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 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.” There are many other laws that 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. Not only does it require non-discrimination, yet it also 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. The most recent regulations that have been released regarding the Rehabilitation Act align the non-discrimination requirements of the ADA with the Sections 501 (which applies to federal employers) and Section 503 (which applies to federal contractors) of the Rehabilitation Act. However, the regulations go further to require affirmative action planning by the impacted employers. Both laws set targets for including people with disabilities in the workforce. They ask that covered entities 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.