AFFIRMATIVE ACTION



Affirmative action refers to a range of corporate and social policies that are intended not only to eliminate discrimination, whether in employment, education, or contracting, but also to redress the effects of past discrimination. The underlying motive for affirmative action is the principle of equal opportunity, which holds that all persons have the right to equal access to, self-development, such that persons with equal abilities come to have equal opportunities. In the business world these opportunities revolve mostly around employment practices, including the hiring process, compensation, and promotions.

Affirmative action programs differ widely in the extent to which they attempt to overturn discrimination. Some programs might simply institute reviews of the hiring process for women, minorities, and other affected groups. Other affirmative action programs might explicitly prefer members of affected groups. In such programs, minimum job requirements are used to create a pool of qualified applicants from which members of affected groups are given preference.

The interpretation and implementation of affirmative action have been contested since its origins in the 1960s. A central issue of contention is the definition of discriminatory employment practices. As the interpretation of affirmative action evolved, employment practices that were not intentionally discriminatory but that nevertheless had a "disparate impact" on affected groups were considered a violation of civil rights regulations. Another central issue was whether members of affected groups could receive preferential treatment and, if so, the means by which they could be preferred. This issue is sometimes referred to as the debate over quotas.

Despite the widespread use of affirmative action and other equal rights measures, many women and members of minority groups in the United States believe they are still subject to unfair treatment on the job. This, they conclude, means that affirmative action will be necessary for the foreseeable future. Indeed, the middle and late 1990s saw a wave of high-profile sex- and race-discrimination litigation brought against major companies, including Amtrak, Boeing, Mitsubishi, and Texaco.

DOES IT WORK?

While part of the controversy surrounding affirmative action centers on the social and legal principles of fairness, many advocates for and against affirmative action base their positions on what they allege are the practical results of such programs.

Neither camp disputes that affirmative action policies have increased the representation of women and minorities in contexts in which affirmative action has been practiced. A common perception, however, is that affirmative action favors underqualified candidates solely because they are members of an underrepresented group. As a result, the logic follows, well-qualified candidates become victims of discrimination themselves—so-called "reverse discrimination." For the business, according to this theory, the outcome is that the organization is staffed with poorly equipped workers.

A recent study at Michigan State University attempted to measure just this: whether performance was adversely affected at firms that exercised affirmative action policies. Researchers Harry J. Holzer and David Neumark culled through employer survey data from the early 1990s and found little support for the notion that affirmative action leads to lower performance. On the contrary, the data suggested that even women or minorities who were hired with fewer formal qualifications tended to perform on a level comparable to that of their non-minority peers.

The study highlighted that, beyond simply hiring minorities, other corporate policies influenced the success of affirmative action programs. Notably, these included strong recruitment and training programs, which helped ensure that compatible candidates were selected and that employees had opportunities to gain new skills on the job.

REGULATORY AGENCIES

In addition to the U.S. Department of Labor's Equal Employment Opportunity Commission and the Office of Federal Contract Compliance, a host of agencies operate to regulate affirmative action at the state and local level. These include state attorneys general, human rights commissions, and 40 state-level versions of the EEOC. Prior to issuing rulings, the EEOC and OFCC, along with their state and local analogs, are required to submit proposed rulings to the public and the affected industry to elicit their response.

The EEOC can refer violations of consent decrees (settlements agreed to by a firm accused of employment discrimination) to the U.S. Department of Justice for criminal prosecution. Regulating agencies can visit work sites and issue subpoenas, although some court rulings have held that the agency must have a reasonable basis for conducting such investigations. Though the EEOC and OFCC can initiate class action suits, instances of suspected employment discrimination can also be tried in administrative hearings. These hearings are generally open to the public and are conducted by the agency's law judge, who gives the agency's staff and the employer's attorney equal time to make their case. The hearing is concluded with the decision of the judge, and employers who are dissatisfied with the judge's ruling can appeal to either the head of the agency or to a court of law. The regulating agencies may also attempt less formal methods of resolution, including conciliation meetings.

