EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII: Affirmative Action Plans; OFCCP; As Employer Defense
September 18, 2007
This is in response to your email request for an advisory letter concerning whether a federal contractor required to update affirmative action plans (AAPs) annually may backdate a plan not otherwise completed in a timely fashion. Your email further asks whether our answer would change if the newly updated/backdated plan included elements that the contractor had not implemented during the backdated period.
The federal agency with jurisdiction over affirmative action plans that federal contractors are required to develop and update is the Department of Labor’s Office of Federal Contract Compliance Programs. We suggest contacting that agency to determine whether a contractor may backdate an AAP in the circumstances you describe above.
The Commission does not require employers to develop or maintain affirmative action plans. Commission guidelines address only the question of what a plan must include if it is to be used as a defense to a claim of “reverse” discrimination. A plan can serve as a defense only to the extent it was “adopted in good faith, in conformity with, and in reliance upon” the guidelines. 29 C.F.R.§1608.1(e). To be valid under the guidelines, it must, among other things not relevant here, exist in written form as of the date of the alleged discriminatory action. Id. §1608.4(d). Thus, if a plan did not exist at all when the alleged discriminatory action occurred, it could not form the basis for such a defense. On the other hand, if a plan did exist and only a portion of it had been revised and backdated, whether the plan could provide a defense would depend on the particular facts. For example, if the alleged discrimination involved the revised portions of the plan, it seems unlikely that the plan could operate as a defense.
We hope this information has been helpful. While we are unable to provide you with an official opinion, this letter presents an informal discussion of the issues you have raised. If you have any questions, please do not hesitate to call either Carol R. Miaskoff, Assistant Legal Counsel, at 202-663-, or Peter S. Gray, Senior Attorney Advisor, at 202-663-.
Peggy R. Mastroianni
Assistant Legal Counsel
This page was last modified on November 26, 2007.
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