Through its reference to affirmative action, the Civil Rights Act of 1964 ushered in a remedy for disadvantage and discrimination that was intended to reach into the hallowed halls of higher education, union halls, and corporate meeting rooms. President Johnson extended The Act to federal contractors through an Executive Order, and again the charge was to take affirmative action to ensure discrimination was not occurring. The Act was intended to guide and coerce social change, and it empowered the federal courts to penalize violators. The law was based on the construct that people who have been historically excluded from substantive social institutionalized benefits -- culture, education, employment -- needed a boost in the form of preferential selection. This means that the same factors that trigger or support exclusion, by law (ethnicity, gender, and race), become the same factors that drive the affirmative actions that serve to increase representation of minorities and women in these institutionalized endeavors.
In this review of the literature, the fundamental considerations of affirmative action are explored. A meaningful review of the affirmative action literature must consider both legal considerations and public perspectives. Legal and regulatory bodies in the United States have been deeply engaged in creating, applying, and ensuring the implementation of affirmative action rules. Public debate regarding affirmative action has been as vigorously engaging with the perspective of citizens trending to polarity. However, over the past several decades, these robust pro and con positions appear to bracket a wholesomely-sized middle inhabited by people undecided about the effectiveness of affirmative action rules, the need to continue affirmative action policies, and the impact of increased national diversity on the concept of inclusion-exclusion.
Harris (2009) reviewed the policy implementation of affirmative action in an effort to determine who has benefitted from the law, and to what degree those benefits have been achieved. Studies and research reviewed by Harris indicate that when affirmative action is judiciously implemented, the law does in fact bring about the policy aim, which is colloquially referred to as "leveling of the playing field." Harris (2009) points to benefits realized for both individuals and organizations. Indeed, some of his findings are surprising: higher stock prices and benefits to white males are associated with firms that practice affirmative action. According to Harris (2009), some experts attribute these benefits to an overall increase in the performance of organizations that embrace affirmative action, which may be related to better compensation for all the employee groups in a company, hiring of a diverse workforce that draws from the most talented in the pool, and to in increased capacity to deal with challenges in the external environment and competitive market. Harris (2009) also points to the highly resistant glass ceiling and gendered roles, which are just as evident in the governmental bodies charged with affirmative action regulations as it is in private enterprise. Implementation of affirmative action policy, Harris (2009) asserted, lacks teeth and "still lags in decreasing the prevalence of discrimination in the workplace that threaten to retard and/or prevent the advancement of these [minorities and women] groups" (p. 368).
The critical theory perspective of Darity, et al. (2011) enables construction of a model that considers the ramifications of changes to the inclusion criteria for affirmative action eligibility. The term subaltern is used to refer to those individuals or social groups excluded from the dominant, hegemonic power structure through geographic, political, or social membership. Darity, et al. (2011) explored affirmative action eligibility outcomes for subaltern groups in the United States and in rural India. The model developed by Darity, et al. (2011) showed the numbers of affirmative action beneficiaries when eligible individuals were identified through class-based markers or group-based markers. Particularly when eligibility for certain positions was based on performance, skill sets, and knowledge, more individuals were identified in the subaltern group-based than in class-based situations as being eligible for affirmative action (Darity, et al., 2011). The important distinction between these subaltern groups is that means testing of some type is used to identify affirmative action beneficiaries in a class-based model (Darity, et al., 2011). A group-based model tends to be less selective in that it may not discriminate among attributes such as level of education, annual household income, and the like. (Darity, et al., 2011) From this, it is apparent that there is a dilution effect, which limits access to preferential treatment by under-represented groups when a class-based model is preferred over a group-based model (Darity, et al., 2011). Two particularly important findings are demonstrated by the model: As the group to population ratio diminishes, and the lower the correlation between group status and class status, the greater the degree of dilution of affirmative action benefit for targeted individuals (Darity, et al., 2011).
The issue of diversity vs. discrimination is an important one in any discussion of affirmative action. Dariety, et al. (2011) made this point in their analysis, saying that class-based affirmative action can compound marginalization by not selecting members of a group who are more advantaged in their class (Darity, et al., 2011). Examples of this phenomenon include those individual who do not experience affirmative action boosted access to an elite university or to a high status profession because they are already advantaged when compared to others in their group (Darity, et al., 2011). The danger from this compounded marginalization is that it serves to further stereotypes about the members of a particular group (Darity, et al., 2011).
Lipson (2004) addressed the issue of diversity and discrimination head-on by focusing the outcomes that result from reframing, replacing, or supplementing affirmative action policies that are rooted in civil rights law with diversity policies that have been widely embraced by business and government enterprises alike. According to Lipson (2004), the shift has come from a de-emphasis of the affirmative action logic, which is located in a rights-based framework, and emphasizing instead the benefits that business and governmental organizations can experience when they embed diversity policy in their recruiting, hiring, retention, and promotion policies. These two philosophical and practical approaches are, Lipson stressed (2004), different animals. Lipson (2004) is clear that the actions of the courts have paved the way for this shift toward diversity practices and away from civil rights policies. Indeed, the state of Michigan has functioned as proving ground for this very struggle (Lipson, 2004). Although the United States Supreme Court rejected the so-called colorblind argument in the Grutter v. Bolllinger 2003 case over admissions policies at the University of Michigan Law School and again in the Proposal 2 on the November 2006 ballot, the tectonic shift in legal arguments and political defense has been soundly heard and observed (Lipson, 2004). For those interested in restoring the civil rights basis in affirmative action, there is interest in limiting benefits to those who have historically been marginalized (Lipson, 2004). This would, de facto, restrict affirmative action from being applied to immigrant populations (Lipson, 2004). The argument undergirding the colorblind side of the discussion is that affirmative action seems to have devolved into "a policy of 'racial blending' that benefits privileged blacks and Hispanics who haven't suffered pervasive disadvantages or subordination at the expense of disadvantaged whites and Asians" (Lipson, 2004, p. 701).
Paiva (2012) also makes the point that the historical origins of discrimination are -- and must remain -- an important component of the generation of solutions. Paiva's (2012) analysis is based on Brazilian society and, as such, cautions against attempts at a straightforward application of contemporary ideas about human rights to the Brazilian context. Moreover, Paiva (2012) asserted that greater equality in the public sector does not necessarily result in more inclusion for the citizens of a country -- citing the United States as a case in point with its foundational roots in equality. Paiva (2012) argued that one "must begin with the structural inequality of its social order…in a public sphere whose original trace is its inequality" (p. 91).
As any critical theorist will attest, structural inequality is not just the province of developing and under-developed countries. The deeply embedded nature of discrimination -- and the willingness of a society to take action to correct it -- is perhaps no better illustrated than in the case of Dukes v. Wal-Mart Stores, Inc. 2007. As it happened, the United States Court of Appeals for the Ninth Circuit granted class action certification on February 6, 2007 (Spangler, 2008) that will doubtless become one of the most important employment discrimination cases of the century. At issue was the upholding of the district court's ruling that Wal-Mart discriminated against a class of women plaintiffs on the basis of their gender in violation of Title VII of the Civil Rights Act of 1964 (Spangler, 2008). The significance of this case comes from three key factors: 1) A class action suit places a substantial amount of the legal burden on the defendant, and the case has the distinction of being the single biggest class action discrimination suit in the history of the federal court; 2)…