Affirmative Action and Equal Employment Opportunity Policy

Introduction: HRM and the Affirmative Action Question

Human Resource Management's role is critically important in terms of equal opportunity for employment, and specifically in regard to affirmative action in the hiring process as well as in other areas of employee relations within organizations. Affirmative Action was very important and greatly needed at one point in history; however, in today's highly globalized and integrated society — characterized by diversity — Affirmative Action has become, rather than a force for equity, a source of inequity among individuals in the organization. It does so by making specialized provisions that heighten opportunity specifically for individuals of minority racial and ethnic backgrounds, often at the expense of equally or more qualified candidates from other groups.

The work of Rogers (2008), published in a UWire column entitled "Affirmative Action Policy is Outdated, Offensive," cites Elliot Larsen's description of affirmative action as "the attempt to deal with malignant racism by instituting benign racism" (p. 1). Rogers explains that affirmative action is in practice "a policy that requires active measures to be taken to make certain that blacks and all minorities enjoy the same opportunities in all aspects of life — a policy used mostly in employment and school admissions processes. But when race becomes the ultimatum in admissions decisions, everybody has a right and a need to question these policies" (Rogers, 2008, p. 1).

Background and Significance

While some argue that this form of favoritism is "overdue compensation for years of slavery," Rogers asks, "But since when has liberty and justice for all meant repentance for our ancestors' pasts?" (2008, p. 1). Reverse discrimination is often dismissed when raised, yet a notable case reached the U.S. Supreme Court involving a university law school accused of reverse discrimination in its admissions policies. The school was alleged to have granted admissions on the basis of a point system designed to promote diversity and interracial interaction. When the verdict was returned, it effectively supported the use of race "as a factor in admissions decisions" (Rogers, 2008, p. 1). Rogers asks whether a "more fully integrated society" should be "more integrated on the basis of ideas and cultures rather than color," arguing that society should "reward hard work, discipline and achievement" rather than "judge students because of their race, rewarding some and punishing others" (2008, p. 1).

The significance of this problem lies in the fact that there are highly capable, well-educated, trained, and experienced individuals being passed over for employment on the basis of nothing other than their racial profile. In today's context, the individual who faces discrimination is increasingly the person from the majority race, as special opportunities are specifically reserved for those of minority races. Affirmative Action in today's world is no longer necessary — at least not in its original form. This paper aims to demonstrate just how outdated Affirmative Action has become and how lacking in relevance to the contemporary organizational workplace it really is.

The U.S. Department of Justice — Office of Justice Programs states that Affirmative Employment Programs cover "a wide spectrum of activities involving affirmative action planning for the recruitment, hiring, placement, training, and advancement of historically underrepresented and/or underutilized groups within the workforce. These activities focus on enhancing the representation of American Indians/Alaskan Natives, Hispanic-Americans, Asian-Americans/Pacific Islanders, African-Americans, persons with disabilities, females, and Vietnam-era veterans at all levels within the agency" (U.S. Department of Justice — Office of Justice Programs, 2009). This is accomplished through four programs:

(1) Affirmative Employment Program (AEP) Plan for Minorities and Women. An annual report update prepared pursuant to Section 717 of Title VII of the Civil Rights Act of 1964, as amended, and the EEOC's Management Directive 707, as amended. Program objectives are to target occupations in the agency for affirmative action efforts; to monitor the hiring, advancement, and training of minority and female groups that are underrepresented in targeted occupations; and to examine any barriers that may hinder their recruitment, hiring, placement, and promotion.

(2) Federal Equal Opportunity Recruitment Program (FEORP) Plan. Prepared annually and administered pursuant to Section 310 of the Civil Service Reform Act (CSRA) of 1978 and the Office of Personnel Management's Federal Personnel Manual, Chapter 720. This plan sets forth the objectives and initiatives the agency will undertake through affirmative recruitment to eliminate underrepresentation of minorities and females in the workforce.

Literature Review

(3) Affirmative Employment Program Plan for Hiring, Placement, and Advancement of Disabled Individuals. Prepared annually in accordance with Section 501 of the Vocational Rehabilitation Act of 1973, as amended (29 U.S.C. § 791); Reorganization Plan No. 1 of 1978; Executive Order 11478 (34 F.R. 12985, August 10, 1969), as amended by Executive Order 12106 (44 F.R. 1053, December 30, 1978); and EEOC's Management Directive 711. Federal agencies must ensure that qualified disabled individuals have equal opportunity to be hired, placed, and advanced in federal jobs. Affirmative employment must be an integral part of ongoing agency personnel management programs. Agencies should employ persons with disabilities across a broad range of grade levels and occupational series, and agency policies should not unnecessarily exclude or limit persons with disabilities through job structure, design, architectural, transportation, communication, procedural, or attitudinal barriers.

(4) Affirmative Action Program Plan for the Recruitment and Hiring of Disabled Veterans. Prepared annually pursuant to Section 403 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (38 U.S.C. § 4214) and 5 CFR Part 720, Subpart C. This plan sets out the agency's objectives to ensure equal employment opportunity for all disabled veterans, especially those who are 30% or more disabled (U.S. Department of Justice — Office of Justice Programs, 2009).