Under Title VII of the Civil Rights Act of 1964, plaintiffs must file charges with the EEOC within 180 days of the alleged violation, or within 300 days if the plaintiff initially contacted a state or local equal opportunity employment agency. Title VII also requires that EEOC-approved notices be posted in a prominent place at the location of employment. The EEOC generally requires that plaintiffs take up their grievances with state and local agencies before it will undertake an investigation. The EEOC also encourages plaintiffs to settle disputes out of court.

HISTORY OF AFFIRMATIVE ACTION

DEVELOPMENT IN THE 1960S.

Affirmative action has its roots in the postwar civil rights movement. In March of 1961, President John F. Kennedy signed Executive Order 10925, which established the President's Commission on Equal Employment Opportunity. The Order stated that contractors doing business with the government "will take affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to their race, creed, color, or national origin." The Order did not advocate preferential treatment of affected groups but rather sought to eliminate discrimination in the traditional sense.

The legal status of affirmative action was solidified by the Civil Rights Act of 1964. This landmark legislation prohibited discrimination in voting, public education and accommodations, and employment in firms with more than fifteen employees. Title VII of the Civil Rights Act offered a similar understanding of affirmative action as Executive Order 10925, stating that the act was not designed "to grant preferential treatment to any group because of race, color, religion, sex, or national origin." In an effort to break an 82-day filibuster by southern senators, the act's sponsors had to assure that preferential treatment of affected groups would not become law. In an Interpretive Memorandum of Title VII, Senators Joseph Clark and Clifford Case emphasized this non-preferential interpretation of affirmative action. They wrote: "There is no requirement in Title VII that an employer maintain a racial balance in his workforce. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of Title VII, because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race."

The Civil Rights Act did not provide criminal penalties for employers that discriminated, nor did the civil remedies established by the act include compensation for pain and suffering or punitive damages. Rather the act sought to establish a conciliation process by which victims would be restored to the situation they would have had in the absence of discrimination. To carry out the conciliation process, the act created a new federal agency as a branch of the U.S. Department of Labor, the Equal Employment Opportunity Commission (EEOC). The EEOC acts as a facilitator between plaintiffs and private employers and also pressures violating employers to provide compensation, whether in the form of back pay or restitution. The EEOC also provides legal support for plaintiffs should the plaintiffs pursue their grievances in court.

Two important issues became contested in the wake of the Civil Rights Act of 1964: whether unintentional or structural discrimination constituted violation of the principle of equal opportunity and the extent to which preferential treatment should be given to affected groups. These issues came to the forefront during the Johnson administration. In a 1965 commencement speech, President Johnson argued that equality of opportunity required more than simply ending discrimination. Rather, he argued for a more active interpretation of affirmative action that would assure "equality as a result."

Johnson's Executive Order 11246 of 1965 established guidelines for firms contracting with the federal government and was enforced by the U.S. Department of Labor's newly created Office of Federal Contract Compliance (OFCC). As a consequence, all firms contracting with the federal government that had more than fifty employees and $50,000 or more in federal contracts were expected to implement affirmative action in hiring that would result in a greater number of minority hires.

In 1966, the U.S. Department of Labor began collecting employment records with breakdowns by race in order to evaluate hiring practices, overturning earlier policies of the Eisenhower and Kennedy administrations. In 1968, the Office of Federal Contract Compliance issued regulations which required, for the first time, that specific targets be set by which the effects of affirmative action programs could be evaluated. The regulations stated that "the contractor's program shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity." It was in these regulations and analogous measures by the Equal Employment Opportunity Commission that the debate over affirmative action quotas had its origins.

Goals and timetables were established by the U.S. Department of Labor using "utilization analysis," which statistically compared the proportion of employed women and minorities in a firm with the proportion of women and minorities in the regional workforce, deriving a measure of what the Department called "disparate impact." In the absence of discrimination, it was assumed that these proportions would be roughly equal and, furthermore, that they should be roughly equal. Since these regulations focused on results and not intent, the structural nature of discrimination was officially recognized. In addition, these regulations provided an official and measurable basis for the preferential treatment of affected groups.

