affirmative action

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Steps taken to correct conditions resulting from past discrimination or from violations of a law, particularly with respect to employment.

Affirmative action refers to concrete steps that are taken not only to eliminate discrimination—whether in employment, education, or contracting—but also to attempt to redress the effects of past discrimination. The underlying motive for affirmative action is the Constitutional principle of equal opportunity, which holds that all persons have the right to equal access to self-development. In other words, persons with equal abilities should have equal opportunities.

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.

Affirmative action affects small businesses in two main ways. First, it prevents businesses with 15 or more employees from discriminating on the basis of race, color, sex, religion, national origin, and physical capability in practices relating to hiring, compensating, promoting, training, and firing employees. Second, it allows the state and federal governments to favor women-owned and minority-owned businesses when awarding contracts, and to reject bids from businesses that do not make good faith efforts to include minority-owned businesses among their subcontractors.

The interpretation and implementation of affirmative action has been contested since its origins in the 1960s. A central issue of contention was 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 affirmative action 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. Though affirmative action programs came under heavy attack during the Reagan and Bush administrations, the principles of affirmative action were reaffirmed by the Civil Rights Act of 1991. But in 1997, California's Proposition 209 banned affirmative action in that state. The resulting legal battles, which were expected to reach the U.S. Supreme Court, seemed likely to have wide-reaching effects on affirmative action.

History of Affirmative Action

Affirmative action has its roots in the 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." The act's sponsors, Senators Joseph Clark and Clifford Case, emphasized this non-preferential interpretation of affirmative action when 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."

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 EEOC 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 and 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.

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 IQ 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 EEOC was strengthened by the Equal Employment Opportunity Act of 1972, which enabled the Commission to file class action suits. Under the Carter administration, the Uniform Guidelines on Employee Selection established the "four-fifths rule." This rule was significant in that it provided 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 a 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.

The tide favoring affirmative action began to turn in the 1980s during the Reagan and Bush administrations. In his 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 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 Companyv. 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.

Affirmative Action in the 1990s

In an effort to fight the dramatic rollback of affirmative action, Congress passed the Civil Rights Act of 1991. 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 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.

In 1994, the Federal Communications Commission (FCC) initiated one of the largest affirmative action programs ever. The FCC voted unanimously to set aside 1,000 of 2,000 new radio licenses for small businesses, women, and minorities. These licenses are for businesses serving the rapidly growing number of users of pocket-size telephones, fax machines, pagers, and hand-held computers. Small companies owned by women or minorities could receive up to a 60 percent discount on the cost of these licenses, which federal officials estimated have a total market value of $10 billion. One of the concerns expressed about the FCC ruling is that it will enable the rise of companies that are only nominally headed by women or minorities. This could occur as a result of the acquisition provisions of the ruling, which allow up to 75 percent of the equity and 49.9 percent of the voting stock of a small firm to be acquired by a larger firm, and yet the small firm still qualifies for licensing discounts.

Despite such efforts, the mid-1990s saw affirmative action programs continue to be rolled back by the Republican-controlled U.S. Congress, as well as by state legislatures and court decisions. Critics charged that affirmative action was a form of "reverse discrimination," meaning that by favoring minorities and women it discriminated against white males. In addition, they argued that affirmative action sometimes prevented companies from hiring the best available worker, and in so doing caused resentment toward minority workers on the job.

In 1996, California voters passed Proposition 209, which banned preferential treatment on the basis of gender or race in public employment, education, and contracting in the state. In effect, the measure eliminated affirmative action programs in California, except as necessary to comply with federal law. Although civil rights groups quickly blocked the measure with a court injunction, it took effect in August 1997 when the injunction was overturned on appeal. It was widely believed that if the U.S. Supreme Court upheld Proposition 209, many states would follow California's lead and make dramatic changes to their affirmative action programs.

Further Reading:

Boston, Thomas D. Affirmative Action and Black Entrepreneurship. Routledge, 1999.

Chung, Kim-Sau. "Role Models and Arguments for Affirmative Action." American Economic Review. June 2000.

Conrad, Paula J., and Robert B. Maddox. Guide to Affirmative Action. Crisp, 1997.

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

Koretz, Gene. "Does Hiring Minorities Hurt? Affirmative Action and Prosperity." Business Week. September 14, 1998.

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

Nye, David. "Affirmative Action and the Stigma of Incompetence." Academy of Management Executive. February 1998.

Rundles, Jeff. "Affirm Affirmative Action." Colorado Business Magazine. April 1998.

Stutz, Jonathan, and Randy Massengale. "Measuring Diversity Initiatives." HR Magazine. December 1997.

See also: Racial Discrimination

"The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin," declared Executive Order 11246 of September 24, 1965. "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. [A few years later a fifth category was added: sex.] Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause."

That was the beginning of affirmative action as we know it today. The term had been used in legal contexts to refer to action taken to uphold a corporate policy of fair labor practice as early as 1935, and statements similar to Executive Order 11246 had been issued since the early 1960s, but it was this declaration from President Lyndon Johnson that made affirmative action a national policy. It was different from mere nondiscrimination, as the director of the U.S. Office of Civil Rights explained in 1973: "The premise of the Affirmative Action concept...is that systematic discrimination in employment has existed, and unless positive action is taken, a benign neutrality today will only preserve yesterday's conditions and project them into the future."

Thirty years later, the policy of affirmative action in government and business was still in effect, with evident results in greater employment of minorities and women. It has been repeatedly tested in the courts, with varying outcomes. Exactly what measures affirmative action requires, and whether it should continue as a policy, are as much a matter of debate now as ever before.

Is a term of general application referring to government policies that directly or indirectly award jobs, admission to universities and professional schools, and other social goods and resources to individuals on the basis of membership in designated protected groups in order to compensate those groups for past discrimination caused by society as a whole. For political as well as prudential reasons reflecting racial sensitivities, public justification of affirmative action has tended to describe it as a logical extension of equality of opportunity for individuals. In fact, affirmative action embodies ideas that are philosophically antithetical to the principle of equal protection of the laws that is the basis of equality of opportunity. The essential difference is that affirmative action policies are designed to benefit persons on the basis of membership in a group, rather than according to individual qualifications and experience. Affirmative action focuses on the results of the procedures used by public and private organizations measured with respect to racial balance rather than on the existence of procedures that assure equal treatment of individuals irrespective of race, ethnicity, or sex. It can therefore be described as a civil rights policy premised on the concept of group rather than individual rights, which seeks equality of result rather than equality of opportunity.

As a general description of civil rights policy, affirmative action comprehends such matters as school desegregation, voting rights, housing sales and rentals, university admissions, the activities of federally funded agencies, and public and private employment. In each of these areas, there have been judicial decisions asserting the principles of group rights and equality of result that define affirmative action. The historical development and rationale of the policy are best illustrated, however, in employment discrimination law. Before the adoption of the Civil Rights Act of 1964, employers were permitted to select employees according to race or any other consideration, unlike the situation in voting or public education where racial discrimination was arguably unconstitutional. Accordingly, affirmative action in employment involved declaring practices that were lawful when they occurred unlawful, in order to justify awarding economic benefits to members of groups that were seen as victims of societal discrimination.

Affirmative action in employment originated in the 1960s in the policies of administrative agencies enforcing Title VII of the Civil Rights Act and Executive Orders Nos. 10 925 and 11 246 regulating federal contractors. In the 1970s the Supreme Court played a major role in rationalizing and legitimating the new race‐conscious approach to civil rights. In general, the Court proceeded on the theory that racial discrimination was by definition class discrimination and was essentially the same phenomenon regardless of where or in what form it appeared. The Court assumed that measures used in school desegregation and voting rights cases to remedy the effects of past discrimination, which took account of race and insisted on specific degrees of racial balance, could be applied in employment despite the substantially different nature of the activities involved. In the 1980s, the Supreme Court decisively protected and legalized affirmative action preferences in employment against the attempt of the executive branch to reorient civil rights policy in the direction of impartial individual rights and equality of opportunity.

