Affirmative action (AA) is a public policy designed to eliminate systemic bias against members of under-represented groups in employment and education. Although the use of AA is not limited to the United States, it can be argued that it is in the United States that AA has its greatest influence on business, education, and the employment practices of federal contractors. As a result, AA is the subject of considerable debate in the U.S. media. AA requires an organization to take proactive steps toward ensuring that the demographic characteristics of its workforce are consistent with the demographic characteristics of the labor markets in which it recruits. The extent of the controversy surrounding AA in employment and education is a direct function of the deeply felt differences of opinions about the policy’s usefulness and fairness. The controversial nature of AA raises doubts about its future in the United States and in other countries as well.
In discussing its origins in the United States, many are unaware that AA did not originate through federal legislation approved by congressional vote. Rather, the roots of AA lie primarily in the executive branch of government. AA has evolved through a series of Executive Orders (EO) originating during Franklin Roosevelt’s administration in the early 1940s. EOs are documents issued by the president of the United States to manage the federal government and are listed in the Code of Federal Regulations (CFR). Discrimination-related EOs initially targeted racial discrimination in the armed services and in organizations doing business with the federal government.
Perhaps the EO most influential in shaping today’s AA is EO 11246. Issued in 1965 by President Lyndon Johnson, EO 11246 requires that federal contractors with 50 or more employees and contracts with the government of $50,000 or more have written AA plans and track progress toward their employment goals throughout the year. It is important to note that while many U.S. business organizations develop voluntary AA plans, only organizations that conduct business with the federal government are required to have a formal AA plan and, as such, are regulated by EO 11246 (which has been amended since 1965).
Enforcement of EO 11246 by Department of Labor Employment Standards
The administration’s Office of Federal Contract Compliance Programs (OFCCP) investigates discrimination claims filed against employers and also conducts random compliance reviews of organizations under its jurisdiction. Another discrimination-related enforcement agency in the United States, the Equal Employment Opportunity Commission (EEOC), is charged with enforcing the various civil rights laws (most notably, Title VII of the Civil Rights Acts of 1964 and the Civil Rights Act of 1991) and is usually not involved in AA enforcement.
An AA plan must be completed annually by a federal contractor and is based on data collected from within and outside the organization. The first component of a plan is an organizational profile or workforce analysis. In this component, the organization’s jobs are listed, and an inventory is created showing the composition (by gender and race) of the incumbents in these jobs. The workforce analysis lists the incumbents in each job according to gender and the five racial categories that are used for reporting purposes in AA: White (not of Hispanic origin), Black (not of Hispanic origin), Hispanic, Asian or Pacific Islander, and American Indian or Alaskan Native.
The second component of a plan is job group analysis. In this analysis, jobs are classified into categories in accordance with their level of responsibility, duties, and required skills and knowledge. The categories used may be the same listed on EEO-1 forms (documents for reporting purposes): officials and managers, professionals, technicians, sales workers, office and clerical, crafts workers (skilled), operatives (semiskilled), laborers (unskilled), and service workers. The job group analysis lists the incumbents in each job according to gender and the five racial categories.
After completing the job group analysis, an availability analysis is then completed that identifies the percentage of women and minority group members in the organization’s local labor market in each of the nine job groups, as well as the percentage of women and minorities in the organization who are promotable into each of the job categories. A comparison is then made between the race and gender composition of the organization’s current workforce and the availability in the labor market for each job group. If this comparison indicates that significantly more women and/or minority group members are available in the labor market in any of the job groups, relative to the organization’s incumbents in these groups, the organization is then required to develop an action plan to reduce this disparity. This plan must include specific steps the organization agrees to take, the goals and timetables that will be used to assess the firm’s progress, and, finally, the assignment of responsibility for its implementation.
AA, then, does not require the establishment of hiring or promotion quotas by employers. Rather, it requires a federal contractor, based on current labor market and workforce data, to take proactive steps to ensure progress is made toward reaching a consistency between the demographic composition of its workforce and the composition of the labor markets from which it recruits. In its reviews and investigations, the OFCCP assesses the organization’s good-faith efforts toward meeting its employment goals, not in imposing employment quotas.
