Affirmative Action Equal Opportunity

Affirmative Action/Equal Opportunity

The policies of affirmative action aiming at assisting the black Americans are of recent origin. The policies have sought its origin to varied sources like legal structure, executive instructions, and court rulings. It was during the last three decades that these policies were being developed and they have become debatable as well. (Legal History) During the last three decades of the nineteenth century, a large number of African-Americans officiated in important public posts inclusive of two senators and 20 members in the House. However withdrawal of sustenance for reconstruction by the federal government in the late nineteenth century, the benefits extended to African-Americans were wiped out and substituted by a system of legal segregation such as that of Latinos, Asians, and Native Americans. (Affirmative Action: Background)

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Descriptive information regarding the evolution of Affirmative action and the Equal Opportunity Act- and the opposition of such laws

The segregationist maxim of "separate but equal," depicting separation of races in public places like schools, transportation, etc. was upheld in 1896 by the Supreme Court in the case of Plessy v. Ferguson, of course, ensuring the opportunities extended to the different races are taken to mean as equal. The rebirth of the notion of affirmative action in present times was traced to June 25, 1941, when President Franklin Roosevelt strived to prevent a civil rights movement in Washington organized by A Phillip Randolph and issued an Executive Order entailing the defense contractors to undertake ensuring of indiscriminate employment opportunities in respect of the projects being funded by Government. Extension to the executive order was made to cover all the federal contractors and subcontractors. The African-American communities and the promoters of civil rights movement exerted pressure on the subsequent Presidents for ensuring increasing and indiscriminate job opportunities for the marginal communities. (Affirmative Action: Background)

The Equal Pay Act of 1963 endeavored to refrain from providing discriminatory payment at different rates to both genders in jobs involving equal skill, effort and responsibility. The Civil Rights Act of 1964 strived to ensure equal employment opportunity with inclusion of a separate section in this regard. Title VII, a section in the Act prohibited the employers having more than 25 employees, to avoid hiring persons on the basis of race, color, religion, sex or nativity. This section also prohibits its interpretation in any sphere with a view to acquire privileged treatment by a group on the basis of race, color, religion, sex or nativity. However, it is noticed to have given scope for affirmative action in some instances of discrimination. The section Title VII, has since served as a reference for the adversaries of affirmative action policies. However, the out break of executive orders and court decisions have roused much controversy. (Legal History)

The phrase 'affirmative action' was brought to popular debate when it was used by President Kennedy in the Executive order No. 10925 enforcing the federal contractors to take affirmative action in respect of equal treatment of the applicants irrespective of their differences in religion, sex and nativity. The Order also motivated for wider coverage of the eligible minorities those who were formerly ignored. This is considered as the first official use of the much debated phrase marking the transition of the nation from a legitimate slavery society to a society which is color-blind. (Knickerbocker, 2003) President Johnson subsequently issued a similar order. All emotions were attached to the order of Kennedy and it was further strengthened by President Johnson just one year later when three civil right volunteers were killed by the group Ku Klux Klan in Mississippi in 1964. President Lyndon Johnson issued the Executive Order 11246 sanctioning establishment of the Office of Federal Contract Compliance in the Department of Labor for implementation of the provisions with regard to indiscriminate and affirmative action. In 1967 the executive order was modified to extend its coverage to prohibit discrimination in terms of sex and forced the federal contractors to expand employment opportunities to women and also enable them to work without any threat. The Executive order 11246 is considered to be the most appropriate federal agenda in ensuring equal opportunities to the minorities. (Affirmative Action: Background)

The discrimination of the employed persons in the age of group 40 years and above in respect of hiring, emancipation, payment, elevation, perks are protected by Age Discrimination in Employment Act of 1967. The privileged engagement of disabled veterans and matured experts of Vietnam era found suitable otherwise were ensured by the Vietnam Era Veterans Readjustment Assistance Act of 1972. Soon after a year however, the Act had to be modified for extensive coverage of affirmative action in respect of employment and promotion of the disabled persons by the federal agencies and contractor. The amendments incorporated highlight the use of affirmative action as the equilibrating means of divergent motives. The affirmative action was taken to mean as the extension of adequate prospects for competition and not as a guarantee for success. (Affirmative Action: Background)