Affirmative action challenges the traditional liberal principle that individuals have rights in respect of which they are entitled to be protected equally without regard to race or other irrelevant personal characteristics. The guarantee of these rights where government acts upon individuals establishes equality before the law (the principal meaning of equality of opportunity). To deny an individual his or her rights or treat the individual differently because of race is to discriminate. In contrast to this view, which may be referred to as the disparate treatment theory of discrimination, affirmative action postulates the disparate impact theory of discrimination. This theory asserts that discrimination is a statistical racial disparity resulting from employment practices or other social institutional activity that can not be justified as essential or necessary to business enterprise or the activity in question. According to this view, unlawful discrimination is not an intentional denial of rights motivated by racial prejudice. It is the social effects of legitimate social and economic practices measured by a standard of racial inclusiveness or proportional representation.

The disparate impact concept of discrimination was initially employed in school desegregation and voting rights cases, where courts held that racially neutral policies were unlawful because they had the effect of excluding African‐Americans. In Gaston County v. United States (1969), for example, the Supreme Court decided that a racially neutral literacy test was discriminatory on the ground that past school segregation denied African‐Americans equal educational opportunity, thereby preventing them from developing their intellectual ability in a way that would enable them to pass the test. In employment affirmative action based on the disparate impact theory was anticipated in seniority desegregation cases, in which courts held that racially integrated departmental classifications continued the effects of past (lawful) discrimination and were hence unlawful under Title VII.

In the landmark decision in Griggs v. Duke Power Co. (1971), the Supreme Court adopted the disparate impact concept of discrimination as the theoretical framework for enforcing Title VII. The Court held unanimously that an aptitude test and high school graduation requirement used by a company to select employees were unlawful because they had a disparate racial impact. The company had practiced racial discrimination before the enactment of Title VII, and its introduction of testing as a selection device at the time the act went into effect might have been judged intentionally discriminatory against African‐Americans. The Court did not find intentional discrimination, however. Declaring that Title VII was directed at the consequences of employment practices and that Congress intended that the posture and condition of the job seeker be taken into account, Chief Justice Warren Burger said practices that operated to exclude African‐Americans were illegal unless shown to be related to job performance, or justified by “business necessity.”

Griggs was broadly applied by the lower courts to strike down employment practices shown to have a disparate racial impact. Affirmed in Albemarle Paper Co. v. Moody (1975), the disparate impact theory of Title VII enforcement provided a strong incentive for private and public employers, who were brought under Title VII coverage in 1972, to engage in race‐conscious hiring to avoid discrimination charges based on statistics of racial imbalance. Concurrently, federal executive agencies, acting under regulations of the Office of Federal Contract Compliance, required employers to submit written affirmative action plans specifying goals and timetables to correct “underutilization” of minority groups and women.

Most large employers, who were covered by both Title VII and the contract compliance program, responded as expected by engaging in preferential practices. As affirmative action plans were put into effect, white male employees began to file discrimination suits charging unlawful practices under the Civil Rights Act. In the late 1970s three reverse discrimination cases in the Supreme Court challenged the emerging structure of affirmative action under the disparate impact theory.

In Regents of the University of California v. Bakke (1978), the Supreme Court considered a medical school affirmative action plan that assigned sixteen of one hundred places in its entering class to members of minority groups. Bakke, whose qualifications were superior to those of most of the minority admittees, claimed that the plan violated his statutory and constitutional right to equal protection of the laws. In an artfully contrived compromise, for which Justice Lewis Powell was the sole spokesman, the Court in effect handed down two decisions. It decided, 5 to 4, that the affirmative action plan was an illegal quota that denied Bakke's right not to be discriminated against because of race. Justice Powell declared, however, that race‐conscious policies adopted as a remedy for proven discrimination, which by 1978 had assumed considerable proportions in employment, were permissible under the Civil Rights Act and the Constitution. Joining with a different group of justices to form a pro‐affirmative action majority, Powell, in what amounted to a second decision, held that race was a legitimate factor that could be considered in a state university's admission policy, on the theory that it advanced the First Amendment value of “diversity.”

Although Bakke struck down an absolute quota, it protected the evolving structure of affirmative action in higher education and in agencies subject to the nondiscrimination requirements imposed on federally funded activities under Title VI of the Civil Rights Act. In United Steelworkers of America v. Weber (1979), the Court broadened the scope of affirmative action under Title VII. It rejected a reverse discrimination claim by a white male employee against a joint labor union and employer affirmative action plan that imposed a 50 percent racial quota under contract compliance pressure and the threat of Title VII discrimination charges. For the 5‐to‐4 majority, Justice William cBrennan said the quota was a form of private and voluntary affirmative action that, although it could not be required by government officials enforcing Title VII, was permitted under the law in order to “eliminate manifest racial imbalance in traditionally segregated job categories.” Whereas in previous quota cases preferential measures were ordered by lower courts as a remedy for unlawful discrimination, the Supreme Court in Weber approved a quota without requiring a finding of illegal practices. It protected race‐conscious policies that employers and unions were forced to adopt under the disparate impact theory of discrimination and the concept of underutilization in contract compliance.

The Supreme Court further expanded affirmative action in Fullilove v. Klutznick (1980). At issue was the constitutionality of a provision in the Public Works Employment Act of 1977 requiring that 10 percent of all federal grants awarded by the Department of Commerce be given to minority business enterprises. Rejecting a white contractor's charge of discrimination, the Court decided, 6 to 3, to uphold the law as an exercise of congressional power under the Fourteenth Amendment to prohibit public contracting practices that perpetuated the effect of past discrimination. Although several justices used remedial rhetoric, the Court did not require a finding of unlawful discrimination as a predicate for racial preference. Directed against societal discrimination, the decision sanctioned broad congressional authority to legislate racial preferences that in reality rested on the principle of proportional racial representation under the disparate impact theory of discrimination.

In the 1980s the Reagan administration tried to stop the spread of affirmative action. Although enforcing Title VII under the disparate impact theory and seeking remedies for victims of unlawful practices, the Department of Justice challenged the legality of quotas whether imposed by judicial decree or adopted “voluntarily” by employers. It argued that preferential treatment for members of a minority group who were not themselves victims of discrimination, in order to redress societal discrimination against the group as a whole at the expense of innocent non‐minority individuals rather than the employer who might have discriminated, violated the non‐discrimination requirements of Title VII and exceeded the scope of judicial authority under the act. The Justice Department's litigation policy forced the Supreme Court, after years of avoiding the issue, to decide on the legality of Title VII quota remedies.

In a series of decisions in the mid‐1980s, the Supreme Court reaffirmed the legality of quotas and defined the scope of race‐conscious affirmative action. In Local 28 Sheet Metal Workers International Association v. Equal Employment Opportunity Commission (1986), the Court approved, 5 to 4, a lower court quota order that imposed a 29 percent membership goal on a union found in violation of Title VII. For the Court, Justice Brennan declared that quota or “race‐conscious class relief” was appropriate where an employer or union “has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination” (p. 445). In Local 93 International Association of Firefighters v. City of Cleveland (1986), the Court upheld a consent decree between the city and a class of minority employees that provided for promotion quotas. Justice Brennan's majority opinion viewed the consent decree as a form of voluntary affirmative action that did not infringe the rights of nonminority employees. And in United States v. Paradise (1987), the Court affirmed, 5 to 4, the constitutionality of a 50 percent promotion quota ordered as a remedy for egregious discrimination by a state police department. Describing the standards for adopting an affirmative action plan, Justice Brennan said the quota order was flexible, temporary, and fair to white employees because it merely postponed their advancement rather than dismiss them.

