Affirmative action in employment hiring: legal history, benefits, and burdens

Affirmative Action in Hiring

Affrimative Action In Hiring

An Analysis of Affirmative Action in the Hiring Process

The human resources department of an organization/agency can be one of the most challenging to run in the organization. Decisions will constantly be made this department that will affect the character and composition of the company. Among those decisions is whether to implement an Affirmative Action Plan. Affirmative action was approved by the United States Supreme Court in 1978 in the case of the University of California Regents v. Bakke. Since then and throughout the years, it has remained the center of heated debates and discussions. While cases on affirmative action have come before the Supreme Court numerous times since the Bakke, the Supreme Court has ultimately failed to overturn its decision, and as such affirmative action remains legal on a national level. While this is true on a national level, many states such as California, Michigan, Nebraska, and Washington state have banned affirmative action (Kirkland 2010). Moreover, numerous states have placed it on recent ballots to vote on a ban. Still, regardless of the controversy surrounding affirmative action, when employers have implemented it in the hiring process, their original objectives have been accomplished. In several actual scenarios that are discussed in this report, affirmative action plans have increased diversity in terms of minorities and women. On the other hand, while it increases minority and women representation, it decreases the representation of other candidates who were also qualified for the job. This report discusses thoroughly the history of affirmative action and arguments for and against its implementation in the employment hiring process.

Overview

Affirmative action is defined as taking positive steps to increase the representation in areas of employment, education, and business in areas in which they have been traditionally excluded (Fullinwider).

Affirmative action has been one of the most controversial principles in our nation's history, and the controversy is still real and current with strong arguments existing on both sides. Much of the controversy and strong emotion surrounds using affirmative action in terms of offering preferential treatment to employment candidates on the basis of race, gender, ethnicity (Fullinwider, 2009), and many will argue that to favor a candidate based on increasing the representation of a particular race, gender, or ethnicity is not only unethical but unfair to more qualified candidates that are not in the race, gender, or ethnicity being promoted. This report will analyze affirmative action in terms of its legal history along with the benefits and burdens of implementing it in the hiring process.

Why Is Diversity Important in the Workplace?

According to the American Heritage College Dictionary diversity is defined as, "the quality or fact of being different; having variety or multiformity" (American Heritage, 1993). An environment that is diverse is one that embraces a variety of various cultures and ethnic backgrounds, different races, genders, and some would argue that age is a component of diversity. However, does a lack of diversity effect the efficient operation of the company? If it does not, as some will agree, then why is diversity important? One argument is that diversity promotes a suitable environment or culture for employees (Berman, Bowman, West, and Van Wart, 2006). Berman, Bowman, West, and Van Wart provide an example to illustrate this principle. Assume that an employee has a minor child. A department that insists on standard working hours, does not provide child care assistance, or subtly penalizes leaves of absences for family related reasons does not create a suitable environment for employee-parents. They may lose employee-parents or employee parents may decline to accept employment with this employer. An employer that promotes diversity will more likely avoid this problem by creating a suitable environment and culture for employee parents. A diverse employer will be more aware of the unique scenarios of employee-parents since it is likely to have more than one employee-parent on staff. Furthermore, the diverse employer may have employee-parents in positions of management and therefore the management staff, by being in a similar position, are more likely to have a sensitivity to the unique situations of employee-parents.

Another example of how affirmative action benefit's the workplace is that it results in a well rounded workforce. The benefits of a well rounded workforce are numerous -- one of the benefits is that it will assist the employer in avoiding discrimination complaints including those from white males (Berman, Bowman, West, and Van Wart, 2006). A complaint for discrimination may directly affect the operation of the company because of the resources involved to litigate the complaint. Even complaints that ultimately turn out to be without merit may involve the company expending resources for attorney's fees and other related costs. In addition, a complaint for discrimination will result in bad publicity for the company which can have adverse affects on the company's reputation.

Still, in spite of these two benefits related to promoting company diversity, many are not convinced of the validity of affirmative action. The position is that these justifications, especially the second one, detract from the integrity of the hiring process since the underlying intent in hiring an employee is not dependent on the employee's level of qualification and credentials for the position, but based on an attempt to avoid a discrimination lawsuit or avoid appearing unconcerned about diversity. Critics of affirmative action would argue that a company that when a company concentrates their recruiting and hiring process on factors other than choosing the best candidate for the position, that ultimately the benefits that the company gains will be canceled out because the best candidate for the position was not chosen.

