Business Leaders and Affirmative Action: While almost everyone I speak to about the issue is not only surprised, but very surprised, to hear that Donald Trump is a strong supporter of Affirmative Action and gay rights, I was not surprised. However, I was not sure until I undertook a more careful investigation. Nonetheless, my investigation bore out my gut hunch that he was a supporter of Affirmative Acton, and may well even favor outright preferences (as many senior business leaders do: I routinely hear CEOs tell me that they view HR staffing as just another business challenge. “John,” they say, “we have to produce X many widgets per day, so why can’t we have X% Black employees, and Y% Hispanics, and 43% of our customers are women so why can’t we have, let’s say 50% of the actors in our commercials be women, and if I can’t hire Mexican nationals to run our Mexico operations and hire Japanese nationals to run our holdings in Japan, how are we ever going to compete in those markets?”). My experience has been now for over 30 years that business leaders, especially those in consumer businesses, strongly support Affirmative Action. In 1986, in fact, the National Association of Manufactures (NAM) -one of the country’s two leading trade associations for business interests -reached out to me to file an Amicus Curiae brief in the SCOTUS when a case came along out of New York City which had confused “hard-on-the dock” employment “quotas” with employment “goals.” (An Amicus Curiae brief, or a “Friend of the Court” brief translated literally from Latin, is one filed by a NON-party to the case before a court. The Friend of the Court must request permission to be heard and seeks to advance the friend’s interests by allowing the court to hear its point of view as the court deliberates concerning a major issue which could have ramifications beyond the parties before the court and could affect the rights or interests of uninvolved third parties). The NAM wanted me to help the SCOTUS sort out the difference between OFCCP “goals” and court-ordered remedial quotas based on race. Thankfully, Justice Sandra Day O’Connor read the brief and realized the significance for federal contractors if the SCOTUS were to strike down as unlawful what the lower courts and the parties had called “goals” even though the so-called “goals” were in fact hiring “quotas” for Black sheet metal workers (an all-white union had kept out of the union). The NAM was much relieved that Justice O’Connor differentiated “goals” from unlawful “quotas” and probably saved the OFCCP “goals” program from extinction in the late1980s.
I recall, too, as though it were yesterday… Read more.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.