From its inception in the 1960s, the underlying logic of the disparate impact theory of discrimination was to induce employers to engage in preferential practices as though they were doing it voluntarily, rather than under the threat of discrimination suits based on statistical disparities. The effectiveness of the policy further required protecting employers against reverse discrimination charges when they took affirmative action, without admitting to past discrimination that would have opened them to Title VII suits by minority group individuals. In Johnson v. Santa Clara County (1987), the Supreme Court confirmed this fundamental rationale. It rejected a white male employee's claim of discrimination against a public employer's gender‐based preference under a voluntary affirmative action plan. Clarifying and going beyond Weber, the Court dispensed with the idea that affirmative action is a remedy for unlawful discrimination. For the majority, Justice Brennan said the use of race or sex as a consideration in job selection was justified by “the existence of a ‘manifest imbalance’ that reflected an underrepresentation of women ‘in traditionally segregated job categories’” (p. 617). In Johnson, the Court acknowledged that affirmative action is a prospective policy based on the idea of group rights that aims at achieving racial and gender balance, under the idea of proportional representation that is inherent in the disparate impact theory of discrimination.

While broadly approving race‐conscious measures, the Court placed some limits on affirmative action. In Firefighters Local Union No. 1794 v. Stotts (1984), the Court decided, 6 to 3, that a judicial order modifying a consent decree to protect black affirmative action hires from being laid off under a seniority agreement exceeded judicial authority under Title VII. In Wygant v. Jackson Board of Education (1986), the Court held, 5 to 4, that an affirmative action plan that protected minority employees against layoff and caused the layoff of more senior white teachers violated the equal protection clause of the Constitution. These decisions reflected the solicitude for seniority rights evident in Teamsters v. United States (1977), where the Supreme Court overruled a line of precedents conferring benefits to blacks under the present‐effects doctrine, and held that intent to discriminate must be proved in order to find a seniority system unlawful.

Having protected affirmative action against the Reagan administration's antiquota policy, the Supreme Court in 1989 appeared to shift course by modifying the evidentiary rules for proving discrimination under the disparate impact theory. Easing the burden on employers defending against discrimination charges, the Court limited the tendency toward quotas inherent in the disparate impact concept and merged the disparate impact and disparate treatment ideas in a unified theory of employment discrimination. In Ward's Cove Packing Co. v. Atonio (1989), the Court stated that in a disparate impact case the burden of proof remained on the plaintiff throughout the trial, as in a disparate treatment case. It held further that a simple statistical comparison of racial percentages between skilled and unskilled jobs was insufficient to make a prima facie case. And it said that in defending against a disparate impact charge, the employer was required to show only that its practices served legitimate business purposes, not that they were essential or indispensable.

The Court further tightened the rules of affirmative action in Richmond v. J. A. Croson Co. (1989). In a 6 to 3 decision, it struck down a city‐ordered 30 percent quota for minority contractors as an unconstitutional violation of the rights of white contractors. Applying for the first time the standard of strict scrutiny review to a benign racial classification, the Court held that the set‐aside was defective because it was not justified by a showing of past discrimination in public contracting.

In 1990, the Court continued its zig‐zag course on affirmative action by approving preferential treatment in the broadcasting industry. In Metro Broadcasting v. Federal Communications Commission, the Court declared, 5 to 4, that an FCC policy favoring minority broadcasters, which Congress through the appropriations process had required the agency to maintain, was substantially related to achieving the important governmental objective of broadcast diversity. Affirming congressional power to legislate racial preferences under the standardless appropriations power (in contrast to the more limited legislative power under the Fourteenth Amendment), the Court focused on the future benefits rather than the remedial justification of affirmative action.

Metro Broadcasting, like Johnson, reflected the tendency of supporters of affirmative action to view group rights and equality of result as principles of public policy needed to overcome societal discrimination. Despite the reservations about the disparate impact theory of discrimination expressed by the Supreme Court in Ward's Cove, as the struggle to define the meaning of equality continued in the 1990s, affirmative action remained solidly entrenched in the policies of the civil rights bureaucracy. With the passage of the Civil Rights Act of 1991, Congress overturned Ward's Cove and other recent decisions that had limited the scope of federal civil rights protections, thereby reaffirming the national commitment to the principles of affirmative action.

See also Employment Discrimination; Race and Racism.

— Herman Belz

Policy designed to correct past practices of discrimination against racial minorities, women, the disabled, and other historically disadvantaged groups. The advocates of affirmative action programmes argue that it is not sufficient to pass legislation aimed at eliminating discrimination in education, employment, and other areas of human activity. Such legislation where it was successful could help eliminate discrimination in the long run, but more drastic measures were required if progress, at an acceptable pace, was to occur in the short term.

In the United States in 1970, for instance, more blacks than ever were going into higher education, yet it remained the case that while blacks made up nearly 12 per cent of the population only 2.2 per cent of doctors and 2.8 per cent of medical students were black. Statistics such as these appeared to justify admissions procedures used in the 1970s by the medical school of the University of California at Davis. Under these arrangements 16 out of 100 places were reserved for minority students, mainly blacks, Chicanos, and Asian-Americans. Allen Bakke, a white applicant who achieved far better test scores than minority students who were admitted, was denied admission. Bakke challenged the legitimacy of this decision in the courts and eventually the matter was addressed by the United States Supreme Court.

In a confusing judgment the Court said that the use of quotas violated the Fourteenth Amendment to the Constitution and directed that Bakke should be admitted. At the same time the justices said that it was constitutionally acceptable for race to be taken into account in making admissions decisions—affirmative action, in other words, was constitutional.

Affirmative action nevertheless continues to be intensely controversial in the United States. Opponents of such policies insist that they undermine one of the most cherished values of American political culture, the commitment to equality of opportunity. Affirmative action is also condemned for standing in the way of meritocracy—a society where success in life is based on merit rather than birth, class, race, or some other spurious criterion. Critics argue further that affirmative action is ultimately destructive of the goal of eliminating discrimination—that it creates discrimination itself, a reverse discrimination where white males such as Bakke, for example, are denied opportunities for no other reason than their race and sex. (See also majority-minority districting.)

— David Mervin

Action designed to give special support to disadvantaged members of a community, for example by allowing them easier access than others enjoy to benefits such as education, jobs, or housing. This may be thought of as rectifying past injustice, or as instrumental in smoothing out historically entrenched inequalities. It is controversial since it involves what may appear to be procedural injustices of its own.

During the 1950s and 1960s, the Supreme Court struck down laws that unfairly discriminated against individuals on the basis of race. Through its decisions in cases such as Brown v. Board of Education (1954) and Heart of Atlanta Motel v. United States (1964), the Court ruled that African Americans must have “equal protection of the laws,” which the 14th Amendment says is a right available to all people in the United States. While lauding this major advance in civil rights for African Americans, many civil rights leaders said it was not sufficient to overcome the negative effects of more than two centuries of racial discrimination in the United States. So, during the 1970s and 1980s, leaders of civil rights organizations, such as the National Association for the Advancement of Colored People (NAACP) and the National Organization of Women (NOW), proposed programs designed to go beyond mere equality of opportunity to provide limited kinds of preferential treatment for victims of long-term racial or gender-based discrimination. These programs are called affirmative action because they involve plans designed, through specific actions, to bring about desired outcomes, such as increased job opportunities, job promotions, and admissions to colleges and universities.

Affirmative action plans, as conceived by civil rights leaders, have the following characteristics. First, they may be sponsored or instituted either by government agencies and public educational institutions or by private organizations, such as businesses, labor unions, vocational training schools, or private colleges.

Second, affirmative action plans take into account such personal factors as race, ethnicity, or gender when individuals are under consideration for employment in a job, promotion to a better job, or admission to a school or college. However, individuals must not receive education or employment benefits solely on the basis of such factors as race, ethnicity, or gender; rather, these personal factors will determine who receives or does not receive certain opportunities only when minority candidates are otherwise well qualified for the jobs, educational programs, and so forth that they seek to attain.

Third, affirmative action programs are based clearly on the educational or economic need of individuals resulting from unfair treatment in the past of racial, ethnic, or gender groups to which these people belong.

Fourth, affirmative action plans are supposed to be temporary remedies, not permanent programs.

