By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This article contains content adapted from lesson material I wrote for APUS classes. It is the seventh article in an eight-part series on employment discrimination law and sound employment practices. In this article, we’ll review the advent of affirmative action and the way it changed the employment law world.
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The History of Affirmative Action
The concept of affirmative action was first established in the mid-20th century in an effort to correct a long-standing history of discrimination in social institutions. Although this article focuses on employment, affirmative action has been applied in other areas, including college student admissions, political candidacy and military recruitment.
Affirmative action is the practice of intentionally granting favor in employment decisions to individuals with certain qualities, with the aim of correcting imbalances in the proportion of different races within a workforce. The underlying philosophy is to correct for biases – subconscious or otherwise – and ensure equal opportunity for all people in all groups.
Suppose that a company operates a business in a city which is, by population, approximately 50 percent black and 50 percent white. Then, imagine that within this company’s workforce, the proportion of employees is 10 percent black and 90 percent white.
If this company adopted a policy of affirmative action, then it would actively favor black candidates in future hirings or layoffs. The intent would be to rebalance the scales of the internal workforce so that it more closely mirrors the demographics of the surrounding population.
This sounds straightforward, but this kind of practice is hardly so simple in reality. But affirmative action strategies are complex. There are myriad challenges facing a business that supports affirmative action:
- Firstly, evenly dichotomous communities just don’t exist. Hundreds of years of international and cultural emigration have resulted in most American cities being ‘melting pots’ with many different races, ethnicities, cultures, nationalities, and sexual orientations. As a result, establishing standards for balanced hiring are difficult.
- Another issue is determining precisely where one draws the lines of the “surrounding community” for the purposes of establishing a baseline of demographic proportions. Should one use the statistics of the surrounding city? Or the county? Or the state? Additionally, there are often many sources for such demographic information, and the sources rarely agree perfectly. How should an employer decide which source to use?
- Similarly, for a large, international company like General Motors, should the employer aggregate all employment data statistics across the entire company when calculating internal proportionalities? Should that be calculated by individual work location, city, region, state or nation?
- If the statistics of a company’s workforce suggest that rebalancing is needed in more than one area (such as both race and gender), which area should take priority? For example, should an employer first seek to hire more women or more Asian people, assuming there is a choice between the two options?
- What if a review of a company’s workforce suggests a need for corrective action, but there just aren’t any qualified candidates in the area who meet the criteria? For example, let’s say that an affirmative action review of a law firm suggests that it should hire more Spanish people. But if there are few, if any, Spanish people in the area with the requisite legal education or experience, what is the law firm to do?
Even if one does develop a successful plan of overcoming all of these obstacles, there is significant debate about the ethics of affirmative action. Some scholars assert that affirmative action amounts to “reverse discrimination.” This argument contends that by actively giving preference to applicants on the basis of protected classes such as race or gender, employers are effectively discriminating against all others who do not receive such preferential consideration.
Reverse Discrimination Argues that Hiring Should Be Based Only on Relevant Qualifications
Proponents of the reverse discrimination position are not swayed by the noble intentions of affirmative action to correct existing imbalances in the workforce. Instead, people of this view insist that discrimination of any kind, irrespective of intent, is wrong. They further argue that employment decisions should be based only on relevant qualifications for the job at hand, period.
Affirmative action programs are rarely mandated by law, except for certain kinds of employers (e.g., federal contractors) and by court order when it is found that an employer has engaged in traditional discriminatory practices. Apart from these exceptions, the decision to adopt an affirmative action program is usually left to the discretion of the employer. But the distinctions between legal and illegal affirmative action programs are far from clear.
The Supreme Court has upheld the legality of voluntary affirmative action programs using narrowly tailored quota systems and where the employer has a “long and shameful record of delay and resistance” as it pertains to diverse hiring practices. However, the Supreme Court has also held that certain practices designed to promote minority races in employment decisions cross the line.
Given the lack of consensus in both legal standard and public opinion surrounding affirmative action, employers should tread carefully. Demographic disparities between the company and the local community should be carefully scrutinized, and local laws/cases should be consulted before adopting certain practices.
In the final part of this article series, we’ll talk about the concept of diversity in the workplace and how employers can benefit from it.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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