Reasonable Basis
A key concept in determining whether a reasonable basis exists for affirmative action is underutilization. Underutilization exists when the percentage of women or persons of color in one or more of an employer’s job groups is smaller than the percentage of women or persons of color with the necessary skills for that type of employment. The basic premise is that absent discriminatory practices in the past or present, these percentages should roughly match.
Under DOL regulations, contractors need to compare the demographics of their existing workforce with the availability of women and minorities for each of their job groups. Availability is determined by considering the percentage of minorities or women with requisite skills in the reasonable recruitment area and those trainable or promotable within the contractor’s organization. “Trainable” or “promotable” refers to persons who could, with training that the employer could reasonably provide, be rendered qualified within the plan year.