The work of Holmberg (2008), "Affirmative Action as Outdated as Discrimination," states that universities in the United States are operating under policies that masquerade as affirmative action but in reality result in increased abrasive racial encounters and heightened "racial tension" (p. 1). Holmberg states that affirmative action, which was "originally intended to level the playing field, has become a constantly misused practice." As an example, a white student named Kevin Mulloy attempted to apply for a job with an African-American Affairs office on campus but was turned down before he could even receive an application because he had no African-American heritage. The job posting, listed on the university's own website, explicitly stated that applicants needed only to have work-study eligibility and be African-American (Holmberg, 2008, p. 1).

Burke and Cooper (2005), in Reinventing Human Resource Management: Challenges and New Directions, state that diversity management is "necessarily inclusive, and requires efforts across HRM responsibilities and in all aspects of organizational functioning," and that "the conceptualization of diversity management as a comprehensive set of processes is now recognized" (Burke and Cooper, 2005). While Affirmative Action and EEO programs were attempts to increase the presence of underrepresented groups, "unfortunately many of these practices were symbolic or found to be illegal or improperly implemented" (Burke and Cooper, 2005). Although these programs did positively affect the "presence and pay of underrepresented groups," Roosevelt Thomas (1990) argued that "affirmative action as an independent approach to workforce diversity was limited and outdated" (cited in Burke and Cooper, 2005).

Thomas held that changes to the landscape meant that "the realities facing us are no longer the realities affirmative action was designed to fix" (Thomas, 1990, p. 107, cited in Burke and Cooper, 2005). While the emergence of diversity management was perceived by some as merely a fad, Ivancevich and Gilbert (2000) noted that it clearly was not — "diversity management has swelled to a $300 billion a year industry" (cited in Burke and Cooper, 2005).

Kepple (1995), in "The Fallacy of Affirmative Action," argues that "the time has simply come to end the existence of a program that began with the best intentions but now appears more paradoxical to the concept of America as a melting pot: a multicultural society in which we have 'equality for all, and preference for none.'" Kepple questions whether affirmative action is truly achieving this and concludes that the answer is no. He argues that affirmative action rests on the false assumption that all white men have achieved tangible advantages from the color of their skin alone, and that all non-whites are victims of this group — a simplistic binary that distorts the complexity of social reality (Kepple, 1995).

Elmuti (1996), in "Revising Affirmative Action and Managing Cultural Diversity Challenges in Corporate America," states that management of cultural diversity in the workplace, combined with attempts to abolish affirmative action, are "emerging as some of the most important issues facing American business." Affirmative action was born during the Civil Rights Movement in an effort to reverse the effects of generations of racial discrimination, with the concepts and laws governing it later broadened to include women and other traditionally disadvantaged groups. It is federally mandated law to combat discrimination. Diversity management, on the other hand, is "an organizational effort that aims to modify organization standards, procedures, and management practices that hinder creativity, productivity, and advancement of employees" (Elmuti, 1996).

The work of W. Ralph Eubanks (2009), published in The American Scholar, notes that the writings of Martin Luther King, Jr. demonstrate that while King "embraced affirmative action," he also believed it "should help economically disadvantaged people of both races." King proposed a Bill of Rights for the Disadvantaged — not a Bill of Rights for Blacks — noting that "while Negroes form the vast majority of America's disadvantaged there are millions of white poor who would also benefit from such a bill" (Eubanks, 2009, p. 1).

Eubanks further notes that conservatives point to King's famous assertion that "people should be judged by the content of their character rather than by the color of their skin" as evidence that King would have opposed affirmative action (Eubanks, 2009). Eubanks also cites civil rights strategist Bayard Rustin, whose personal papers are housed at the Library of Congress, writing that "as in any period of significant change, the potentials of the new situation cannot be realized until we are liberated from the modes of thought and action of the past. The strategies of the civil rights period were once appropriate but when outdated they become roadblocks to future progress" (cited in Eubanks, 2009). Eubanks ultimately believes affirmative action should be "retooled… to providing a path for people of all races into the middle class" (Eubanks, 2009).

Gutman (2000), in EEO Law and Personnel Practices, provides the following overview of outdated affirmative action-era practices that have since been addressed or invalidated:

State Protection Laws — State laws prohibiting women from dangerous work (e.g., heavy lifting) are unconstitutional.
Height/weight requirements — Excluding candidates on height/weight criteria is as difficult to defend as excluding all members of one gender.
Pregnancy discrimination — Discrimination in medical benefits for pregnancy was outlawed by the Pregnancy Discrimination Act of 1978.
Retirement benefits — Women may not be forced to pay more or receive less because they are statistically expected to live longer.
Sex-plus discrimination — Exclusion based on motherhood is facially discriminatory if parallel exclusions do not apply to fatherhood.
Fetal protection — Prohibiting fertile women from certain jobs based on fetal safety does not satisfy the BFOQ defense (Gutman, 2000).