Affirmative Action


What Is Affirmative Action?

Equal employment opportunity legislationOpens in new window requires managers to provide the same opportunities to all job applicants and employees regardless of race, color, religion, sex, national origin, or age. While EEO law is largely a policy of nondiscrimination, affirmative action requires employers to analyze their workforce and develop a plan of action to correct areas of past discrimination.

Affirmation action is a policy that goes beyond equal employment opportunity by requiring organizations to comply with the law and correct past discriminatory practices by increasing the numbers of minorities and women in specific positions.

Affirmative action is achieved by having organizations follow specific guidelines and goals to ensure that they have a balanced and representative workforce. To achieve these goals, employers must make a concerted effort to recruit, select, train, and promote members of protected classes.

Employers must locate not only minority candidates who are qualified, but also those who, with a reasonable amount of training or physical accommodation, can be made to qualify for job openings.

Establishing Affirmative Action Programs

Employers establish affirmative action programs for several reasons. Affirmative action programs are required by the OFCCP for employers with federal contracts greater than $50,000.

The OFCCP provides regulations and suggestions for establishing affirmative action plans. Specifically, employers must

  1. provide an organizational profile that graphically illustrates their workforce demographics,
  2. establish goals and timetables for employment of underutilized protected classes,
  3. develop actions and plans to reduce underutilization, including initiating proactive recruitment and selection methods, and
  4. monitor progress of the entire affirmative action program.

Affirmative action programs may also be required by court order when an employer has been found guilty of past discrimination, particularly when discrimination has been pervasive and a long-held organizational practice. For example, an employer practice of denying promotional opportunities to women or persons of color could be corrected through an affirmative action court order.

A court-ordered program, often implemented through a consent degree between the court and employer, will require the setting of hiring and promotional goals along with stated timetables for compliance. When the requirements of the consent degree are met, the employer is no longer bound by the court order.

Many employers voluntarily develop their own affirmative action programs to ensure that protected class members receive fair treatment in all aspects of employment. Intel, Levi Strauss, the City of Portland, and Hilton Hotels use these programs as a useful way of monitoring the progress of employees while demonstrating good faith employment efforts.

Employers with voluntary affirmative action programs will actively encourage employment diversity, post job opportunities with minority agencies, remove unnecessary barriers to employment, and offer comprehensive training and mentoring to protected class members. However, as HR professionals readily note, the success of any voluntary affirmative action program largely depends on the support given it by senior managers and supervisors at all organization levels.

The EEOC recommends that organizations developing affirmative action programs follow specific steps, as shown in Exhibit X below.
Exhibit X. EEOC Recommendations
  1. Issue a written equal employment opportunity policy and affirmative action commitment.
  2. Appoint a top official with responsibility and authority to direct and implement the program.
  3. Publicize the policy and affirmative action commitment.
  4. Survey present minority and female employment by department and job classification.
  5. Develop goals and timetables to improve utilization of minorities and women in each area where underutilization has been identified.
  6. Develop and implement specific programs to achieve goals.
  7. Establish an internal audit and reporting system to monitor and evaluate progress in each aspect of the program.
  8. Develop supportive in-house and community programs.

In pursuing affirmative action, employers may be accused of reverse discrimination, or giving preference to members of protected classes to the extent that unprotected individuals believe they are suffering discrimination. When these charges occur, organizations are caught between attempting to correct past discriminatory practices and handling present complaints from unprotected members alleging that HR policies are unfair. It is exactly this “catch-22” that has made affirmative action one of the most controversial issues of the past fifty years.

Reverse discrimination is the act of giving preference to member of protected classes to the extent that unprotected individuals believe they are suffering discrimination.

There exists a long line of Supreme Court cases supporting voluntary affirmative action programs. In two leading case, University of California Regents v. Bakke and United States Steelworkers of America v. Weber, the central issue before the Court was equal treatment under the law as guaranteed in the equal protection clause of the Fourteenth Amendment and past employer discriminatory practices.

In these cases, the Court ruled that applicants must be evaluated on an individual basis and race can be one factor used in the evaluation process as long as other competitive factors are considered. The Court stated that affirmative action programs were not illegal per se as long as rigid quota systems were not specified for different protected classes.

