Staff Recommendation
States Continue to Enforce Their Affirmative Action Requirements
Introduction
- President Trump revoked Executive Order 11246, which required federal contractors to develop Affirmative Action Programs. In this context “affirmative action” means that federal contractors had to analyze annual workforce data to ensure they were providing equal opportunity for women and racial minorities.
- To comply with federal law, federal contractors must still maintain an Affirmative Action Plan (AAP) for veterans and individuals with disabilities.
- Federal contractors still have to comply with federal requirements such as EEO-1 and Vets-4212 filings.
Relationship Between State and Federal Affirmative Action Requirements
- Affirmative action obligations for employers are based on the fact there is a contract with the relevant unit of a state or the federal government.
- While there may be a relationship between state and federal affirmative action requirements, federal requirements do not control state mandates. States have the right to create and implement their own standards and responsibilities. Actions like the revocation of Executive Order 11246 do not absolve employers of affirmative action obligations they have when they are state contractors.
States That Continue to Require Affirmative Action For Women and Racial Minorities
States that continue to have AAP requirements:
- California,
- Connecticut,
- District of Columbia,
- Hawaii,
- Illinois,
- Kentucky,
- Maine,
- Maryland,
- Minnesota,
- New Jersey,
- New Mexico,
- New York.
- Ohio,
- Oregon,
- Pennsylvania, and
- Wisconsin.
NOTE: With the revocation of Executive Order 11246, SESCO expects more states to pass their own AAP laws.
In addition to having AAP requirements as noted above, consider the following for state contractors:
- Kentucky and Minnesota require an annual submission from employers in order to maintain their status as a certified contractor with the state.
- New Jersey requires three years of personnel activity data on hires, promotions, transfers, and terminations when an employer’s certification must be renewed.
- Kentucky and Ohio require the use of an online portal to provide information about a state contractor.
- New Jersey and Wisconsin require the submission of a report that is similar to an EEO-1 report.
It is typical for states to have unique requirements for their contractors, and it is not unusual for state affirmative action requirements to change without formal notice to the public. States do not necessarily have the same kind of notice requirements as the federal government when making regulatory changes.
The source of state affirmative action requirements also varies from state to state. Affirmative action requirements for any given state may be found in state statutes, state administrative code, policies or procedures found on a state website, or through other sources. Learning what is currently required for any particular state can be a complicated, and ever-evolving process.
New State Affirmative Action Requirements Expected
While multiple states have had affirmative action requirements in place for some time, it seems likely that there will be new state affirmative action requirements enacted in the next few years. The federal government is likely to significantly limit, or even abandon, enforcement of all affirmative action laws. This will give the states that currently have affirmative action laws an incentive to strengthen their requirements. It will also give states without affirmative action requirements a reason to implement these requirements.
SESCO will continue to monitor state developments and provide updates as they occur.