Supporters of affirmative action plans have pointed out that most members of certain minority groups, such as African Americans, lag far behind most white Americans in income, educational attainment, job advancement, and general living standards. They claim that these differences are the result of long-term racial discrimination, rooted in the pre-Civil War institution of slavery. Further, they argue that affirmative action programs, whether required by the government or voluntarily undertaken by private employers and schools, are the best means to overcome the persistent negative consequences of past discrimination against minorities, especially African Americans.

Affirmative action programs have been widely established in education and economic institutions of the United States. These programs have raised a fundamental constitutional question. Does the 14th Amendment's guarantee of “equal protection of the laws” permit certain kinds of preferential treatment of certain categories of individuals, such as African Americans or women, in order to remedy the negative consequences of long-term discrimination against them?

The Supreme Court has upheld some affirmative action practices while striking down extreme versions of this concept. In Regents of the University of California v. Bakke (1978), for example, the Court ruled that a university could take into account race and ethnicity when making decisions about the admission of students. However, the Court ruled that an affirmative action plan based on rigid racial quotas to boost admission of minority students to a university was unconstitutional. In United Steelworkers of America v. Weber (1979),the Court permitted an employer's voluntarily imposed and temporary affirmative action program. That program would encourage unskilled black workers to obtain training that would lead to better, more skilled jobs, in which black Americans historically have been underrepre-sented. Once again, however, the Court rejected rigid, race-based quotas in hiring and job advancement.

In United States v. Paradise (1987) the Court upheld a temporary and “narrowly tailored” quota system to bring about job promotion for black state troopers in Alabama. The state's affirmative action plan imposed a “one black for one white” promotion quota. This was justified, the Court said, by the “long and shameful record of delay and resistance” to employment opportunities for black Americans in the Alabama state police.

In 1987, in Johnson v. Transportation Agency of Santa Clara County, the Court endorsed a carefully crafted, temporary, and voluntary affirmative action plan to boost job promotion opportunities for women. The Court held it was permissible to take into account a woman's gender as a positive factor in promotion to a higher-ranking position because women had been systematically denied access to such positions in the past.

In 1995, the Court ruled in Adarand Constructors, Inc. v. Pena that all public programs that give preferences to minorities should be subjected to the strictest judicial scrutiny. Race-based affirmative action programs would be upheld, the Court declared, only if they were narrowly designed to apply to individuals victimized by past acts of racial discrimination. Thus, the Court emphasized that equal protection of the laws is a right guaranteed by the Constitution to every individual.

In 1996, the Supreme Court let stand a decision of the 5th Circuit Court of Appeals against an affirmative action policy of the University of Texas Law School. The Court of Appeals struck down a policy that allowed admissions officers to consider racial identity as a a factor in making decisions about which students to admit to the law school. The policy's purpose was to increase significantly the number of law school students belonging to racial minority groups. In its decision to ban this policy, the Court of Appeals contradicted the Supreme Court's 1978 Bakke decision, in which the Court held that colleges or universities could consider race in their admissions policies as long as they did not establish rigid race-based quotas.

In a brief statement about its refusal to hear this University of Texas Law School case, the Court said that the case did not offer a favorable opportunity to decide the issue. Because the University of Texas had abolished the policy at issue in the case, Justice Ruth Bader Ginsburg explained that “we must await a final judgment on a program genuinely in controversy before addressing the important questions raised in this petition.”

Due to a last-minute settlement, the Court did not hear an affirmative action case during the 1997–98 term. In 1997 the Court had declined to hear a challenge to a California law banning race- or sex-based preferences in school admissions, public employment, and government contracts. The Court let stand a decision by the Ninth Circuit that the statute at issue, passed by voters in a referendum on Proposition 209, was not unconstitutional. Affirmative action, however, remains a controversial political and legal issue.

See also Brown v. Board of Education; Civil rights; Equality under the Constitution; Heart of Atlanta Motel v. United States; Johnson v. Transportation Agency of Santa Clara County; National Association for the Advancement of Colored People (NAACP); Regents of the University of California v. Bakke; United Steelworkers of America v. Weber

Sources

• Michel Rosenfeld, Affirmative Action and Justice (New Haven: Yale University Press, 1991).
• Bernard Schwartz, Behind Bakke: Affirmative Action and the Supreme Court (New York: New York University Press, 1988).
• Girardeau A. Spann, The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2000)

Affirmative Action is the network of law and public policy developed in the post–World War II era to allocate resources such as jobs, educational opportunities, procurement and construction contracts, and voting strength to African Americans and, beginning in the late 1960s, to women and other minorities. The purpose of affirmative action, to remedy the underrepresentation of women and minorities in workplaces, business ownership, and educational institutions, has been articulated through a variety of formal and informal approaches, including presidential executive orders, administrative guidelines, judicial decisions, and personnel practices, that apply to the nation's public and private institutions.

Affirmative action had precedents in racial and labor policies that sought to compensate for past injustices, such as the Reconstruction-era plans to redistribute former slaveholders' lands to the freedmen. The National Labor Relations Act (1935) required employers to "take affirmative action" to reinstate employees fired for union activity. In 1941, President Franklin Roosevelt issued Executive Order 8802, prohibiting racial discrimination in war-related industries. He drew upon the notion of affirmative action by bringing the power of the federal government to bear on war-related industries that had excluded African Americans in the past. President Harry Truman broadened Roosevelt's executive order to require that any company that was a government contractor in peacetime formally agree not to discriminate on the basis of race, creed, color, or national origin. While these gestures were not compensatory, their major thrust mandated the equitable treatment of minorities by bringing them into formerly segregated fields of employment.

For the next two decades, civil rights activists and their congressional allies attempted to pass stronger and more comprehensive laws to diminish employment discrimination. Local, state, and federal antidiscrimination statutes enacted during the late 1940s and the 1950s did little to rectify discriminatory employment patterns because they relied upon individual complainants and exhaustive investigations rather than proactive employment policies. In 1961, President John F. Kennedy issued Executive Order 10925, which reiterated features of earlier executive orders requiring contractors not to discriminate. This order explicitly directed contractors to take "affirmative action to ensure that applicants are employed without regard to race." The affirmative action clause provoked scant comment upon its release. While employers expressed certainty about what it meant to discriminate, they were pensive and skeptical about what affirmative action would require. To the President's Committee on Equal Employment Opportunity, which enforced the executive order, affirmative action meant that nondiscrimination was not enough to satisfy the contract's obligations. Government contractors now were required to recruit and promote minority employees, although hiring goals for minorities remained vague. Activists from the National Association for the Advancement of Colored People and other civil rights groups believed these statutes were inadequate, and as early as the late 1940s, they pressed for a stronger federal antidiscrimination law.

The passage of the equal employment section (Title VII) of the Civil Rights Act of 1964 heralded a new phase in the fight against discrimination by expanding the concept of employment discrimination and its remedy, affirmative action. Title VII deemed it unlawful for an employer to refuse to hire an individual because of his or her race, color, religion, sex, or national origin. No section of the legislation explicitly mentioned affirmative action, but political and judicial actions eventually used this law to rationalize vigorous remedies for discrimination and exclusion, such as preferential treatment and racial proportionalism in hiring, promoting, voting, and admitting to college. Congressional opponents of Title VII were concerned that the legislation would force an employer to hire on the basis of race rather than merit, but they compromised with the inclusion of provisos intended to prevent quotas and racial proportionalism. The act established the Equal Employment Opportunity Commission (EEOC) to investigate and conciliate complaints of discrimination and to recommend cases for the Justice Department to bring before federal courts. The Equal Employment Opportunity Act of 1972 extended Title VII coverage to state and local government employees and to private workplaces with as few as fifteen employees. In this act Congress also authorized the EEOC to sue in federal district court.

In the 1960s, federal contracting guidelines articulated affirmative action to its fullest in large part because President Lyndon Johnson in 1965 issued Executive Order 11246, which created the Office of Federal Contract Compliance (OFCC). Congressional proscriptions did not bind the OFCC, unlike the EEOC, and as a result, the OFCC could require any variety of methods to increase the representation of minorities in the workplace. The construction industry, which had low rates of nonwhite workers, was one of the first to use the new tools of affirmative action under this executive order. The OFCC concentrated on results by setting goals and timetables to achieve a more equitable racial balance in workplaces.