Arguments against the need for AA in employment and education are often based on the notion that establishing goals and timetables forces employers or university admission officers to give preferential treatment on the basis of race or gender and that this practice is contrary to Title VII of the Civil Rights Act of 1964. Title VII made it illegal for employers to discriminate on the basis of race or sex (along with color, religion, and national origin). Opponents of AA also argue that preferential treatment based on race or gender violates the Equal Protection clause of the Fourteenth Amendment to the Constitution, which guarantees all citizens equal protection under the law. Finally, opponents also claim that AA is contrary to the meritocratic individualism on which the United States is based, as opportunities are allotted based not on merit, but on demographic characteristics.
Conversely, proponents of AA argue that such proactive steps are necessary to compensate for past discrimination and minimize the risk of its continuation in the future. At the extreme, proponents often claim that anti-AA attitudes are a manifestation of the continued presence of racism in the United States (thus proving the need for AA). Less extreme but equally passionate views in favor of AA claim that AA is needed to provide the same opportunities for members of protected classes as those that are available to majority group members. These opportunities may simply mean becoming aware of professional networks to which many minority group members have not had access in the past. In addition, those who favor AA also assert that illegal discrimination against women and minority group members still exists today but that it is not openly expressed. As such, a systematic, data-driven approach like AA is still needed to guard against the more prevalent, but equally insidious, covert forms of today’s discrimination.
Since public opinion of AA in the United States is so clearly divided, it is not surprising that a significant body of research investigating AA has evolved since its inception. This research has focused on areas such as individual attitudes toward AA, the study of AA’s effects on its targeted beneficiaries and non-beneficiaries, and its influence on workforce diversity. Not surprisingly, research has generally found that members of minority groups (the intended beneficiaries of AA) express more favorable attitudes toward AA than do members of majority groups. Some researchers have speculated that majority group members are likely to hold negative attitudes toward AA since they are less likely than minority group members to believe that discrimination exists and, as such, do not see the need for practices that are intended to minimize discrimination. Interestingly, however, the research has also reported that some of the negative attitudes expressed by majority group members toward AA are attributable to misinformation about these programs. In fact, when questioned about their attitudes toward specific proactive employment practices that are consistent with an AA plan, majority group members are likely to express positive attitudes toward these practices. For example, while there is a strong consensus of public opinion against the use of preferential treatment of minorities and women in either employment or education, equally strong opinions are often expressed in favor of offering training programs to help disadvantaged individuals get ahead or be given equal access to opportunities readily available to members of the majority.
In addition to studying attitudes toward AA, research has also explored AA’s effects on its intended beneficiaries and non-beneficiaries. Perhaps the most interesting studies of the effects of AA have focused on the change in the workforce participation of AA’s intended beneficiaries. Studies have found, for example, that the employment share of Black males and females increased faster in federal contractor establishments than in non-contractor firms in the late 1970s, a trend that may be attributable to the stricter enforcement of AA policies by the OFCCP. However, perhaps indicative of AA’s limitation as a public policy, during this same period of time, similar increases were not found in the employment share of Black males and females in skilled occupations.
Studies have also raised awareness of the potential for AA to negatively influence its targeted beneficiaries. For example, some evidence has shown a drop in a woman’s self-esteem and/or self-confidence that is associated with her belief that she was chosen for a position due solely to a policy of preferential selection based on gender and not her qualifications for the job. Non-beneficiaries of AA may also hold negative attitudes toward those who they feel benefit from AA. The stigma of believing an individual was hired or promoted due solely to meeting AA goals implies that the woman or minority group member is less qualified for the position than a man or member of a majority group. As such, AA beneficiaries are often thought of by majority group members as being incompetent. It is also likely, under these conditions, that stigmatization may become a self-fulfilling prophecy in the organization, resulting in the ultimate failure of many women or minority group members and a reinforcement of the majority’s belief that AA forces contractors to hire unqualified employees, based solely on their race or gender.