The History of Affirmative Action

In the early 1970s the controversy regarding affirmative action escalated (Fullinwider, 2009). The purpose and goal of affirmative action was to alleviate institutional discrimination that had occurred in the public sector. The following examples will illustrate that even though racial and gender oppression was outlawed, discrimination in the hiring process remained a current and relevant issue.

For example, in July 1970, the federal district court enjoined the state of Alabama from continuing to discriminate against blacks in the hiring process of state troopers. The court found that in the 37-year history of the patrol, there had never been a black state trooper (Almanac of Policy, 1995). In 1979, women represented only 4% of the entry level officers in the San Francisco Police Department (Id). In 1975, a federal district court found that Local 28 of the Sheet Metal Workers International Association had discriminated against non-white workers in recruitment, training, and admission to the union (Id). Finally, prior to 1974 and because African-Americans had been traditionally excluded from work in the craft unions, only 5 of 273 skilled craft workers hired by Kaiser Aluminum Company were African-American (Id).

The Current Status of Affirmative Action

The case of Grutter v. Bollinger was heard by the Supreme Court in 2003 and after years of upholding affirmative action programs, and the Court once again upheld affirmative action as a practice in as a method of remedying past discrimination. The petitioner in the case had applied to the University of Michigan Law School (Grutter, 2003). The Law School sought as part of its admissions requirements "a mix of students with varying backgrounds and experiences who will respect and learn from each other" and this subsequently became part of the Law School's written admissions policy (Id.).

As part of the admissions procedure each applicant's file was reviewed for objective factors such as grade point average and LSAT scores, and the policy stressed that no applicant would be admitted unless the committee expected that the applicant would do well enough to graduate with no serious academic problems (Id.). Still the policy made clear that high academic scores did not guarantee admission to law school, nor did low scores automatically disqualify an applicant (Id.). The policy required admission committee to look beyond grades and test scores to other criteria that were important in achieving the Law School's objectives (Id.).

The petitioner was a white female applicant to the Law School

who alleged that her application was being denied because the school uses race as a predominant factor in its admissions process under the Fourteenth Amendment (Id.). The Supreme Court in reaching its decision once again deferred to the academicians of the Law School in implementing their academic programs within constitutional proscribed limits, and held that the Law School has a compelling interest in promoting student diversity as within its institutional mission (Id.). The Court held that a race conscious program in itself does not operate as a quota and that the race conscious program "adequately insures that all factors that may contribute to a student body diversity are meaningfully considered alongside race in the admissions decision" (Id.). Still the Court considered the future of affirmative action as a temporary policy by holding, "We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today" (Id.).

With the decision in Grutter, the Court once again ruled that affirmative action was necessary to remedy the effects of past discrimination. What this means for public workplaces that programs discussed earlier in this report will are able to be used in the hiring process for government and public employers. Still, in light of the Supreme Court's ruling challenges on affirmative action are more frequent than before and these challenges have resulted in several states banning affirmative action, in spite of the Supreme Court decision.

In 2008, five states -- Arizona, Colorado, Missouri, Nebraska, and Oklahoma -- voted to ban affirmative action in government funded projects and public schools (Lindy, 2008). On November 7, 2006, the state of Michigan voted to ban affirmative action in the selection process in public universities (O'Connor, 2007). Part of the concern expressed by the administrators who voted for the ban was the perceived inferiority complex that it projects on African-Americans and Latino-Americans in that it presumes that they cannot compete with Asian-American and White American students (O'Connor, 2007). With this movement by the states, more and more states are disfavoring affirmative action which could result in the movement that the Supreme Court referred to in Grutter -- " We expect that 25 years from now the use of racial preferences will no longer be necessary." As mentioned previously, five states -- California, Michigan, Nebraska, and Washington state have banned affirmative action (Kirkland 2010).

In December 2010, U.S. District Judge Samuel Conti, upheld the state of California's Proposition 209 which bars racial, ethnic, and gender preferences in public education, employment, and contracting (Chea 2010). Before Judge Conti upheld Proposition 209, the Supreme Court of California had upheld Proposition 209 in August 2010 (Elias, 2010). The California Supreme Court voted 6-1 to uphold the Proposition 209 considering it a measure that protects everyone regardless of background (Elias, 2010). As it stands today, the United States Supreme Court has yet to overrule affirmative action, but several states have. Based on the doctrine of pre-emption, if these cases ever come before the Supreme Court, the Court can overrule them; or it can opt to overrule itself and end affirmative action in the nation. Until then, the debate and controversy remains current and ongoing.