The prohibition of discrimination against otherwise eligible but disabled persons are imposed by Title I of Americans with Disabilities Act of 1990 and Sections 501 and 503 of the Rehabilitation Act of 1973. Directives for provisions of usual accommodations to the disabled persons are also issued in these sections. Prohibition on inquiring about the status of citizenship of the person at the time of hiring is imposed by the Immigration Reform and Control Act with a view to avoid discriminations on the ground of nativity. The seven prohibitive decisions of the Supreme Court were reversed by the Civil Rights Act of 1991 and reiterated the rights provided by the Civil Rights Act of 1964. (Equal Employment Opportunity laws and their Enforcement Agencies)

The Government as well as the society found it appropriate to make efforts to put right the past injustices and reduce the present inequalities during the 1960s and 1970s, when the notion of Affirmative Action was started and promoted. The efficacy of the Affirmative Action was challenged by some critics accusing it as a unique concept of recent origin leveled by the liberals in contravention of the conventions of history. Widespread protests with antipathy of the white resulted as a consequence of the materialization of the provisions relating to Affirmative Action. This caused racial violence in corporate America and academic campuses. (Innis; Innis, Advice to The President of the United States on matters of Race) The deliberations over the efficacy of the Affirmative Action were revolved around high accusations which often confuses rather than making it clear. (Affirmative Action: Background)

No transparent and widely accepted definition was put forth with regard to the concept of Affirmative Action. As a result of this there is widespread confusion and misrepresentation of the issue. The provisions relating to Quotas were regarded as the most contentious ones and vehemently negated by the promoters of civil right movements and white liberal associates. (Innis; Innis, Advice to The President of the United States on matters of Race) Vehement oppositions to affirmative action ware formulated on the basis of anti-discrimination and unwarranted preferences. It has been observed, however, that a less than 2% of the total 91000 cases relating to employment discrimination before Employment Opportunities Commission related to anti-discrimination cases. The provisions relating Affirmative Action as laid down in the executive orders necessitated adequate educational qualification and job for achieving benefits from affirmative action. (Sykes, The Origins of Affirmative Action)

The affirmative action is criticized on several points. Firstly, the equality necessitates credit to the merit --conferring higher positions to the meritorious candidates. However, the affirmative actions forces preferential treatment in terms of race or gender ignoring the facts of lesser qualifications. Thus the affirmative action is accused of not being fair. Next the Affirmative policies themselves are accused of being unfair, and based on discrimination, race and sex. "It is to be criticized in the sense of its preference to a race, for exerting preference of one gender over another and being discriminatory for imposing penalties to a person for being a member of a particular group." (Mills, 1994)

The affirmative action is simply doing the actions in the similar dimensions by favoring the racial minorities against the whites. The affirmative action is said to be unjust for introducing the quota system and depending upon the social inequalities as the basis for their validation. The notion of social injustice has been traditionally seen as faulty and resulted in impracticable remedies. It is faulty to generalize individual actions and taken actions against the social institutions. Condemning social institutions and social environment for difficulties of persons is considered a method to set aside the actions of the responsible people. (Blanchard; Crosby, 1989)

It has been criticized that the affirmative action strived to benefit the minorities and weaker sex significantly. Simultaneously, the white male population is noticed to have pushed aside so as to give a chance to underprivileged groups to hold the positions which is quite deplorable for them. It is being criticized on the ground that the benefits extended to the minorities out of the preferential treatment are awkward in the sense that rather than increasing their sense of self-esteem with greater opportunities, it stains them with the spots of inefficiency and incompetence since they have granted the positions as the token of gratitude by the affirmative action. The affirmative action is considered to be socially disruptive as it supports the social divisions. "The affirmative action strives to divide citizens into different groups rather than emphasizing on equal treatments and granting the deserving respect on the basis of merit" (Ezorsky, 1991) This has a gloomy consequence of predicting an intimidating atmosphere with each of the groups accusing others and throwing abuses. (Ezorsky, 1991)

