Both private and public employers use voluntary affirmative action. However, both private and public employers must satisfy certain criteria in order to comply with Title VII. The employer must have a legitimate reason for adopting a plan. Also, the plan cannot unduly interfere with the employment opportunities of non-minority or male workers or job applicants to the extent that their interests are “unnecessarily trammeled.” The EEOC has promulgated Guidelines on Affirmative Action that explain how to develop a lawful affirmative action plan under Title VII.
Often, affirmative action remedies are agreed upon to settle a discrimination case. These remedies are implemented by a consent decree. A court must approve provisions in consent decrees that provide for the employer’s adoption of an affirmative action program. Affirmative action contained in the decree is viewed as voluntary. The action may benefit individuals who were not the victims of the discriminatory practice at issue.