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Affirmative Action
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.