Affirmative Action Policy for Ethnic Minorities and Women

Preamble

Because the effects of ethnic and gender discrimination by particular employers and by society in general cannot be remedied simply by ending discriminatory practices and utilizing employment practices that treat people equally regardless of ethnicity or gender, affirmative action may be necessary to achieve true equal employment opportunity.^∗

Definitions

For purposes of this Policy Statement, the following definitions apply:

1. The term “affirmative action” means any measure, beyond simply terminating and prohibiting discriminatory practices, that may be used to increase or maintain the percentage of ethnic minorities or women in an educational employer’s workforce, or a particular segment of an educational employer’s workforce.
2. The term “discrimination” means denying an employment opportunity or benefit, or taking any adverse employment action, against ethnic minorities or women solely on the basis of their ethnicity or gender.
3. The term “diversity” means the inclusion of a specified percentage of ethnic minorities or women in an educational employer’s workforce, in order to obtain the educational benefits of an ethnically or sexually diverse workforce, to provide ethnic minority or female role models for all students, or to alleviate the effects of societal discrimination.
4. The term “education employee” means a person employed in a professional or education support position by an educational employer.
5. The term “educational employer” means a public school district, a college or university, or any other public entity which employs education employees.
6. The term “ethnic minority” means those persons designated as ethnic minority by statistics published by the United States Bureau of the Census. This designation shall specifically include American Indian/Alaska Native, Asian, Native Hawaiian or other Pacific Islander, Black, and Hispanic.
7. The term “qualified” means that the person meets the legal requirements for holding the position, and has the skills necessary to perform the functions of the position.
8. (a) When affirmative action is used to cure the effects of past ethnic or sexual discrimination by a particular educational employer, the term “underrepresented” means that the percentage of ethnic minorities or women in an educational employer’s workforce is significantly below the percentage of qualified ethnic minorities or women in the relevant labor market;
   
   (b) When affirmative action is used to achieve or maintain diversity in an educational employer’s workforce, the term “underrepresented” means that the percentage of ethnic minorities or women in an educational employer’s workforce is significantly below the percentage that is necessary to achieve the educational and societal benefits of ethnic or sexual diversity.

Principles

1. NEA reaffirms its strong support for the use of affirmative action in educational employment (a) to cure the effects of past ethnic or gender discrimination by the particular educational employer involved, and (b) to achieve or maintain ethnic or gender diversity in an educational employer’s workforce.
2. When necessary for the above purposes, affirmative action should be used with regard to recruitment, training, employment, assignments, transfers, promotions, layoff, recall, and other aspects of the educational employment relationship.
3. The employment of a non-ethnic minority or male education employee should not be terminated solely for the purpose of curing the effects of past discrimination by the particular employer involved, or achieving or maintaining diversity in an educational employer’s workforce. When a fiscal exigency, a reduction in student enrollment, or other bona fide factor requires a reduction in an educational employer’s workforce, affirmative action may be appropriate to maintain—but not to increase—the pre-existing percentage of ethnic-minority or female employees in the workforce.
4. Affirmative action should be used, in certain circumstances, to make choices among qualified individuals. An ethnic-minority or woman applicant who is not qualified for the position in question should not, on the basis of ethnicity or gender, be given preference over a qualified non-minority or male applicant. An educational employer should be allowed to use affirmative action training programs and take other ethnic- or gender-conscious actions in order to expand the pool of qualified ethnic-minority or female applicants for educational employment positions.
5. The use of affirmative action is appropriate when ethnic minorities or women are underrepresented in an educational employer’s workforce as a whole, or when they are underrepresented in the professional educator, education support, or administrator/supervisor categories of an educational employer’s workforce. Whether the use of affirmative action is appropriate to deal with the underrepresentation of ethnic minorities or women at a school building, in an operational department, or in some other segment of an educational employer’s workforce should be determined on a case-by-case basis after assessing all of the relevant factors.
6. (a) Decisions as to the use of affirmative action in educational employment—including decisions as to the relationship between affirmative action and seniority—should be made voluntarily by the educational employer and the local employee organization through collective bargaining or other form of bilateral decisionmaking.
   
   (b) Although NEA urges its affiliates to support the use of affirmative action in educational employment as recommended in this Statement of Policy, affiliates are free to decide for themselves what positions to take in this regard. Accordingly, the NEA will not deny support to an affiliate that is seeking to enforce contractual or statutory employment rights solely because those rights are contrary to positions recommended in this Statement of Policy.
7. (a) Whether NEA participates in litigation involving affirmative action will be determined on a case-by-case basis after considering all of the relevant factors, including, among others, the NEA policy on the issue presented, the position (if any) taken by NEA affiliates, and the precedential effect of the litigation.
   
   (b) NEA will participate in litigation involving the relationship between affirmative action and seniority only with the approval of an NEA governing body (i.e., Representative Assembly, Board of Directors, or Executive Committee).
   
   (c) A court should have the power to impose an affirmative action remedy that is contrary to the seniority rights of education employees only when there has been a judicial finding that the underrepresentation of ethnic minorities or women in the workforce is attributable to unlawful discrimination by the particular educational employer involved, and then only to the extent that the remedy is necessary to cure the effects of the unlawful discrimination.

^∗NEA’s current policies reflect a concern with the fact that there traditionally has been a disproportionately low percentage of men employed as teachers in elementary schools, and support the use of affirmative action to cure such underrepresentation. The failure to address this concern in this Policy Statement does not in any sense mean that NEA is altering its position in this regard. To the contrary, it remains the position of NEA that, in appropriate circumstances, affirmative action should be used to increase the percentage of male elementary school teachers. However, because the historical and legal variables involved in the underrepresentation of male elementary school teachers are so markedly different from those involved in regard to ethnic minorities and women, NEA believes that the problems should not be dealt with in the same Policy Statement.