Also, voluntary affirmative action programs are permissible where they attempt to eliminate racial imbalances in traditionally segregated job categories. The Supreme Court did not endorse all voluntary affirmative action programs, but it did give an important push to programs voluntarily implemented and designed to correct past racial or gender imbalances.

Today, employers wishing to implement voluntary affirmative action plans must show justification for the plan and reasonableness of the methods used to implement it. Additionally, voluntary affirmative action programs must be remedial in intent and not punitive. Establishing rigid employment quotas, reserving job positions, hiring unqualified workers, or laying off employees in order to hire or retain protected class members are clearly illegal employer actions.

Managing Diversity

Affirmative action is a highly emotional and controversial subject because affirmative action programs affect all employees regardless of gender, race, or ethnicity. At the core of the debate is the concern that affirmative action leads to preferential treatment and quotas for selected individuals and thus results in reverse discrimination against others.

Additionally, affirmative action as a national priority has been challenged for the following reasons:

  • Affirmative action has not consistently resulted in improvement of the employment status of protected groups.
  • Individuals hired under affirmative action programs sometimes feel prejudged and assumed capable only of inferior performance, and in fact, these individuals are sometimes viewed by others as “tokens.”
  • Affirmative action programs of either voluntary or forced compliance have failed to effectively assimilate protected classes into an organization’s workforce.
  • Preferences shown toward one protected class may create conflicts between other minority groups.

Judicial support for affirmative action as a worthy national goal has changed remarkably over the years. For example, early support for affirmative action was demonstrated through the Bakke and Weber decisions. However, during the mid-1990s, federal courts increasingly restricted the use of race and ethnicity in awarding scholarships, determining college admissions, making layoff decisions, selecting employees, promoting employees, and awarding government contracts. Several important court cases illustrate this point.

In Adarand Constructors v. Pena (1995), the court ruled that federal programs that use race or ethnicity as a basis for decision-making must be strictly scrutinized to ensure that they promote “compelling” governmental interests. In the majority opinion, the Court declared that “strict scrutiny of all governmental racial classifications is essential” to distinguish between legitimate programs that redress past discrimination and programs that “are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.”

In a 1996 decision affecting admission standards at the University of Texas law school, the Court ruled in Hopwood v. State of Texas that diversity could not constitute a competing state interest justifying racial preference in selection decisions. The Court noted that the school could not discriminate “because there was no compelling justification under the Fourteen Amendment or Supreme Court precedent for such conduct even if it was designed to correct perceived racial imbalance in the student body.”

Then, in a landmark and highly significant affirmative action ruling, the Supreme Court held in Grutter v. Bollinger that colleges and universities can consider an applicant’s race as a factor in admission decisions. The decision upheld an admission policy at the University of Michigan Law School in which officials considered an applicant’s race along with other factors when making admission decisions. Writing for the Court, Justice Sandra Day O’Connor noted that colleges and universities have compelling educational reasons for seeking a diverse student body in light of a growing diverse society and a global business environment. Justice O’Connor stated, “Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realized.”

The future of affirmative action may rest not in voluntary programs, judicial decisions, or laws but in managerial attitudes that value diversity in the workforce. Managers who embrace a diverse workforce acknowledge individual employee differences and the contributions made by people of varied abilities.

Organizations that approach diversity from a practical, business-oriented perspective (rather than a court-ordered affirmative action mandate) will employ and promote protected class members as a means for developing competitive advantage. Viewed in this manner, greater workforce diversity will significantly enhance organizational performance through knowledge of diverse marketplaces and creative problem-solving.

For example, Michael Goldstein, chairman of the Toys “R” Us Children’s Fund, supports both affirmative action and diversity because “our customers are not one group; they comprise all of America. It’s important to be able to serve them.” Eastman Kodak maintains that it is committed to diversity because the composition of its customer base and of the workforce is changing. For both of these organizations, commitment to the advantages of diversity automatically achieve the goals of affirmative action.

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  • References
    • Affirmative Action and Equal Employment: A Guidebook for Employers, vol. 1 (Washington, DC: Equal Employment Opportunity Commission, 1974), 16 – 17.

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