Affirmative Action

What affirmative action means in the workplace

Affirmative action is different from equal employment opportunity. EEO is a prohibition: don't discriminate. Affirmative action is an obligation to act: analyze your workforce, find where certain groups are underrepresented compared with the qualified labor pool, and take outreach and process steps to widen access.

It does not mean quotas or hiring someone less qualified because of race or sex. Federal contractor rules have always said placement goals are targets for outreach effort, not quotas, and that selection must still be based on merit. Hiring preferences based on race or sex are a separate and much riskier matter under Title VII, discussed below.

The federal framework and what changed in 2025

For nearly 60 years, three authorities required federal contractors to maintain affirmative action programs, all enforced by the OFCCP:

• Executive Order 11246 (1965): race, color, religion, sex and national origin. Contractors with 50 or more employees and a contract of $50,000 or more had to keep written AAPs with workforce analyses, availability comparisons and placement goals.
• Section 503 of the Rehabilitation Act (1973): individuals with disabilities, which until 2026 included a 7% utilization goal for each job group.
• VEVRAA (1974): protected veterans, with an annual hiring benchmark.

In January 2025, Executive Order 14173 revoked Executive Order 11246 and directed contractors to stop maintaining race- and sex-based affirmative action programs under it. Section 503 and VEVRAA are statutes passed by Congress, so they were not revoked. Federal contractors that meet those laws' thresholds still need written affirmative action programs for individuals with disabilities and protected veterans. Final Department of Labor rules published in August 2026 removed the Section 503 disability self-identification invitations, the 7% utilization goal and the disability utilization analysis, while VEVRAA veteran self-identification, job listing, the hiring benchmark and recordkeeping remain. Check current regulations before your next plan year.

What an affirmative action plan contains

A Section 503 or VEVRAA plan typically includes:

• A policy statement and the name of the person responsible for the program
• A review of personnel processes and physical and mental job qualifications
• Outreach and recruitment efforts, with an annual assessment of whether they worked
• Data collection: applicants and hires who self-identify as protected veterans, kept in an applicant flow log
• Comparison of veteran hiring with the annual VEVRAA hiring benchmark (the Section 503 disability utilization analysis was removed in 2026)
• Training, internal audit and reporting systems

The plan is updated annually. It is mostly a data and process exercise, which is why recruiting operations, not just legal, needs to own the applicant data behind it.

Voluntary affirmative action and Title VII

Private employers without contractor obligations sometimes run voluntary programs. Under Title VII, the Supreme Court allowed narrow voluntary plans in United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987), where there was a manifest imbalance in traditionally segregated jobs, the plan didn't unnecessarily harm other employees and it was temporary.

The risk around any race- or sex-conscious selection has grown. Since the Supreme Court's 2023 decision in the Harvard and UNC admissions cases, which addressed college admissions rather than employment, challenges to workplace diversity programs have increased, and federal agencies in 2025 signaled closer scrutiny of programs that consider protected traits in employment decisions. The safe distinction holds: broadening outreach is lawful; using race or sex to choose between candidates generally is not.

Lawful outreach in practice

Practices that widen the pool without making protected traits a selection factor:

• Posting with state workforce agencies, veterans' organizations, disability employment networks, community colleges and workforce boards
• Recruiting at a range of schools and community events, not just the usual ones
• Removing requirements that aren't needed for the job, such as degrees for hourly roles
• Using structured interviews and validated assessments for everyone
• Monitoring selection rates by group at each step, as part of diversity recruiting analytics

This is general information about US federal law. Rules for contractors and DEI programs have been changing quickly, and states such as California and Illinois have their own requirements, so confirm with counsel.