The Balancing Test: Does the Benefit of Freedom in the Hiring Process Outweigh the Burden of Promoting Diversity Through Affirmative Action

With the above discussion in mind consider the following factual scenario.

Nona Pritchard was promoted to Senior Vice President of Human Resources for the Glanesville Police Department in September 2010. Her predecessor retired after 42 years of service. The Police Department is comprised of 78 officers and 93 support staff members. Its town is a small rural town. Of the 78 officers, there are six Latino-Americans, two Black Americans, two Asian-Americans, and seven women. Approximately 43% of the support staff is comprised of either Latino or African-Americans.

The Glanesville Police Department is in a state where affirmative action has not been banned, however the community in which she resides has launched against it including the members of her administrative staff. She is well aware that candidates of the less represented races and women have sought employment at the Force, but under her predecessor, the racial and gender composition of the Force has remained similar to what it currently is with slight improvement over the last 42 years.

While her colleagues have openly disagreed with affirmative action, they have agreed to consider an Affirmative Action Plan for the overall benefit to the Department. While she has the sole discretion towards hiring policies and procedures, any permanent change in Department Policy and Procedure must be voted on by a majority vote of the Human Resources Administration. The implementation of an Affirmative Action Plan would constitute a permanent change in the Department's policies and procedures. Captain Pritchard feels it is her responsibility to convince her colleagues that the Plan will do more good than harm to the Force. With this in mind, it is the Department's policy that any proposal for a permanent change be presented at a Board meeting. The Board has requested that the proposal from Pritchard include an objective analysis of each of the pros and cons of an Affirmative Action Plan and why each one would benefit or burden the Department. The following list are the results of her research and will form the basis for her proposal and presentation to the Board.

Benefits of Implementing an Affirmative Action Plan in the Hiring Process

1. Affirmative action promotes diversity.

Diversity in the workplace not only benefits the employees of the business, but the customers as well. Diversity results in a greater ability to relate to the company/organization, and an enhanced cultural understanding by the company/organization. This in turn can increase company efficiency because the a community will generally patronize more frequently organizations with whom they can relate to. On the other hand, if they feel as if they cannot relate to the company/organization, the initial support and trust can be minimized, but be established over time.

2. Affirmative action compensates minorities and women for past oppression.

While the years of slavery and subsequent oppression of minorities and women can never be reversed, affirmative action provides some from of reparation for that which minorities and women have faced. It is like a security badge that ensures that minorities and women will no longer face the oppression of the past, but will be hired and promoted just as other applicants. While the argument can be made, however, that we as a nation are no longer a nation of oppression and employers do not need to be directed on whom to hire. The reality, nevertheless, is the nation is still plagued by stereotypes, and oftentimes the prototype of what would make a successful employee in a position may not necessarily be a woman or a minority.

3. Affirmative action ensures fair employment representation for all taxpayers.

Courts and government officials are often concerned with a lack of minority representation because these position are funded by taxpayer dollars. The connotation is that the taxpayer that is assisting in funding the position, but may not have a fair opportunity to secure employment in the position. The Supreme Court in Christian Legal Society v. Martinez (2010), ruled against membership discrimination by student organizations where student funds were being used to support the student organizations. The Court was concerned that to permit the Christian Legal Society to impose its conditions on membership would ultimately result in a student whose tuition assists in funding the organization being rejected for membership or leadership in that organization. The same holds true for government positions funded by taxpayers. Affirmative action programs strive to keep all government positions open to all ethnic groups and minorities.

4. Affirmative action opens new opportunities to minorities and women.

An Affirmative Action Plan gives minorities and women additional opportunities in areas that they have not traditionally had opportunities in. For example, professions such as policing and fire fighting have bee traditionally male dominated, as discussed earlier in the San Francisco Police Department case. Still, in spite of affirmative action programs many agencies are still dominated by men. The implementation of an Affirmative Action Plan makes these opportunities available to minorities and women in more abundance. What's more, minorities and women may be motivated to consider these positions more frequently because they may feel that they have a better chance at being hired particularly if the Department is in the practice of hiring more minorities and women.

