Current through Register Vol. 49, No. 18, September 16, 2024
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.
(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.
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.
*Original authority: 213.030, RSMo 1959, amended 1978,
1986, 1992, 1993, 1995, 1998.
