Equal Opportunity versus Affirmative Action

Equal opportunity is the idea that all people, regardless of their diversity characteristic, should be given an equal opportunity to succeed. The Americans with Disabilities Act (ADA) is an equal opportunity law. Title I explicitly prohibits employers from “discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.”

Many other laws support non-discrimination, including Title VII of the Civil Rights Act, the Genetic Information Non-Discrimination Act, and the Pregnancy Discrimination Act. The binding characteristic of these non-discrimination laws is preventing discrimination based on one or more protected characteristics of a person.

Affirmative action is different. It requires non-discrimination, and it requires employers to pro-actively plan to engage members of protected classes in their workforce. The Rehabilitation Act provides us with a good example of affirmative action laws that impact applicants and employees with disabilities. Recent regulations that have been released regarding the Rehabilitation Act align the non-discrimination requirements of the ADA with the Rehabilitation Act’s Section 501 (which applies to federal employers) and Section 503 (which applies to federal contractors). However, the Rehabilitation Act now goes further and requires affirmative action planning by the impacted employers. Both sections set targets for including people with disabilities in the workforce. They ask that covered employers affirmatively recruit, hire, place, and advance people with disabilities. An affirmative action plan is used to describe how each covered entity will achieve its goals.