Burdens of Implementing an Affirmative Action Plan in the Hiring Process

1. Affirmative action leads to reverse discrimination.

There are different levels of qualified applicants for each open position -- some are highly qualified, some are moderately qualified, while others are sufficiently qualified. Affirmative action should be viewed as suspect because it can ultimately result in an applicant that is sufficiently qualified be chosen over an applicant that is highly qualified for the sake of meeting a quota. Furthermore, the U.S. Supreme Court ruled in 2009 that the Civil Rights Act will prohibits discrimination against white males just as it does minorities and women. The argument is that while there is a national history of discrimination against minorities and women, it is unethical to discriminate to alleviate the effects of discrimination.

2. Affirmative action may affect the organization's efficiency and operations.

Affirmative action could, in turn, could affect the operations of the company in the event that the more qualified applicant has been turned away and one that is a "less perfect" fit for the position is hired. The performance of the new hire may not equate to the performance of the rejected applicant especially if the new hire is less experienced or less educated. If affirmative action is the practice of the organization, this negative effect on its efficiency and functioning can be multiplied.

3. Affirmative action is condescending to minorities and women.

Many minorities and women take issue with the fact that affirmative action may result in a labeling them as a "token" that would not have secured the position without assistance. This could create hostility in the workplace as the colleagues may often patronize her abilities or view her performance inferior to theirs especially if they were hired without affirmative action. Moreover, the notion of being hired under an Affirmative Action Plan may ultimately inhibit her chances for a promotion especially if the employer who hired her also sees her as a token or has mentally labeled her as inferior. It may be a cycle at the workplace that she may not be able to counteract even with consistently superior performance.

4. Affirmative action demeans the integrity of the hiring process.

The hiring committee of an agency/organization are faced with a challenging task when they are chosen to fill a new position. As Berman, Bowman, West, and Van Wart illustrate in the text, when a position is hard to fill, recruitment for the position may take on several methods and become extremely strategic depending on the position (77). When an Affirmative Action Plan is in place, this can make the task of recruitment and hiring much more challenging to the hiring committee especially if the position is a hard to fill one.

For example, what would be the result an Affirmative Action Plan is implemented, but the only or most qualified candidates are white males? Or if no minorities or women applied for the position? Will the employer be compelled to target the recruitment towards these groups just to satisfy the requirements of the Plan, while ignoring the applicants that have demonstrated interest in the position and are qualified for it? If this is the case, the integrity of the recruitment and hiring process can be highly diminished and the hiring task can become considerably more tedious for the committee.

5. Affirmative action is regressive rather than progressive.

Implementation of an Affirmative Action Plan refuses to consider how far we have progressed as a society, but rather focuses on where we were and how to correct the past. While in the past many opportunities in the professional industries remained illusive for minorities and women, today the same opportunities openly exist for everyone. To require an employer to hire individuals partly on the basis of race or gender refuses to acknowledge that everyone has the same opportunities to secure apply to and secure a position. To presume that affirmative action is necessary to ensure fairness in the hiring process presumes that the employer has a similar oppressive mentality as employers in the past. Unless this regressive rather than progressive attitude is abandoned the nation will never truly move beyond the scars of the past.

Conclusion

Captain Pritchard presented her proposal, based on the above arguments, to the HR Board. After a presentation by Captain Pritchard, a lengthy deliberation by the Board, and independent research by each of its members, the five member Glanesville Police Department HR Board reached a decision -- they voted against the Affirmative Action Plan 3-2. As the split decision by the Board demonstrates, the decision to implement an Affirmative Action Plan in the hiring process is not a carefree and nonchalant one. It is an issue that most will have strong opinions regarding and ultimately without a sound resolution.

It is likely that when an affirmative action case next hits the U.S. Supreme Court, the ruling, whatever it may be, will be more highly contested than before especially considering the recent developments in the courts and the states. In light of the fact that the state courts have began to rule in a way the renders affirmative action a policy of the past, many will argue that if the Supreme Court overturns affirmative action that it will be giving in to political pressure. On the other hand, if the Court continues to rule for affirmative action as it has in the past critics will continue to argue reverse discrimination and implementation of an outdated policy. One aspect is true, affirmative action has clear benefits and clear detriments, but the day will come that affirmative action will be overruled by the Court. One can only speculate that when that day comes, what the benefits and the detriments of the ruling will be.