Avoiding Reverse Discrimination While Making a Difference

Affirmative Action Planning

Affirmative Action

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) All toll, roughly 1.6 million women were plaintiffs in the case, all of whom were employed in some capacity by Wal-Mart from the time of December 16, 1998; and 3) Wal-Mart is a cultural leader in the retail space as the company holds the position of biggest private employer in the United States (Spangler, 2008).

A key factor in the Dukes case is that the employees believed they were discriminated against as women because the Wal-Mart practice of allowing absolute discretion by local manager to determine pay, training opportunities, and promotions established conditions under which rampant discrimination could -- and apparently did -- occur (Aron, 2011). Women employees testified that they were targets of exasperating and blatant discrimination that often came in the form of ignorant and discriminating remarks that alone could trigger individual legal action (Aron, 2011). Notably, Justice Ginsburg observed that individual damage claims would not have an impact on the sizable, institutionalized gender discrimination practiced by Wal-Mart, citing this data: "Women fill 70% of the hourly jobs in the retailer's stores, but make up only 33% of the management employees… The higher one looks in the organization, the lower the percentage of women" (Aron, 2011). An important aspect of the Dukes case is that it clearly signals to the retail industry that women specifically, and the public in general, are giving considerable attention to the issue of gender discrimination in the workplace. Private employers can no longer presume to have a buffer against class action legal suits regarding job discrimination (Spangler, 2008). Dukes also provides a clear view of the power social institutions have on discrimination in the workplace; the influence of a pro-business Supreme Court was unequivocally demonstrated in this case, one in a series of decisions with social transformative ramifications (Aron, 2011).

Waypole and Godfrey (2012) provided advice and guidance to recruiters in their brief article that emphasized equality and inclusion as substantive tenets of modern recruitment practices. Their words to employers was to always hire the most suitable, qualified applicants without regard to disability, race, or sex (Waypole & Godfrey, 2012). When people from protected classes or historically marginalized groups are business owners, it might seem that they escape or avoid much of the discrimination faced by other minorities or women and that Waypole and Godfry (2012) warned about in their guidelines. One of the primary battlegrounds for affirmative action has been in union halls, and ancillary to this are the contractual arrangements made with small- and medium- sized businesses owned by minorities and women. Balchflower (2007) wrote extensively about affirmative action in the construction industry, and examined the changes in the construction arena since the 1980s. Of particular note is Balchflower's (2007) extension of the research into the area of credit granted to small businesses. The rate of discrimination regarding credit granting to self-employed minorities is quite high, and includes paying higher rates of interest than similarly situated white males (Balchflower, 2007). According to Balchflower (2007), the many public sector procurement programs designed to eliminate discrimination from contracting have had very little beneficial impact on women-owned and minority-owned businesses. The 1989 Supreme Court Cronson case was a watershed legal action that diluted the clout and protections previously provided by these procurement programs (Balchflower, 2007). He concluded that there has been a widespread and deepening "deterioration of the relative positions of African-Americans, white females, and Asians compared to white males both nationally and in construction in the years after the Cronson decision" (Balchflower, 2007). A rather startling finding of Balchflower's (2007) was that when small business owners applied for business credit card through automated processes, there was no evidence of any race effects. Balchflower asserted that this finding supported his earlier work (Balchflower, et al., 2003, Balchflower & Wainwright, 2005) that minority-owned and black-owned firms were considerably more likely to be denied loans and to experience higher interest rates than were white males.

A number of states have formalized the procurement processes for the public sector construction, with Proposition 209 in California serving as one of the more exacting models for policy (Marion, 2009). Proposition 209 forbids consideration of gender or race when awarding contracts that are funded by California state funds, but does not apply to federally-funded construction projects (Marion, 2009). The two different groups that resulted from this inadvertent partitioning provided a valuable comparison as the federal projects were still characterized by preferences then disallowed in the state-funded construction projects in California (Marion, 2009). An important finding of Marion's (2009) was that fraudulent front companies substantively reduced the direct positive benefits to minority business owners. The work of Blanchflower and Wainwright (2005) supported this theory and underscored the vulnerability of the procurement protection programs to fraud. Marion (2009) further studied affirmative action as it related to minority-owned and women-owned businesses in the highway procurement and construction. Marion's (2002) is an important reminder of the potential impact of the utilization of disadvantaged business enterprises (DBEs) as the scope of public sector highway and related projects is substantive. Indeed, Marion (2002) refers to the census conducted in the industries in 2002, which indicate, "72.6% of the revenue earned by firms in the highway, street, and bridge construction industry was from government-owned projects" (p.899). From this, it is apparent that a reciprocal effect is likely in the relation of public procurement policy and the way business is conducted with DBEs in the highway construction industry. While Marion (2009) found that the costs were higher for contracting under conditions of affirmative action, the study acknowledges that positive aspects external to the construction costs alone accrue. Indeed, increased minority employment, self-employment, and entrepreneurship are important benefits to maintain as future research is conducted (Marion, 2009).

Bates (2009) delved deeper into the policy problem by examining detailed data about spending and perspectives of workers in the public sector procurement sector. A primary objective of Bates' (2009) research was to learn how minority business enterprises (MBEs) were affected by preferential procurement policies. One research question Bates (2009) explored had to do with the sense that the spending occurring as a result of targeting MBEs is a form of reverse discrimination. The research indicates that the objective of establishing a level playing field is elusive, and driven by regulatory policy and subsequent legal actions, the procurement policies that are designed to provide preferential treatment to minority business enterprises often fall short of this lofty goal (Bates, 2009). Bates' (2009) findings are not astonishing -- as they clearly support the work of others engaged in preferential procurement policy -- but they are stark. Bates (2009) confirmed that these procurement policies may, in fact, result in only very small economic impacts at the local level, and that only minimal assistance to minority business enterprises is achieved.

In 1972, a Revised Order No. 4 from the Secretary of Labor, followed the Executive Order, and directive form the Department of Health, Education, and Welfare about implementation of the affirmative action regulations arrived on higher education campuses (Fullinwider, 2013). With the construction industry functioning as testing grounds for procurement policy, the directives borrowed the apparatus of that sector (Fullinwider, 2013). The emphasis in the policy implementation language was on plans, goals, timetables, and even underutilization analyses (Fullinwider, 2013). Soon a uniform system wit a one-size-fits-all mentality was imposed on all types of institutionalized endeavor. (Fullinwider, 2013) Universities and colleges were not exempted from these policy changes, and they soon became a hotbed of contention that revolved around, inter alia, affirmative action (Fullinwider, 2013). In the beginning stages of policy implementation, prior to Revised Order #4, very little impact was felt on the established order of things related to higher education (Fullinwider, 2013). Representation became a watchword, but increasing representation came with all manner of impractical steps that would seem to increase diligence without producing any noticeable change (Fullinwider, 2013). But when women were included in the protected classes under Revised Order #4, the intangible became tangible as women were earning advanced degrees at rapid and robust rates (Fullinwider, 2013). The parallels of federal contractors being forced to achieve proportional representation and university search committees hiring proportional numbers of women faculty were sobering to those who had spent their lives in protected ivy-covered towers (Fullinwider, 2013). Sides were rapidly chosen, with defenders and offended being equally vehement (Fullinwider, 2013).