Again simply identifying a group as a beneficiary for special privileges does not entail a particular member of that group the necessary right to have special treatment. The process also involves a cyclical process whereby the positions evacuated by moving up of a specially benefited member of the group through affirmative action, is again to be filled in by another less meritorious member of that group. Even the justifications of the affirmative actions are seen as malicious due to its cyclical nature. Even though the programs are in operation since more than twenty years ago, no targeted period for its culmination is seen in near future. Moreover, no timeframe can ever be possible to be demarcated for total disappearance of the social disparities. "Without proper identification of the types of injustice and without imposing restrictions on the remedial measures the affirmative action policy is predicted to be a great failure with sheer wastage of resources." (Blanchard; Crosby, 1989) Finally the Affirmative Action policy is criticized to have distracted the American society from really accomplishing a society which does not give importance to color.

The enforcement of both Affirmative Action and Equal Opportunity, including what agencies control the enforcement of both acts

The policies of Affirmative Action necessitate the employer to devise an appropriate policy and effectively implement that. "The Affirmative Action plan is required to include the rules and procedures in a written document subject to annual monitoring" (Blanchard; Crosby, 1989) The policies extended as a solution to the problem areas and restrictive activities are also to be laid down in an institution specific manner. The accomplishment of the objectives of the program depends upon honest implementation of the program by the employer along with reductions of the obstacles in extending equal job opportunities. The legitimacy of the programs of Affirmative Action particularly involving preferences are subject to review. Legal and constitutional sanctions must be there behind such preferences. The Affirmative Action plan in order to have a legal sanction must include transient, and personalized acceptable solutions for the problems it strives to solve. The solutions so extended must be accomplishing the public interest and should not interfere with the legal rights of the other groups. (Greene, 1989)

The enforcement of Affirmative Action first initiated in the construction industry. The implementation of affirmative action in work places is forced by the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor. The possibilities in promotion of integration by race and sex are seen in formulation of a well targeted affirmative program by Office of Federal Contract Compliance Programs. As a remedy to the age old discrimination in the work places the Office of Federal Contract Compliance Programs formulated government-wide programs in 1965. A plethora of affirmative action measures were undertaken to enhance the employment opportunities for the minorities especially in the field of federal funded construction projects. (Affirmative Action: Background)

The Equal Employment Opportunity Commission (EEOC) has been granted enough authorizations to enforce the affirmative action programs against an employer as a solution for identified adverse discrimination of job opportunities against the minority race. However, its scope is confined by its own limitations. The OFCCP not being restricted to respond to the complaints similar to the EEOC there is every possibility of taking a realistic role in this sphere. The OFCCP may focus on the most outrageous violations converging on the large enterprises where the effects are prominent. However, the expected result has not largely been accomplished. The budgetary limit of $59 million in the year 1995 along with the staff of 918 the OFCCP is considered to have meager resources for accomplishing the responsibility of inspecting 150,000 workplaces engaging 28 million persons in the projects of federal contractors constituting 25% of national workforce. The trend of reviewing about 4000 compliances per annum schedules the review of each workplace once every 38 years. (Bergmann, 1996)

The Title VII of the Civil Rights Act of 1964, Civil Rights Act of 1991, Equal Pay Act of 1963, Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978 and Americans with Disabilities Act of 1990 are being enforced by The Equal Employment Opportunity Commission (EEOC). The Executive Order 11246 of 1956, Rehabilitation Act of 1973, the Vietnam Era Veteran Readjustment Assistance Act of 1974 and the Title-I of the Americans with Disabilities Act of 1990 are being enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor. The Title IX-Educational Amendments of 1972, the Title VI and Rehabilitation Act-504 are being dealt by the Office of Civil Rights. The Immigration Reform and Control Act is being enforced by the Office of Homeland Security, formerly known as the Immigration and Naturalization Service. (Equal Employment Opportunity laws and their Enforcement Agencies)

Important cases in which both Affirmative Action and Equal Opportunity have been represented, the outcome of such cases and the repercussion of those outcomes.