After 1970, the national discussion of affirmative action turned to the judiciary, and the U.S. Supreme Court attempted to clarify the possibilities and limitations for af-firmative action delineated in the Constitution. In Griggs v. Duke Power Company (1971), the Court examined concepts of merit as well as selection and promotion procedures in light of the results they produced, thereby destroying the employer's defense that discriminatory procedures stemmed from "business necessity." In its decision, the Court ruled that the company's intelligence test had no bearing on workers' performance and adversely affected the promotion possibilities of nonwhites. Griggs is notable because the Court upheld the notion that the underrepresentation of minorities in a given workforce might serve as statistical proof that a company discriminated. In the wake of this decision, the lower courts began to require affirmative action, or preferences for minority employees for promotion and transfer, as necessary to remedy past discrimination and to achieve equity in the workplace.

The Supreme Court's most comprehensive review of affirmative action affected employment, and, as a result, lower courts, government agencies, private businesses, and labor unions turned to voluntary and involuntary race-and gender-conscious remedies to comply with Title VII. These affirmative remedies, which modify hiring qualifications, alter seniority systems, institute programs to train and upgrade minority employees, and set aside percentages of business contracts, came to define "affirmative action." The Court gave qualified support to early affirmative action programs with Fullilove v. Klutznick (1980) and United Steel workers of America v. Weber (1979), in which the Court upheld minority set-asides in contracting and the constitutionality of voluntary affirmative action plans. After the late 1980s, however, the Supreme Court became less approving of racially conscious measures that promoted racial balance or diversity in awarding government contracts or in decisions regarding tenure and layoffs.

Title VII also prohibited discrimination against women, but this provision was not fully articulated until the 1970s, when federal agencies began to include hiring goals for women. In 1973, a landmark consent decree signed by AT&T, the EEOC, and the Departments of Justice and Labor banned discriminatory practices against women and minorities and provided for employee upgrades and millions of dollars in salary increases. In Johnson v. Transportation Agency of Santa Clara County (1987), the Supreme Court made it clear that affirmative action plans for hiring and promoting underrepresented workers should take into account gender as well as race. Female employees subject to intentional discrimination and sexual harassment received some of the largest settlements as a result of the 1991 Civil Rights Act, which allowed plaintiffs who were victims of racial or sexual discrimination to recover compensatory and punitive damages.

The Supreme Court also gave considerable attention to affirmative action in higher education. Bakke v. Regents of the University of California (1978), one of the Court's best-known affirmative action decisions, both limited and preserved the use of racial set-asides in admissions. A judicial majority agreed that racial preferences were constitutionally permissible to promote a diverse student body but that racial classifications should be subjected to greater scrutiny. The Court equivocated on the diversity justification by allowing a lower court's decision to stand in Hopwood v. Texas (1996), in which a federal district court ruled that affirmative action is permissible solely to remedy past discrimination.

The Supreme Court's increasing conservatism regarding affirmative action mirrored a growing popular rejection of race-conscious remedies, such as preferential treatment, set-asides, and quotas. The Court further scrutinized the race-based assumptions of federal contracting programs just as the administration of President Bill Clinton announced its "mend it, don't end it" stance on affirmative action policy. Throughout the 1990s, affirmative action persisted as a controversial flashpoint. Basic definitions of the policy and the necessity for racial classifications remained unresolved, and statewide and municipal referenda tested the popularity of preferential treatment. California voters approved a referendum in November 1996 to end the state's affirmative action programs, and voters in several states of the South and the West organized ballot initiatives. While government programs and educational institutions were most vulnerable to court interpretation and voter referenda, affirmative action was embraced most fully by some private corporations in the wake of discrimination settlements that called for the payment of back wages, punitive damages, and the development of programs to hire and upgrade women and minority employees.

Bibliography

Graham, Hugh Davis. The Civil Rights Era: Origins and Development of National Policy 1960–1972. New York: Oxford University Press, 1990.

Moreno, Paul D. From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933–1972. Baton Rouge: Louisiana State University Press, 1997.

Skrentny, John David. The Ironies of Affirmative Action: Politics, Culture, and Justice in America. Chicago: University of Chicago Press, 1996.

Spann, Girardeau A. The Law of Affirmative Action: Twenty-five Years of Supreme Court Decisions on Race and Remedies. New York: New York University Press, 2000.

—Stacy Kinlock Sewell

Employment programs required by federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members; i.e. positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination; commonly based on population percentages of minority groups in a particular area. Factors considered are race, color, sex, creed, and age.

The idea of affirmative action was foreshadowed as early as the Reconstruction era, which followed the U.S. Civil War. When that conflict had ended, the former slave population throughout the South owned virtually nothing with which they could make a living. To help these newly emancipated citizens sustain a minimal economic base, the victorious General William T. Sherman proposed to divide up the land and goods from the sizable plantations of southeastern Georgia that were under his command and grant to each family of color "forty acres and a mule." The proposal ran into powerful political opposition, however, and it was never widely adopted.

Nearly a century later, this idea of assisting whole classes of individuals to gain access to the goods of U.S. life reemerged in U.S. law and society through a series of court decisions and political initiatives interpreting the civil rights guarantees within the Equal Protection Clause of the Fourteenth Amendment. These decisions and initiatives came to be known as affirmative action.

The term itself refers to both mandatory and voluntary programs intended to affirm the civil rights of designated classes of individuals by taking positive action to protect them from, in the words of Justice William J. Brennan, Jr., "the lingering effects of pervasive discrimination" (Local 28 of the Sheet Metal Workers' Int'l Assoc. v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 [1986]). A law school, for example, might voluntarily take affirmative action to find and admit qualified students of color. An employer might recruit qualified women where only men have worked before, such as to operate heavy equipment.

Affirmative action developed during the four decades following the decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). In Brown, the Supreme Court held that public school segregation of children by race denied minority children equal educational opportunities, rejecting the doctrine of "separate but equal" in the public education context. During the 1960s and early 1970s, the civil rights movement as well as the Vietnam War inspired members of minorities and women to advocate collectively for increased equality and opportunity within U.S. society. These groups appealed for equal rights under the Fourteenth Amendment, and they sought opportunity in the public arenas of education and employment. In many ways, they were successful. As affirmative action grew, however, it drew increasing criticism, often from men and whites, who opposed what they viewed as "reverse discrimination."

While the Brown decision declared segregated schools unlawful, it did not create affirmative action to remedy discriminatory practices. A decade after Brown, little had changed to integrate the nation's schools. The Court acted ahead of business executives and legislatures when it mandated, in Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), that positive actions must be taken to integrate schools. There followed the adoption of an array of devices such as redis- tricting, majority-to-minority transfers, school pairings, magnet schools, busing, new construction, and abandonment of all-black schools.

The first major legal setback for voluntary affirmation action was Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which the Supreme Court struck down an admission plan at the University of California, Davis, medical school. The plan, which had set aside sixteen places for minority applicants, was challenged by white applicant Allan Bakke, who had been refused admission even though he had higher test scores than some of the minority applicants. The Court held that by setting aside a specific number, or quota, of places by race, the school had violated Bakke's civil rights. By denying the "set-aside" practice of an affirmative action plan, the decision seemed to threaten the principle underlying affirmative action as well.

The following year, however, the Court found in United Steelworkers v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979), that the voluntary plan of Kaiser Aluminum Company to promote some of its black workers into a special training program ahead of more senior white workers did not violate the latter's civil rights when it did not involve quotas. The Court also found in Local 28 of Sheet Metal Workers' International Ass'n v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986), that rights were not being violated by a court-ordered membership goal of 29.23 percent minorities. Writing for the plurality, Justice Brennan said title VII of the Civil Rights Act of 1964 does not prohibit courts from ordering "affirmative race-conscious relief as a remedy for past discrimination" in appropriate circumstances. Such circumstances might include "where an employer or labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effect of pervasive discrimination."