EXPANSION IN THE 1970S.

The future of affirmative action was in doubt when Richard Nixon took office in 1969, as Nixon had run against Johnson's Great Society programs. However with the appointment of George Shultz, later Ronald Reagan's Secretary of State, as head of the U.S. Department of Labor, the implementation of affirmative action programs continued. Key among the Nixon era measures was the implementation of the Philadelphia Plan. The plan was initially conceived by the Johnson administration as a means to address the highly segregated construction industry of Philadelphia. Attacked by the construction industry, construction unions, and the controller general, the plan languished at the end of the Johnson administration. In 1969, Shultz revived the plan, calling for specific percentages of minorities to be hired. In 1970 the U.S. Department of Labor issued Order No. 4 and in 1971 Revised Order No. 4, new sets of affirmative action regulations that clarified and consolidated the department's regulations of 1968.

In the landmark Griggs v. Duke Power Co. case of 1971, the Supreme Court unanimously ruled against Duke's requirement of high school diplomas or I.Q. tests for those applying for unskilled jobs. The decision held that "Title VII forbids not only practices adopted with a discriminatory motive, but also practices which, though adopted without discriminatory intent, have a discriminatory effect on minorities and women." The ruling provided a legal foundation for cases of "disparate impact," asserting that employers may not use job requirements that adversely affect women and minorities unless required by what it termed "business necessity" (for example, in the case of serious health or safety threats to co-workers or customers).

The Equal Employment Opportunity Commission was strengthened by the Equal Employment Opportunity Act of 1972, enabling the Commission to file class action suits. Shortly thereafter, the EEOC challenged the employment practices of AT&T Corp., which was compelled to pay $15 million in back pay to 13,000 women and 2,000 minority men.

Under the Carter administration, the Uniform Guidelines on Employee Selection Procedures were established under which the "four-fifths rule" was established. This rule was significant in that it gave an explicit benchmark to determine disparate impact, which had been left vague in earlier U.S. Department of Labor regulations. The four-fifths rule held that firms contracting with the federal government should not be allowed to hire any race, sex, or ethnic group at a rate below four-fifths that of any other group.

Another significant Supreme Court ruling on affirmative action came in the 1978 case, Regents of the University of California v. Bakke. Under the University of California at Davis's admission policies, 16 of 100 places were set aside for minority applicants. Allan Bakke was a white applicant who was denied enrollment to Davis's medical school, even though his test scores were higher than the minority students who were admitted. Casting the deciding vote, Justice Lewis Powell held that Bakke should be admitted to the program since Davis's policies constituted a rigid quota, but that, nonetheless, Davis could continue to favor minorities in its admission practices and that it had a "compelling state interest" to attain a diversified educational environment.

BACKLASH IN THE 1980S.

The tide favoring affirmative action began to turn in the 1980s during the Reagan and Bush administrations. In the 1980 campaign, Reagan stated, "We must not allow the noble concept of equal opportunity to be distorted into federal guidelines or quotas which require race, ethnicity, or sex—rather than ability and qualifications—to be the principal factor in hiring or education." Through court appointments, hiring and firing decisions, and budget cuts, the Reagan administration sought to end affirmative action as it had evolved since the Johnson administration. Between 1981 and 1983, the budget of the Equal Employment Opportunity Commission (EEOC) was cut by 10 percent and the staff by 12 percent. The Office of Federal Contract Compliance was hit harder yet, with budget cuts of 24 percent and staff cuts of 34 percent during these same years.

Two important Supreme Court rulings in the late 1980s also acted to substantially weaken affirmative action. The 1988 case Watson v. Fort Worth Bank and Trust overturned the landmark 1971 Griggs v. Duke Power Co., shifting the burden of proof in employment discrimination cases from employers to plaintiffs. In the 1989 case Wards Cove Packing Company v. Antonio, the Court ruled that a plaintiff could not simply show disparate impact to prove discrimination, but must demonstrate that a specific employment practice created the existing disparity.