During the early part of the 70s, affirmative action which initially did not give importance to race started giving prominence to the concept of race. (Barber, 2004) The affirmative action was first faced a constitutional examination in the case of University of California v. Bakke in the year 1978. The UC-Davis's medical school in consonance with the Affirmative Policy proclaimed two separate principles for admission. There was a reservation of 16 slots to be allotted to blacks after being adjudged in less rigorous standards. The Allan Bakke knocked the door of the court being rejected and complained about the violation of Act. (Richey, 2003)

The medical school advocated the necessity of the discrimination against Bakke as a redress for past discrimination against the blacks and also seen the enhancement of learning of the medical students with skin color diversity leading to more robust interchange of ideas. The court rejected the plea of the school authorities and condemned the racial quota and instructed for admission of Bakke. (Barber, 2004) The remarkable decision of the U.S. Supreme Court in the case of Bakke led Justice Thurgood Marshall to react and advocate the necessity of racial classification to redress the age old discrimination against the blacks. His opinion was rejected as only four out of the total nine justices could agree for the Constitutional permissions with regard to the preferential quota and racial set asides. A fundamental departure is seen since then in the discourses over the affirmative action. (Richey, 2003)

The Court has to admit, in the interests of diversity, the admissions of lesser qualified minorities as a forceful state interest. (Barber, 2004) The objective has become to emphasize on the diversity instead of on black white equality. The idea of strengthening the group was replaced by empowerment of the individuals. Marshall in 1978 opined that "the status of blacks presently in America presents an awful picture, however, is regarded as the unavoidable outcome of age old inequality." (Richey, 2003) In terms of comfort or achievement the racial equality is not seen in near future. Marshall supported his view citing empirical analysis on seven categories including the proportion of black representation in five influential professions. A diversification of the debate was seen in after Bakke. According to John A. Powell, a law professor at Ohio State University and executive director of the Kirwan Institute for the Study of Race and Ethnicity in United States, no more talk was leveled for creation of a society ensuring racial equality. (Richey, 2003)

The hiring of minorities in skilled positions by the Louisiana plant after completion of the introduced in-plant program for the worker was challenged in 1979 in the case of United Steelworkers of America v. Weber. An agreement was signed for reservation of half of the training program in favor of African-American employees and the rest half to the whites. The positions to be filled up were to be determined by way of seniorities in each group, indicating the possibility of some junior African-American being admitted earlier than the senior whites. The claim of the white employee that the training program is in contravention to the provisions enshrined in Title VII of the Civil Rights Act of 1964, was rejected by Court on the ground of legal sanctions behind enforcement of affirmative action by the private companies with a view to eradicate the conventional racial disparities. The Supreme Court justified the enactment of the Congress setting aside to the tune of 10% of federal funds for state and local public works in respect of minorities business. The underlying principle behind the set-aside as emphasized by the Court ruling, according to Chief Justice Burger, was ensuring the beneficiary not resorting to procurement practices that in the opinion of the Congress may lead to sustenance of the impact of past discrimination that inhibited access of minority business to the prospective of public contract. (Affirmative Action: Background)

The Court cases pertaining to races in the year 1995 were handed down with decisions on affirmative action that formed the maxims in consonance with the constitutional provisions of guaranteeing equal protection were seen as challenging. The embarrassing development of the maxims can be traced their origin to different incidents such as the decisions in the case of Korematsu v. United States during the World War II. The incarceration of the Japanese-Americans as a racial community was approved by the Court without confirmation of the individual political affiliation. The decision in the case is represented as one of the legendary event in the history of American judiciary system. It is considered as the most influential constitutional challenge leveled by the Asian-Americans and regarded as the significant source of the units known as strict scrutiny that delimits the constitutional jurisdictions in the sphere of public interpretation of racial classifications and private extensions of racial generalizations. (Reggie; Frank, 1996) similar significant case of Adarand Constructions, Inc. v. Pena was decided in the year 1994-95 by the Supreme Court. The Court condemned in this case the affirmative action for African-Americans and other racial minorities vehemently that can be compared with the force of racism against the groups. It said to have affected the notion of 'reverse discrimination' and so also traditional discrimination. Stringent checkups were made with regard to all the legal references pertaining to racism without any regard to the underlying objective, effects and circumstances. The decisions made in the Korematsu were taken as precedent in making the decisions in Adarand case. In this case the Korematsu decision was minutely scrutinized and recognized the mistaken decisions made in incarceration cases rather than simply taking the decisions as precedence. The court is said to, however, have failed in bringing out the distinctions between the cases of Korematsu and Adarand and the result of extending strict scrutiny to all the racial classifications. (Reggie; Frank, 1996)