The Court later found, in City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), that the Minority Business Utilization Plan of Richmond, Virginia, violated the rights of private contractors. The plan, which required 30 percent of all subcontracts to be awarded to minority-owned companies, was struck down because this municipality had failed to show compelling state interest for such a measure. The Court applied the compelling interest test after holding that race-based action by state and local government was subject to strict scrutiny. The Court extended this to the federal government in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995).

In Johnson v. Transportation Agency, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987), the Court ruled that a county agency had not violated title VII of the Civil Rights Act when, as part of an affirmative action plan, it took a female employee's gender into account in promoting her ahead of a male employee with a slightly higher test score. The Court held that a "manifest imbalance" existed in this workforce because of an underrepresentation of women, and that the employer had acted properly in using a "moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women."

At issue in affirmative action cases is whether the Equal Protection Clause of the Fourteenth Amendment can be employed to advance the welfare of one class of individuals for compelling social reasons even when that advancement may infringe in some way upon the life or liberty of another. The continuing existence of affirmative action laws and programs suggests that so far, the Supreme Court's answer has been yes.

Affirmative action plans may be undertaken voluntarily, as in the case of a private school's admissions goals; imposed by the courts to protect civil rights; or required by law to qualify for federal contracts. Plans required to qualify for federal contracts are enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency of the U.S. Department of Labor. The OFCCP defines its mission with its critics in mind: "Affirmative action is not preferential treatment. Nor does it mean that unqualified persons should be hired or promoted over other people. What affirmative action does mean is that positive steps must be taken to provide equal employment opportunity" (EEOC, U.S. Department of Labor, Pub. No. 2850, Making EEO and Affirmative Action Work 8 [1993]). One ranking OFCCP administrator defended the program even more sharply by saying, "Affirmative action is not about goals and has nothing to do with preferences. It is about inclusion versus exclusion: people who have been excluded from participation in the process for years are now to be included."

Affirmation action plans are subject to mandatory compliance procedures, which may include monitoring by review, conciliation of disputes, exclusion from federal contract work, or even suit by the Justice Department.

Criticism of affirmative action has taken many forms, and calls to abolish or significantly constrain it have gained momentum. Although civil rights and women's organizations, among others, have risen to defend affirmative action, many observers believe that the focus of the policy will change, to designate economic class rather than race or gender as the primary eligibility standard.

See: Civil Rights; Civil Rights Acts; Discrimination; Equal Employment Opportunity Commission; Equal Protection; Fourteenth Amendment; Seniority; Sex Discrimination.

A term referring to various government policies that aim to increase the proportion of African-Americans, women, and other minorities in jobs and educational institutions historically dominated by white men. The policies usually require employers and institutions to set goals for hiring or admitting minorities.

This article or section has multiple issues. Please help improve the article or discuss these issues on the talk page. It is in need of attention from an expert on the subject. Tagged since May 2008. An editor has expressed concern that it is unbalanced. Tagged since February 2009.

The term affirmative action refers to policies that take race, ethnicity, or sex into consideration in an attempt to promote equal opportunity or increase ethnic or other forms of diversity. The focus of such policies ranges from employment and education to public contracting and health programs. The impetus towards affirmative action is twofold: to maximize diversity in all levels of society, along with its presumed benefits, and to redress perceived disadvantages due to overt, institutional, or involuntary discrimination. Opponents argue that it promotes reverse discrimination.

Affirmative action is also known as positive action or positive discrimination in the UK, reservation in India, and employment equity in Canada.

Contents 1 Support 2 Opposition 3 International policies 4 Types 5 Implementation worldwide 5.1 The Americas 5.2 South Asia 5.3 East Asia 5.4 South East Asia and Oceania 5.5 Europe 5.6 South Africa 6 Other types of affirmative action 7 See also 8 Notes and references 9 External links

Support

The examples and perspective in this section deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page.

The principle of affirmative action stipulates – to treat unequals as equals is to perpetuate inequality.^[1] Affirmative action is seen by its proponents as a foundational principle of democratic societies such as India, that seek to redress imbalances, due to disproportionate representation of underprivileged sections of society in governmental, educational and industrial institutions. Proponents of affirmative action argue, that the disproportionate representations, results from covert, institutionalized and involuntary forms of discrimination that permeates the fabric of society; particularly in societies that have had a long history of racial, ethnic, or sex based discrimination. Such acts of discrimination may take many forms. Some are overt such as stereotypes (e.g. women are only fit to be secretaries and housewives, and blacks are great entertainers and sportsmen—modern day gladiators but little else). Others are covert, such as "old boys" clubs, that tend to favor racially akin new members.

Most Americans support affirmative action for women; with minorities, it is more split.^[2] Men are only slightly more likely to support affirmative action for women; though a majority of both do.^[2] However, a slight majority of Americans do believe that affirmative action goes beyond ensuring access and goes into the realm of preferential treatment.^[2]

In Ten Myths About Affirmative Action (2003) by Scott Plous, it is argued that critics of affirmative action often rely on misconceptions.^[3]

• One can not hope to create a color blind society by practicing color blind policies since such policies put racial minorities at a disadvantage. For instance color blind seniority systems tend to favor white workers against job layoffs, since senior employees tend to be white.^[4] The point being existing imbalances in representation tend to perpetuate themselves in the absence of affirmative action.

• While a few studies claimed that affirmative action undermined the self-esteem of women and minorities,^[5][6] more recent studies and public opinion polls have indicated that such is not that case^[7][8][9]

• The claim that one can not redress one form of discrimination by introducing another is a play on words that uses the same word "discrimination" to refer to two different things. Racial, ethnic or sex based discrimination is often based on unfounded, often irrational and deeply ingrained prejudices. Affirmative action is a response to a statistically observed inequity in representation, reproducibly demonstrated by social scientists in many societies with a history of discrimination.^[10][11]

• Some opponents of affirmation action believe the practice implies the preferential selection of unqualified candidates over qualified candidates. But in fact, most supporters of affirmative action oppose such preferential selection and instead prefer preferential selection among equal or comparable candidates.

Opposition

The examples and perspective in this section deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page.

Some opponents^[who?] say affirmative action devalues the accomplishments of people who are chosen because of the social group to which they belong rather than their qualifications.^[12] Opponents also contend that affirmative action devalues the accomplishments of all those who belong to groups it is intended to help, therefore making affirmative action counterproductive.^[12]

Some people, such as American Republican Ward Connerly, also feel that affirmative action is discrimination in itself since it judges people by their ethnicity.^{[citation needed]}

Opponents,^[13] who sometimes call affirmative action "reverse discrimination," further claim that affirmative action has undesirable side-effects in addition to failing to achieve its goals. They argue that it hinders reconciliation, replaces old wrongs with new wrongs, undermines the achievements of minorities, and encourages individuals to identify themselves as disadvantaged, even if they are not. It may increase racial tension and benefit the more privileged people within minority groups at the expense of the least fortunate within majority groups (such as lower-class whites).^[14]

Conservative commentator Dr. Thomas Sowell identified some negative results of race-based affirmative action in his book, Affirmative Action Around the World: An Empirical Study.^[15] Sowell writes that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups (i.e., primary beneficiaries of affirmative action) to take advantage of group preference policies; that they tend to benefit primarily the most fortunate among the preferred group (e.g., upper and middle class blacks), often to the detriment of the least fortunate among the non-preferred groups (e.g., poor whites or Asians); that they reduce the incentives of both the preferred and non-preferred to perform at their best — the former because doing so is unnecessary and the latter because it can prove futile — thereby resulting in net losses for society as a whole; and that they increase animosity toward preferred groups.

International policies

An in-depth examination of the legal status of affirmative action, as well as the different kinds of programs that exist and their pros and cons, can be found in a paper written for the United Nations Sub-Commission on the Promotion and Protection of Human Rights by one of its members, Marc Bossuyt.^[16]

The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of countries that have ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." The United Nations Human Rights Committee states, "the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant."^[17]

Types

Affirmative action is generally established for:

• racial minorities.
• ethnic minorities.
• underprivileged castes (such as in India).
• women.
• the physically disabled.
• those who served in the military.

