This paper examines affirmative action in the United States, tracing its origins from President Kennedy's executive order through landmark legislation including Title VII of the Civil Rights Act of 1964. It outlines which employers are subject to affirmative action requirements, explains the four core elements of affirmative action plans — commitment, record-keeping, analysis, and outreach — and discusses the consequences of non-compliance. The paper also addresses the persistent controversy surrounding affirmative action, particularly claims of reverse discrimination, and concludes by affirming the ethical responsibility of all employers to pursue workplace diversity regardless of their legal obligations.
"Affirmative action," as we know it today, was first utilized by President Kennedy in an executive order directing contractors engaged by the federal government to ensure that applicants and employees were treated without reference to their national origin, color, creed, or race (Nebraska Advisory Committee, 1979). Affirmative action collectively refers to those policies and actions meant to protect historically excluded and underrepresented groups from discrimination, especially in relation to education and employment (Nebraska Advisory Committee, 1979). In learning institutions, affirmative action refers to admission policies that offer minority groups equal access to educational facilities. Though highly attractive in their original form, affirmative action programs have come under serious criticism, with critics accusing them of reverse discrimination and equating them with quotas meant to artificially bring about proportional representation in the workforce.
Title VII of the Civil Rights Act of 1964 outlaws all forms of discrimination in the employment process and in the terms and conditions of employment (USCCR, 2000). The prohibition covers employers with at least 15 employees, with Section 703(a) making it an illegal practice for any such "employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" (USCCR, 2000). The Equal Employment Opportunity Commission (EEOC) was established and tasked with enforcing the provisions of the Civil Rights Act by investigating any suspected or alleged acts of employment discrimination (USCCR, 2000). Its jurisdiction encompasses labor organizations, educational institutions, employment agencies, private employers, and local, state, and federal entities and their subunits (USCCR, 2000).
The Civil Rights Act of 1964 makes it illegal for employers to discriminate against job seekers and employees from minority groups, thereby affording equal employment opportunity to all. The USCCR (2000) defines equal employment opportunity as "the affirmative practice of affording identical employment opportunities for similarly qualified individuals" (n.pag). Affirmative action programs refer to the positive steps that put equal employment opportunity efforts into practice. They are used by employers to promote equal employment opportunity, and are usually "established to identify, recruit, promote, and/or retain qualified women, members of minority groups, and people with disabilities in employment opportunities" (USCCR, 2000). To this end, affirmative action programs encourage employers to show preference for employees from minority groups and assist in correcting statistical imbalances in industries that have traditionally been unrepresentative (Nebraska Advisory Committee, 1979). The legal profession is one of the most significant target areas for affirmative action programs, having been dominated by white males for most of the country's history.
Affirmative action obligations are reviewed under Title VII of the Civil Rights Act of 1964 in the case of unions and public and private employers; under Title VI in the case of private or state recipients of federal funds; and within the Equal Protection Clause of the Fourteenth Amendment in the case of government agencies (Nebraska Advisory Committee, 1979). President Lyndon Johnson's Executive Order 11246 expanded the coverage of affirmative action programs to include private and state contractors receiving federal funds (USCCR, 2000). Compliance by such contractors is monitored and enforced by the Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor (USCCR, 2000).
Laws such as the Americans with Disabilities Act and Title VII apply not only to local but also to state governments and a number of other entities — including employment bureaus and employers with 15 or more employees (Bennett-Alexander & Hartman, 2012). Private organizations with 20 or more employees are required to participate in affirmative action programs under the Age Discrimination in Employment Act (Bennett-Alexander & Hartman, 2012). Executive Order 11246 requires government contracting agencies "to take affirmative action to ensure that applicants are employed and that employees are treated in employment without regard to national origin," sex, race, or religion (USCCR, 2000). The Rehabilitation Act of 1973, for instance, requires such contracting agencies to engage in affirmative action for individuals with disabilities (USCCR, 2000).
Organizations with fewer than 15 employees are not covered by federal anti-discrimination laws and are therefore not subject to affirmative action programs, in part because their small size is likely to skew results and make compliance difficult to demonstrate (Bennett-Alexander & Hartman, 2012). Nonetheless, states typically have rules governing these smaller organizations, and it is therefore advisable for every employer to avoid employment discrimination — or any perception of it (Bennett-Alexander & Hartman, 2012).
Affirmative action, whether voluntary or mandatory, comprises four main elements: commitment, record-keeping, analysis, and outreach (Nebraska Advisory Committee, 1979). Any organization that meets the threshold for engaging in affirmative action, whether in the private or public sector, must develop a written affirmative action plan (AAP) and submit it to the relevant enforcement agency (Nebraska Advisory Committee, 1979). Organizations should also review their AAPs whenever questions or complaints arise. This is referred to as mandatory affirmative action (Nebraska Advisory Committee, 1979). Voluntary affirmative action occurs when a firm not subject to affirmative action under federal standards nonetheless uses federal guidelines to develop its own plan (Nebraska Advisory Committee, 1979).
Commitment: Equal employment opportunity is the foundation of affirmative action. Every organization must assert its commitment by including the designation "EEO/AA" in its bulletin board postings, job vacancy advertisements, and employee handbooks (Nebraska Advisory Committee, 1979).
Record-Keeping: Organizations must maintain records reflecting their employment practices, applicant and employee characteristics, and recruiting activities (Nebraska Advisory Committee, 1979). These records help organizations assess whether they are attracting a diverse applicant pool (Nebraska Advisory Committee, 1979).
"Four core components: commitment, records, analysis, outreach"
"Reverse discrimination claims and statutory rebuttal"
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