Affirmative Action in Hiring Affrimative

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 Civil Rights Act of 1964

had resulted in courts being able to provide affirmative action as a remedy for employees against employers that violated the Act (Fullinwider, 2009). During this time federal courts were enforcing the Civil Right Act against discriminating companies, unions, and other institutions (Id). As courts continued to enforce affirmative action, the public became more and more resistant of it wondering if it was really accomplishing what it set out to accomplish, or whether the effects perpetrated reverse discrimination. One of the first Supreme Court cases to challenge affirmative action was the case of University of California Regents v. Bakke (1978).

In the Bakke case, the petitioner challenged the special admissions procedures of the Medical School of the University of California at Davis (Bakke, 1978). The program was designed to ensure the admission of a certain number of students from certain minority groups (Id). Since the program opened, there had been no special programs to ensure that minorities were fully represented in the program (Id). The program administrators created a program designed to increase the representation of "disadvantaged" students in ea h medical class which included a separate admissions system (Id). The new system mandated that a minimum number of "disadvantaged" students be admitted with each incoming class (Id). In 1971, the incoming class was 100 students -- three of them were Asian-American and none were African-American (Id).

Petitioner Bakke applied to the medical program for the years of 1973 and 1974 (Id). He achieved a satisfactory admissions score, and the admissions committee categorized him as a very desirable candidate (Id). However, the committee denied his application for both of the years he applied (Id). Mr. Bakke challenged the program based on his Equal Protection Rights of the 14th Amendment to the U.S. Constitution

(Id).

The admissions program was originally declared invalid in the California Supreme Court, but the U.S. Supreme Court reversed this decision on appeal (Id.) the U.S. Supreme Court reasoned that there was no way that the program could achieve its objectives of minority representation and counteracting past discrimination without a program that used race conscious measures. The Court also deferred to the "academicians and the specialists" to determine the best method of administering the programs they employ -- commenting that the administration and management of educational institutions are beyond the competence of judges.

With this ruling the Court upheld legality of affirmative action. In considering the reasoning behind the Court's upholding of the highly debated principle, the rationale was that to remedy past discrimination, a program that is race-based must be put into effect. Clearly, the Court was concerned with becoming intertwined in the daily administration of academic programs, and the same would have likely held true for the workplace.

The Bakke case had two primary effects in the workplace. It gave the employers the power to enact programs that it felt were necessary in order to promote diversity in the workplace without the risk of being sued for discrimination or having their program being declared invalid by the courts. One interesting observation regarding the history of affirmative action programs in the workplace was that the traditionally government enforced programs and were not applicable against private employers under the U.S. Constitution and the Civil Rights Act. What this meant at that time and for employers today is that affirmative action policies under the Civil Rights Act of 1964 did not mandate participation from private companies.

As such, private companies were not required to promote diversity Still, the question remains that if private employers were and are not bound by the affirmative action policies does this truly benefit the company? In other words, does the benefit of having freedom in the hiring process outweigh the burden of promoting diversity in the workplace.

This issue will be addressed in detail later in this essay.

The second effect that the Bakke case had was that it gave minorities and women opportunities to obtain employment in the workplace in positions that they had traditionally been denied as a result of past discrimination. Undeniably, the history of oppression in United States history has resulted in institutionalized discrimination against minorities and women and therefore, affirmative action's goal was to remedy subjugation of such and of women (Almanac of Policy, 1995). The holding in the Bakke case gave employers and minority and women employees confidence that these effects could be remedied. Once the Bakke case was decided and affirmative action programs went into full affect, the discrimination that permeated the workplaces began to diminish as the following examples demonstrate.

In the State of Alabama case above, the district court ordered that one qualified black trooper or support staff member be hired for every white trooper until 25% of the force was comprised of blacks (Almanac of Policy, 1995). By 1974, 25 black troopers and 80 black support personnel had been hired (Id).

In the San Francisco Police Department case, an affirmative action program was ordered as judgment in a lawsuit, and by 1985 the number of women new hires had increased to 14.5% (Id).

In addition, a federal court review of the San Francisco Fire Department in 1987 resulted in the implementation of an affirmative action program that increase the number of African-Americans from 7 to 31, the number of Hispanic-Americans from 12 to 55, the number of Asian-Americans from 0 to 10, and women were hired as firefighters for the first time by the Department under this program (Id). As these examples demonstrate, affirmative action programs yielded substantial results in the workplace not only for racial minorities, but also for women and almost any program during this period was upheld by the courts. While these results appeared to be positive in that they promoted diversity and resulted in additional employment opportunities for ethnic minorities and women, the reality of the situation which has been the persistent challenge of affirmative action has been the reverse discrimination argument -- while affirmative action alleviated discrimination against ethnic minorities and women, it accomplishes this by discriminating against white Americans. Affirmative action was challenged under this principle in the Bakke case and was continuously challenged in the decades of the 1980s and 1990's under the same principle. As the challenges came, the courts moved further away from its decision in Bakke as a 2009 ruling by the Court demonstrates. "The Court ruled in 5-4 decision that the federal [Civil Rights Act of 1964] law could be used to ban discrimination against whites" (Kirkland 2010).

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