Implementation worldwide

In some countries which have laws on racial equality, affirmative action is rendered illegal because it doesn't treat all races equally. This approach of equal treatment is sometimes described as being "color blind", in hopes that it is effective against discrimination without engaging in reverse discrimination.

In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action" or "positive discrimination".

The Americas

• United States. The intended beneficiaries of affirmative action in the United States include historically disadvantaged ethnic minorities, women, people with disabilities, and veterans. Affirmative action has been the subject of numerous court cases,^[18] and has been contested on constitutional grounds. In 2003 a Supreme Court decision concerning affirmative action in universities allowed educational institutions to consider race as a factor in admitting students, but ruled that strict point systems are unconstitutional.^[19] Conservatives say that state officials have widely disobeyed it. Alternatively, some colleges use financial criteria to attract racial groups that have typically been under represented and typically have lower living conditions. Executive Orders 11246 and 11375 prohibit federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. Some states such as California and Michigan have passed constitutional amendments banning affirmative action within their respective states.

• Brazil. Some Brazilian Universities (State and Federal) have created systems of preferred admissions (quotas) for racial minorities (blacks and native Brazilians), the poor and people with disabilities. There are already quotas of up to 20% of vacancies reserved for the disabled in the civil public services.^[20] The Democrats party, accusing the board of directors of University of Brasília of "nazism", questioned the constitutionality of the quotas the University reserves to minorities on the Supreme Federal Court.^[21]

• Canada. The equality section of the Canadian Charter of Rights and Freedoms explicitly permits affirmative action type legislation, although the Charter does not require legislation that gives preferential treatment. Subsection 2 of Section 15 states that the equality provisions do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: Women, people with disabilities, aboriginal people, and visible minorities. In most Canadian Universities, people of Aboriginal background normally have lower entrance requirements and are eligible to receive exclusive scholarships. Some provinces and territories also have affirmative action-type polices. For example, in Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status. Non-aboriginal people who were born in the NWT or have resided half of their life there are considered a P2, as well as women and disabled people.^[22]See also, Employment equity in Canada.

South Asia

• India
  Main article: Reservation in India

• Sri Lanka. In 1971 the Standardization policy of Sri Lankan universities was introduced as an affirmative action program for students from areas which had poor educational facilities due to 200 years purposeful discrimination by British colonialists. The British had practised communal favoritism towards Christians and the minority Tamil community for the entire 200 years they had controlled Sri Lanka, as part of a policy of divide and conquer.

East Asia

• People's Republic of China. "preferential policies" required some of the top positions in governments be distributed to ethnic minorities and women. Also, many universities are required by government to give preferred admissions to ethnic minorities.^[23][24]

• Japan. Admission to universities as well as all government positions (including teachers) are determined by the entrance exam, which is extremely competitive at the top level. It is illegal to include sex, ethnicity or other social background (but not nationality) in criteria; however, there are informal policies to provide employment and long term welfare (which is usually not available to general public) to Burakumin at municipality level.

South East Asia and Oceania

• Malaysia. The Malaysian New Economic Policy or NEP serves as a form of affirmative action. Malaysia is the only country in the world which provides affirmative action to the majority because in general, the Malays have lower income than the Chinese who have traditionally been involved businesses and industries.^[25] Malaysia is a multiethnic country, with Malays making up the majority of close to 52% of the population. About 30% of the population are Malaysians of Chinese descent, while Malaysians of Indian descent comprise about 8% of the population. Government policy provides preferential placement for ethnic Malays, and 95% of all new intakes for the army, hospital nurses, police, and other government institutions are Malays. As of 2004, only 7% of all government servants are ethnic Chinese, a drop from 30% in 1960. All eight of the directors of the national petroleum company, Petronas, are Malays, and only 3% of Petronas employees are Chinese. Additionally, 95% of all government contracts are awarded to ethnic Malays.^[26] (See also Bumiputra) The mean income for Malays, Chinese and Indians in 1957/58 were 134, 288 and 228 respectively. In 1967/68 it was 154, 329 and 245, and in in 1970 it was 170, 390 and 300. Mean income disparity ratio for Chinese/Malays rose from 2.1 in 1957/58 to 2.3 in 1970, whereas for Indians/Malays the disparity ratio also rose from 1.7 to 1.8 in the same period^[27] The Malays viewed Independence as restoring their proper place in their own country's socioeconomic order while the non-Malays were opposing government efforts to advance Malay political primacy and economic welfare. The rising tension and resentment of the Malays for the Chinese and vice versa culminated in the vicious riots of 13 May 1969.^[28]

• New Zealand. Individuals of Māori or other Polynesian descent are often afforded preferential access to university courses, and scholarships.^[29]

Europe

• Finland. In certain university education programs, including legal and medical education, there are quotas for Swedish-speaking applicants. The aim of the quotas is to guarantee that a sufficient number of Swedish speaking professionals are educated, thus safeguarding the linguistic rights of the Swedish-speaking Finns. The quota system has met with criticism from the Finnish speaking majority, some of whom consider the system unfair. In addition to these linguistic quotas, women may get preferential treatment in recruitment for certain public sector jobs if there is a gender imbalance in the field.

• France. No distinctions based on race, religion or sex are allowed under the 1958 French Constitution.^{[citation needed]} Since the 1980s, a French version of affirmative action based on neighborhood is in place for primary and secondary education. Some schools, in neighborhoods labeled "Prioritary Education Zones", are granted more funds than the others. Students from these schools also benefit from special policies in certain institutions (such as Sciences Po).^{[citation needed]} The French Ministry of Defense tried in 1990 to give more easily higher ranks and driving licenses to young French soldiers with North-African origins. After a strong protest by a young French lieutenant^[30] in the Ministry of Defense newspaper ("Armées d'aujourd'hui"), this driving license and rank project was canceled. After the Sarkozy election, a new attempt in favour of Arabian-French students was made but Sarkozy did not gain enough political support to change the French constitution and then there is no affirmative action based on notions such an ethnicity, race or national origin. The closest thing is that highly ranked French schools are obliged to take a certain amount of student of poor background and then the closest thing to affirmative action in France is based on the social background.^[31]

• Germany. Article 3 of the German basic law provides for equal rights of all people regardless of sex, race or social background. In recent years there has been a long public debate about whether to issue programs that would grant women a privileged access to jobs in order to fight discrimination. There are programs stating that if men and women have equal qualifications, women have to be preferred for a job. This is typical for all positions in state and university service as of 2007, typically using the phrase "We try to increase the percentage of females in this line of work"

• Norway. In all public limited companies (PCL) boards, either gender should be represented by 40%.^[32] This affects roughly 400 companies.

• Sweden. Swedish democracy, although very solicitous about minorities' rights and integration, does not allow affirmative action.

• The United Kingdom. In the UK, the term positive action is generally used, and this term is used in legislation including the proposed Equality Bill.^[33] There are strict limits on positive action, as positive discrimination is unlawful. Quotas and selective systems are for the most part not permitted.^[29][34] An exception to this is a provision made under the 1998 Good Friday Agreement which requires that the Police Service of Northern Ireland recruit equal numbers of Catholics and non-Catholics. Positive action in encouraging people from under-represented backgrounds to apply for jobs is permitted, but it is illegal to discriminate in favour of them in awarding employment.^[35] A form of positive action is used by the governing Labour Party, which uses All-women shortlists to ensure that more women are selected as election candidates. This is exempt from the ban on positive discrimination in employment under the Sex Discrimination (Election Candidates) Act 2002. The proposed Equality Bill, published in April 2009 includes provisions to allow positive action in employment in some cases.

• Republic of Macedonia. Minorities, most notably Albanians, are allocated quotas for access to state universities, as well as in civil public services.^{[citation needed]}

• Slovakia. The Constitutional Court declared in October 2005 that affirmative action i.e. "providing advantages for people of an ethnic or racial minority group" as being against its Constitution.^[36]

South Africa

Apartheid policies were aimed at advancing the lives of white South Africans. There was job reservation policy aimed at improving the lives of white South Africans. Apartheid government favoured white-owned companies and created statutory companies for white South Africans. As a result, majority of companies in South Africa are owned by white people. The aforementioned policies achieved the desired results, but in the process they marginalised and excluded black people. Black people were forcefully removed from their previous property, without compensation, and said property was given to the white minority.