After the decisions made in the case of Bakke, the objectives of and set-asides are viewed as unconstitutional. However, it is not clearly indicated as to the magnitude of the weights that colleges should accord to the races with out surpassing the limits of reverse discrimination. The issue was raised by the cases of the University of Michigan. Some of the adversaries of affirmative action proclaim that the legal system of United States should be made color blind. The college admissions should not be influenced by the racial factors. Contrary to this the supporters of the affirmative action opine that since long the circumstances are adverse to blacks and it is not just as not to take into account the disadvantages of a group still present more particularly by a society emphasizing on diversity. Sitting on the fence the Bush administration declined to advocate the decisions to counteract the stand of races in such plans simultaneously regarding the Michigan Plans as unconstitutional. (Richey, 2003)

The Jayson Blair scandal at The New York Times signifies the spontaneous efforts for enhancing diversity with special skill development programs and quick advancement. Controversy has also arisen as over such efforts whether advanced harmoniously with the sins of past discrimination or the quota system that belief on reverse discrimination. The opposition of Bush Administration to the affirmative action and the decisions on the Michigan cases led many of the political associates to stand against the issue. At least forty of the Fortune 500 companies like PepsiCo, American Airlines, Eastman Kodak, Microsoft, Intel etc. filed legal briefings in support of the University of Michigan. (Knickerbocker, 2003)

How Affirmative Action and Equal Opportunity affect the very diverse culture of CURRENT DAY America and how the minorities feel they receive unequal treatment.

The underlying justifications for formulation of affirmative action program revolves around the efforts of curing the past discriminations and accomplishment of racial diversity. Extending of equal opportunities involves eradication of obstacles adversely affecting particular groups. Acts and laws are being formulated with a view to restoring the people's rights amidst the groups, business and society as a whole. The diversity refers to the establishment of institutions that come along the provisions for equal opportunities. The difference within everyone is prominent to be visualized and recognition, respect and valuing the differences are indicated by the diversity. The provision of equal opportunities and establishment of diversity makes reduces the inequalities and counteract with the obstacles confronted by the minorities and disadvantaged groups. This also helps the society in taking advantages of the productive contributions of the diverse cultures in society. (Helms; Helms, 1998)

Diversity has profound impact in the national economy in several ways. A diverse workforce in an industry is more prone to engage in innovations with the varied cultures along with varied approaches to perceive the things. The flexibility and open mindedness of the people are being infused with diversity. (Carnevale, 2000) "Presently, a variation in the dimensions of the workplace is noticed and more emphasis is being laid on diverse approaches" (Greene, 1989)

The progressive diversities in the home as well as the international markets have profound impact upon the hiring patterns. Many of the US companies are observed to have resorted to the affirmative action hiring policies for varied reasons. Some companies visualizes in its effectiveness, creativity and flexibility. Some resort to it due to their confidence on it. Some practice under the pressure of legal suits and under legal agreement of fulfilling the certain targeted hiring levels. Irrespective of the reasons for resorting to the diverse workforce, analyses have been made to reveal that the policies have a positive impact on the hiring and internal assessment policy of the company. However, as a consequence hiring of better workforce from all diverse cultures is difficult to be obtained out of the preferential packages necessitated by the affirmative action. (Carnevale, 2000)

The present day economic stringency forces us to accommodate with cultural and other diversities. Many companies have already mastered the skills to take advantages from the workforce diversities in order to accomplish success. (Ezorsky, 1991) Diversity was initially perceived as an independent factor. Presently, its integration with the goals and objectives of companies is quite prominent. It has become a vital part of several companies. This is being treated as a crucial element in several efforts. The efforts of many companies in ensuring more and more diversities in the critical sectors are appreciated. "The workforce seasoned enough to accommodate diversity assists is demonstrating the effectiveness of new market in the international arena" (Blanchard; Crosby, 1989) Companies watch valuation of contributions made by each. This brings more productivity inculcating the feeling of being greatly valued in every one. (Blanchard; Crosby, 1989)

