appropriate. It is not necessary that the self-analysis establish a violation of Chapter 213, RSMo. This reasonable basis exists without any admission or formal finding that the person has violated Chapter 213, RSMo and without regard to whether there exist arguable defenses to a Chapter 213, RSMo violation. (C) The action taken pursuant to an affirmative action plan or program must be reasonable in relation to the problems disclosed by the self-analysis. Reasonable action may include goals and timetables or other appropriate employment tools which recognize the race, creed, color, religion, sex, national origin, ancestry or handicap of applicants or employees. It may include the adoption of practices which will eliminate the actual or potential adverse impact, disparate treatment or effect of past discrimination by providing opportunities for members of groups which have been excluded, regardless of whether the persons benefited were themselves the victims of prior policies or procedures which produced the adverse impact or disparate treatment or which perpetuated past discrimination. (D) Affirmative action plans or programs may include, but are not limited to, those described in the Equal Employment Opportunity Coordinating Council “Policy Statement on Affirmative Action Programs for the State and Local Government Agencies,” 41 FedReg 38,814 (September 13, 1976), reaffirmed and extended to all persons subject to federal equal employment opportunity laws and orders, in the Uniform Guidelines on Employee Selection Procedures (1978) 43 FedReg 38,290; 38,300 (August 26, 1978). (4) In considering the reasonableness of a particular affirmative action plan or program, the commission will apply the following standards: (A) The plan should be tailored to solve the problems which were identified in the self-analysis and to ensure that employment systems operate fairly in the future while avoiding unnecessary restrictions on opportunities for the workforce as a whole. The race, creed, color, religion, sex, ancestry, national origin or handicap conscious provision of the plan or program should be maintained only so long as necessary to achieve these objectives; and (B) Goals and timetables should be reasonably related to such considerations as the effects of past discrimination, the need for prompt elimination of adverse impact or disparate treatment, the availability of basically qualified or qualifiable applicants and the number of employment opportunities expected to be available. (5) Where an affirmative action plan or program is alleged to violate, or is asserted as a defense to a charge of discrimination, the commission will investigate the charge in accordance with its usual procedures and pursuant to the standards set forth in these rules, whether or not the analysis and plan are in writing. However, the absence of a written self-analysis and a written affirmative action plan or program may make it more difficult to provide credible evidence that the analysis was conducted and that action was taken pursuant to a plan or program based on the analysis. Therefore, the commission recommends that these analyses and plans be in writing. (6) Parties are entitled to rely on orders of courts of competent jurisdiction. If adherence to an order of a United States District Court or other court of competent jurisdiction, whether entered by consent or after contested litigation, in a case brought to enforce a federal, state or local equal employment opportunity law or regulation, is the basis of a complaint or is alleged to be the justification for an action which is challenged, the commission will investigate to determine whether such an order exists and whether adherence to the affirmative action plan which is part of the order was the basis of the complaint or justification. If the commission so finds, it will issue a determination of no probable cause. The commission interprets Chapter 213, RSMo to mean that good faith actions taken pursuant to the direction of a court order cannot give rise to liability under Chapter 213, RSMo. (7) Compliance with an affirmative action plan developed pursuant to these rules is a defense to a complaint of discrimination based upon the implementation of that plan. AUTHORITY: section 213.030(6), RSMo 1986.* This rule was previously filed as 4 CSR 180-3.080. Original rule filed Sept. 19, 1980, effective Feb. 12, 1981. *Original authority: 213.030, RSMo 1959, amended 1978, 1986, 1992, 1993, 1995, 1998.