When the new majority government came to power, they decided to implement an affimative action campaign to correct previous imbalances. As such, the previously disenfranchised majority and minority groups are being supported by forcing the formerly privileged white minority group to implement certain policies. These policies include quotas regarding how much of the procurement is bought from non-white companies, how much of the equity is owned by non-whites, how many employees are non-white, and what position the non-whites have.

The Employment Equity Act and the Broad Based Black Economic Empowerment Act aim to promote and achieve equality in the workplace (in South Africa termed "equity"), by not only advancing people from designated groups but also specifically dis-advancing the others. Those specifically hindered are the white minority. By legal definition, the designated groups who are to be advanced in society include all people of colour, white women, people with disabilities, and people from rural areas. The term "black economic empowerment" is somewhat of a misnomer, therefore, because the acts cover empowerment of any member of the designated groups, regardless of race. However, government’s employment legislation reserves 80% of new jobs for black people and favours black-owned companies.^[37] It is quota-based, with specific required outcomes. By a relatively complex scoring system, which allows for some flexibility in the manner in which each company meets its legal commitments, each company is required to meet minimum requirements in terms of representation by previously disadvantaged groups. The matters covered include equity ownership, representation at employee and management level (up to board of director level), procurement from black-owned businesses and social investment programs, amongst others. In 2008, the High Court in South Africa has ruled that Chinese South Africans are to be reclassified as black people. As a result of this ruling, ethnically Chinese citizens will be able to benefit from government Black Economic Empowerment (BEE) policies.^[38]

Other types of affirmative action

Given the history of discrimination against LGBT people, actions in favor of them in activities such as hiring, promotions, and college admissions have been proposed.^{[citation needed]} In many college campuses in the United States, for example, sexual orientation is a characteristic asked on college applications so that administrators can promote what they see as a diverse student body.^{[citation needed]} A 2009 Quinnipiac University survey found American voters opposed to the application of affirmative action to gay people, 65 over 27 percent. African-Americans were found to be in favor by 54 over 38 percent.^[39]

See also

Achievement gap Affirmative action in the United States Affirmative action bake sale Angry white male Bumiputra Discrimination Diversity (business) Economic discrimination Employment equity (Canada) Harrison Bergeron

Jewish quota Minority groups Minority rights Multiculturalism Legacy preferences Numerus clausus Political correctness Positive liberty

Principle-policy puzzle Race and Inequality Racism in the United States Reservation in India Reverse Discrimination Teaching for social justice White Guilt Women's rights

Notes and references

1. ^ Christophe Jaffrelot , India's Silent Revolution : The rise of lower castes in northern India, pg. 321 2003
2. ^ ^{a b c} http://www.usatoday.com/news/polls/tables/live/0623.htm
3. ^ [1] http://www.understandingprejudice.org/readroom/articles/affirm.htm
4. ^ Ezorsky, G. Racism and justice: The case for affirmative action. Ithaca, NY: Cornell University Press. 1991
5. ^ Heilman, M. E., Simon, M. C., & Repper, D. P. Intentionally favored, unintentionally harmed? Impact of sex-based preferential selection on self-perceptions and self-evaluations. Journal of Applied Psychology, 72, 62-68. 1987
6. ^ Steele, S. The content of our character: A new vision of race in America. New York: St. Martin's Press.
7. ^ Taylor. M. C. Impact of affirmative action on beneficiary groups: Evidence from the 1990 General Social Survey. Basic and Applied Social Psychology, 15, 143-178. 1994
8. ^ Roper Center for Public Opinion. Question ID: USGALLUP.950317, R31 [Electronic database]. Available from Lexis-Nexis Academic Universe Web site, http://web.lexis-nexis.com/universe 1995
9. ^ Graves, L. M., & Powell, G. N. Effects of sex-based preferential selection and discrimination on job attitudes. Human Relations, 47, 133-157. 1994
10. ^ Bowler, M. Women's earnings: An overview. Monthly Labor Review, pp. 13-21. December 1999
11. ^ Bowen, W. G., & Bok, D. The shape of the river: Long-term consequences of considering race in college and university admissions. Princeton, NJ: Princeton University Press. 1998
12. ^ ^{a b} Sher, George, "Preferential Hiring", in Tom Regan (ed.), Just Business: New Introductory Essays In Business Ethics, Philadelphia, Temple University Press, 1983, p.40.
13. ^ American Civil Rights Institute
14. ^ Cultural Whiplash: Unforeseen Consequences of America's Crusade Against Racial Discrimination / Patrick Garry (2006) ISBN 1581825692
15. ^ ISBN 0-300-10199-6, 2004
16. ^ United Nations Sub-Commission on the Promotion and Protection of Human Rights. Commission on Human Rights, Economic and Social Council, 17 June 2002
17. ^ United Nations Committee on Human Rights, General Comment 18 on Non-discrimination, Paragraph 10
18. ^ Indy fire-fighters sue city, charge bias
19. ^ Highlights of the 2002-2003 Supreme Court Term
20. ^ Plummer, Robert. "Black Brazil Seeks a Better Future." BBC News, São Paulo 25 September 2006. 16 November 2006 <http://news.bbc.co.uk/2/hi/americas/5357842.stm>.
21. ^ [2]
22. ^ GNWT - Human Resources - Affirmative Action <http://www.hr.gov.nt.ca/employment/affirmativeaction/>
23. ^ 2007 Graduate Student Admission Ordainment - Ministry of Education, PRC<http://www.moe.gov.cn/edoas/website18/30/info26630.htm>
24. ^ Ethnic and Religious Affairs Commission of Guangdong Province <http://www.mzzjw.gd.gov.cn/mzjy/ShowArticle.asp?ArticleID=541>
25. ^ http://www.nationsencyclopedia.com/economies/Asia-and-the-Pacific/Malaysia-POVERTY-AND-WEALTH.html
26. ^ Bumiputra Policy in Malaysia
27. ^ Perumal, M., 1989, 'Economic Growth and Income Inequality in Malaysia, 1957–1984', Singapore. Economic Review, Vol.34, No.2, pp.33–46.
28. ^ Income Inequality and Poverty in Malaysia by Shireen Mardziah Hashim
29. ^ ^{a b} UK Commission for Racial Equality website "Affirmative action around the world" http://www.cre.gov.uk/Default.aspx.LocID-0hgnew0l0.RefLocID-0hg01b001006009.Lang-EN.htm
30. ^ Jean-Pierre Steinhofer: "Beur ou ordinaire" in "Armee d'Ajourd'hui, 1991.
31. ^ [3]
32. ^ http://www.lovdata.no/all/tl-19970613-045-032.html#6-3
33. ^ http://www.publications.parliament.uk/pa/cm200809/cmbills/085/voli/09085i.i-ii.html
34. ^ Personneltoday.com "Is there a case for positive discrimination?" http://www.personneltoday.com/Articles/2006/01/17/33430/is-there-a-case-for-positive-discrimination.html
35. ^ http://www.equalityhumanrights.com/en/forbusinessesandorganisation/employers/pages/recruitmentandjobadvertisements.aspx
36. ^ [4]
37. ^ Simon Wood meets the people who lost most when Mandela won in South Africa
38. ^ We agree that you are black, South African court tells Chinese, The Times
39. ^ U.S. Voters Disagree 3-1 With Sotomayor On Key Case. Quinnipiac University. Published June 3, 2009.

External links

• Does the success of Barack Obama mean we no longer need affirmative action? NOW on PBS investigates
• "Affirmative action" article in the Stanford Encyclopedia of Philosophy
• Washington Post Section on Affirmative Action
• Substantive Equality, Positive Action and Roma Rights in the European Union, Report by Minority Rights Group International

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