For non-beneficiaries, AA is also associated with claims of reverse discrimination from majority group members. However, it has been reported that these claims occur more frequently by Whites employed by companies that do not use AA in their employment practices than by Whites employed by companies that do. This phenomenon may be minimized by emphasizing the qualifications of the individuals who are hired or promoted, along with communicating the fairness of the selection procedures used by the organization.
Studies of AA programs have also focused on their relation to the degree of diversity in an organization’s workforce. Evidence has been found that human resource practices that consciously focus on the demographic characteristics (gender and race) of employees, known as identity-conscious practices, are positively associated with the level of the highest-ranking woman in an organization and the percentage of minority employees in the management group. Conversely, human resource practices that do not focus on demographic characteristics of employees, identity-blind practices, are not related to the presence of women and minorities in these companies. Equally important, the number of the identity-conscious practices (not identity-blind) used by organizations was related to whether the company was regulated by the OFCCP, that is, whether it was an AA employer.
Other studies have distinguished having a formal AA plan from using AA in both recruitment and selection. These studies have shown that the use of AA in recruitment is positively associated with reaching a wider, more diverse range of job applicants and, probably as a result of this, the employment of more women and minorities compared with firms that do not use AA in their recruitment practices. Firms that use AA in staffing procedures also tend to use more recruitment practices and tend to examine their applicants more intensely than those that do not use AA in their hiring practices. These same studies showed that using AA in staffing is related to hiring more employees who do not meet the academic qualifications established for the positions but that members of minority groups and women hired who are educationally underqualified for their positions are just as likely to receive promotions and are paid comparatively more than employees who are academically qualified.
Although considered a U.S. policy, AA-type policies also exist outside the United States, but with one substantial difference. Governmental reservationist policies exist in India that are designed to protect the majority indigenous populations in some areas against more educated and more successful minority group members. Like India with its “sons of the soil” policies, the Malaysian government has mandated policies that impose quotas on admission to government educational institutions, qualification for public scholarships, positions in government, and business ownership for the bumiputras, the indigenous majority in Malaysia. Contrary to the U.S. experience, then, AA (or preferential selection) in both India and Malaysia has been implemented to help members of the majority population. The future of these policies, particularly in Malaysia, is very uncertain.
The future of AA in the United States is also very uncertain. In 1996, 54 percent of the voters in the state of California approved Proposition 209, which made it illegal to discriminate against or grant preferential treatment to anyone based on race, sex, color, ethnicity, or national origin. One of the proposition’s intentions was to prohibit the use of race as a criterion of admission by the University of California. Although the state of Washington passed a similar initiative (I-200) in 1998 and Florida has banned the use of race as a factor in college admission, the expected rush by other states to implement laws similar to California’s has not materialized.
In addition to adverse public opinion leading to an election mandate, another threat to the continuation of AA lies in the judicial system, in particular with the U.S. Supreme Court. In many of its recent cases, the Court has often used a “strict scrutiny” standard in its decisions involving the legality of preferential treatment based on race or gender. In these cases, strict scrutiny implies that preferential treatment may be used only if there is clear evidence of past discrimination and preferential treatment is necessary to remedy the past injustice. However, it has often been claimed that the strict scrutiny standard is “strict in theory, but fatal in fact,” which would imply that the continuation of AA and its use of preferential treatment based on race and/or gender may be problematic under these standards.
As a public policy, AA is often misunderstood and engenders deep-seated opinions, both for and against its continued use in education and employment. Its future in the United States depends on a number of individual-, organizational-, and societal-level factors. For individuals, it is important to ensure that their opinions toward AA are based on factual information about the policy’s intent and requirements. For organizations and public policy makers, it is important that they continue to develop and implement practices that meet the objectives of AA, namely, that women and minority group members be given the same educational opportunities as those in the majority and be employed by organizations consistent with their presence in what is increasingly becoming a globally oriented and diverse workforce.
- Age discrimination
- Civil Rights Act of 1964
- Civil Rights Act of 1991
- Diversity in organizations
- Equal Employment Opportunity Commission (EEOC)
- Racial discrimination
- Reverse discrimination
- Sex discrimination
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