Inception Affirmative Action Has Been

¶ … inception affirmative action has been the basis of considerable debate. The program was an ambitious attempt at overcoming the U.S.'s long history of racial and sexual discrimination by equalizing the benefits for those who had been denied opportunities. Unfortunately, the program may have actually contributed to increasing the divisions that had characterized American society and there is a strong argument that the playing field for those for whom affirmative action was initiated is still unbalanced.

The affirmative action movement grew out of the civil rights movement of the early 1960s. The purpose of affirmative action was to provide special consideration to minorities and women in regard to employment, educational admissions, and business contracts. The affirmative action program does not apply in all situations. In its simplest form, affirmative action applies to employers and agencies with more than 50 employees or students and who have contracted with the federal government in some form and where the contract involves goods or services in excess of $50,000 or more. The stated goal of such programs was to increase diversity by encouraging the hiring, admission, and contracting of women and minorities. In time, the theory was that by providing the target groups with increased opportunities would eventually result in equalization of the number of minorities and women in the market place.

In practice, affirmative action programs require that employers, admission officers, and persons with responsible for granting government contracts to grant a preference to a woman or minority in all situations where two similarly qualified applicants were applying for a job, admission to a college program, or for a government contract. Theoretically, such programs were not supposed to operate under a quota system or to provide preference to applicants that were not qualified.

As stated earlier, affirmative action has been the source of considerable political debate in the United States. On the right, affirmative action has been viewed as a poorly thought out concept that should have never been enacted and that has never accomplished what it was intended to do. The Right's view on affirmative action has been bolstered by U.S. Supreme Court decisions that have limited the application of the concept and by the passage of legislation in several states that have either abolished or limited its use. On the left, support for affirmative action remains strong but is weakening as there is increased evidence that the program has not accomplished what it was intended to do and that the resulting backlash has caused women and minorities to reconsider the overall benefits of the program. Fifty years after the initiation of the program, the reality is that women and minorities continue to hold positions that pay lower salaries and that open discrimination against such groups continues in the market place.

For many, affirmative action is too often confused as being a part of Title VII of the Civil Rights Act of 1964 ( the Civil Rights Act of 1964). Although Title VII has an affirmative action component in its statutory language the tenets of affirmative action actually arise from the requirements imposed by Executive Order 11246 and its subsequent amendments (Executive Order 11246, 1965). It was this Executive Order that required all entities doing business with the federal government to agree that, by doing so, that they would not discriminate on the basis of race, color, religion, gender, or national origin but the Executive Order went further and required that such entities agree to take steps to ensure adequate representation where it is found that there is an underrepresentation of women and other minorities. The terms of Title VII prohibit discrimination but it does not impose affirmative duties. Therein lays the essential difference affirmative action as dictated by Executive Order and the statutory provisions of Title VII.

Under the terms of the Executive Order, which is enforced by several offices of the federal government but enforced against employers through the Department of Labor's Office of Federal Contract Compliance Programs (U.S. Department of Labor, 2012), entities that fail to comply are debarred from further participation in government contracts and funding. Affirmative action requires that entities must develop a written affirmative action plan and that such plan be put in place within120 days of the entity beginning its agreement with the federal government. The required contents of such plans are highly detailed and governed by the rules set forth in the Code of Federal Regulations and findings of non-compliance in the case of employers are administered through the Department of Labor. The sanctions available include publishing the names of non-compiling entities; recommending that proceedings be instituted under Title VII; or requesting that the Attorney General bring suit to enforce the terms of the Executive Order; canceling, terminating, or suspending the agreement with the entity; or debarring the entity from further participation with the government. Each of the sanctions is considered as a last resort and compliance officers are encouraged to negotiate a settlement short of imposing any sanctions.