The consequence of the Affirmative Action is said to have altered the social and political sketch of USA. The advocates of Affirmative Action have sufficient strength in their arguments that not practicing affirmative action is unjust to the underprivileged groups. Creation of equal opportunity is not possible by simply curing the present discrimination. There are two obvious reasons. Firstly, it is due to the persistent impact of the discriminations of the past. The present underprivileged conditions of the blacks are seen as abysmal poverty of the black and it has already been recognized that the poverty is the consequence of past discriminations. (Mills, 1994)

Thus the persons found to be poor due to past discrimination really feels it difficult to acquire the equal qualifications necessary for getting entry to Colleges or for gaining employment. Secondly, the impact of present discriminations, particularly at lower levels of education is found to be self perpetuating. The accomplishment of educational pursuits by the blacks is limited and disproportionate to that of the whites due to isolation, underestimation by the teachers, and biased attitude in conducting exams. Against this background subjecting them to equal competition is considered unjust and unrestrained past discrimination and institutional imperfection seems to be self-perpetuating. (Ezorsky, 1991)

It is still controversial to determine the impact of Affirmative Action on the minorities to bring their increased success during the past three decades. Presently, better proportion of the African-Americans and other minorities are found to be represented in the sphere of university campuses, corporate boardrooms, executive suites, military services as they were before thirty years. (Knickerbocker, 2003) The Affirmative Action policies are perceived to have brought significant advantages for women and minorities during the last 25 years. It has estimated that during the period the black representation in the national workforce has increased by 50% and executive positions held by blacks have been substantially increased to five times. The emancipation of women in legal profession is estimated to be only 5% during 1970, which presently has increased significantly to 20%. Conversely the white students constituted eighty percent of the total strength of the University of California, Berkeley twenty five years earlier which is only forty-five percent presently. (Andre; Velasquez; Mazur, 1992) "The question arises as to the success of Affirmative Action and its impact on the minorities and weaker sex granting them the adequate reformation so as to enable them to enjoy privileges over the white males" (Mills, 1994)

Irrespective of these measures persistent inequalities are visible to be present. The analysis of income statistics does not corroborate the success of the affirmative action in establishment of an egalitarian society. The white adult males are continuing to receive higher incomes in comparison to their black and Hispanic counterparts and women of any communities. The rates of unemployment seem to be quite larger among the Black and Hispanic groups than those of the whites. The rate of successful completion of the graduation from colleges, admission in respect of professional courses by the whites is still more than that of the black minorities. Even though, the admission of women has increased substantially in professional courses over the years, their proportionate representation is still considered to be low. (Greene, 1989)

These empirical studies challenge the efficacy of affirmative action on the fate of minorities and women against the perpetuating impacts of discrimination of the past and which are based on institutional biases. Taking into account the number of students completing the college education the representation of the minorities and women still are discouraging and questions the effective influence of affirmative action. Studies reveal that even though black males have reduced their income disparities with their counterparts however they still lag behind their counterparts in terms of learning. (Ezorsky, 1991) Similarly, the college educated black women said to have surpassed their white counterparts in terms of earning but the women of both the categories are still lagging behind the white males. (Ezorsky, 1991)

About 97% of the senior corporate executives in United States seem to be from the white community. Even though the blacks constitute about 12.7% of the total workforce their representation in the professional level is limited only to 5%. Similarly, the 7.5% of the total workforce are from Hispanics yet only 4% of this group represents in white-collar jobs. It is thus observed that the educated fraction of such groups and females are the true beneficiaries of the Affirmative Action. It is still discerning to note that the minorities groups of African-American and Hispanics are not yet able to get their fair representation in the selective educational institutions even under the influence of affirmative action. (Carnevale, 2000) The affirmative action seems to have done little for the perpetuating impecunious relatively uneducated class. It has been accused that the "affirmative action is creating a socio-economic trend that was already in process among the minority groups." (Blanchard; Crosby, 1989) It is helping the middle class to rise in status worsening the situation of poor, which resulted in glaring socio-economic disparities within the minority groups. (Blanchard; Crosby, 1989)