TUMULT IN THE 1990S

The 1990s were characterized by conflicting attempts to alter affirmative action practices in the United States. Supporters of affirmative action sought to recover legal ground lost during the 1980s and fine-tune affirmative action programs in response to critics' charges. Meanwhile, opponents continued to call for the scaling back or elimination of such programs. In the end, both sides claimed legislative and legal victories, and by the close of the decade the future of affirmative action remained embroiled in controversy and uncertainty.

In an effort to fight the dramatic rollback of affirmative action, Congress proposed the Civil Rights Act of 1990. The act was passed by large majorities in the House and Senate, but was vetoed by President Bush. One year later, Congress passed the Civil Rights Act of 1991, which Bush reluctantly signed into law. The act returned the burden of proof to employers in disparate impact cases, requiring employers to prove that employment practices that resulted in disparate impact were "job related" and "consistent with business necessity." The act thus overturned the Supreme Court's rulings in Watson v. Fort Worth Bank and Trust and Wards Cove Packing Company v. Antonio. In short, the view of affirmative action advocated by the Johnson administration has won out to the present. In addition, the Civil Rights Act of 1991 addressed issues of unlawful harassment and intentional discrimination, allowing minority and female victims of intentional discrimination to be awarded up to $300,000 in compensatory damages in addition to back pay and restitution.

The Americans with Disabilities Act of 1990 extended protection from employment discrimination to disabled Americans. The employment provisions of the act went into effect in 1992 and covered all private firms with more than 25 employees. The act's employment regulations were enforced by the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance.

But significant opposition to affirmative action persisted into the late 1990s. Some of the most dramatic reversals occurred not in the business sector, but in state-run academic institutions. In the mid- to late 1990s universities in Texas and California began to scale back or end affirmative action in admissions. The U.S. Supreme Court and some members of Congress have also been sympathetic to some efforts to phase out or restrict affirmative action. Some observers regarded a sharply divided 1995 Supreme Court decision as a watershed. In Adarand Constructors, Inc. v. Pena, the Court ruled that federal affirmative action programs must follow strict guidelines based on compelling needs and specific intended outcomes; these were the same standards already in place for state and local government programs. The contested federal policy was a Small Business Administration bonus program for minority-owned businesses. The 5-4 majority believed that the policy illegally extended special privileges to groups because the Constitution only provided for protecting the equal rights of individuals, rather than groups.

In response to this upheaval in public sentiment toward affirmative action, a 1997 report in the human resources management journal HRFocus named affirmative action as one of the eight most important legal issues facing corporate personnel departments.

SEE ALSO : Gender Discrimination ; Sexual Harassment

FURTHER READING:

Badgett, Lee; Mary Virginia, and Margaret C. Simms, eds. Economic Perspectives on Affirmative Action. Lanham, MD: University Press of America, 1995.

Chay, Kenneth Y. "The Impact of Federal Civil Rights Policy on Black Economic Progress." Industrial and Labor Relations Review, July 1998.

Fletcher, Meg. "Firms Fault ADA-Related Job Regulations." Business Insurance, 22 February 1993.

Fosu, Augustin. "Occupational Mobility of Black Women, 1958-1981: The Impact of Post-1964 Antidiscrimination Measures." Industrial and Labor Relations Review, January 1992, 281-294.

Goldberg, Adin C. "Top 8 Legal Issues Affecting HR." HRFocus, December 1997.

"How to Write an Affirmative Action Plan." American Demographics, March 1993, 56.

Koretz, Gene. "Does Hiring Minorities Hurt?" Business Week, 14 September 1998, 26.

Mills, Nicolaus, ed. Debating Affirmative Action: Race, Gender, Ethnicity, and the Politics of Inclusion. Dell Publishing, 1994.

Taylor, Bron Raymond. Affirmative Action at Work: Law, Politics, and Ethics. University of Pittsburgh Press, 1991.



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