This paper examines affirmative action as a proactive strategy for eliminating employment discrimination in both the public and private sectors. It traces the legislative history of affirmative action from the Civil Rights Act of 1964 and Title VII through Executive Order 11246 and the Equal Opportunity Act of 1972, explaining how these laws established employer obligations, created enforcement agencies such as the EEOC and OFCC, and defined penalties for noncompliance. The paper also distinguishes affirmative action goals from court-imposed hiring quotas and argues that, when implemented correctly, affirmative action levels the playing field for all workers without producing reverse discrimination.
Affirmative action has taken on many meanings for different people over the course of time. It can be defined as a proactive approach to removing barriers that prevent any person from having an equal opportunity, barriers that arise from discriminatory practices (Soni, 1999). This approach is aimed at overcoming lingering barriers and disadvantages that exist due to past discrimination (Lee, 1999). Discrimination has been defined as treating persons differently based on classifications that are outside of their individual qualifications and merit (Soni, 1999). In contrast to equal employment opportunity (EEO), which takes a reactive nondiscrimination approach, affirmative action is aimed at finding ways to increase the presence of a diverse workforce (Soni, 1999).
The goal of affirmative action programs is to establish fairness in employment while simultaneously addressing the impact of past discrimination (Lee, 1999). Affirmative action also includes proactive steps to draw qualified persons of diverse backgrounds into the application process (Soni, 1999). These steps may include recruitment strategies, employment incentives, and the advancement of qualified individuals from protected classes. For example, a company may develop a recruitment strategy for attracting female or minority applicants by advertising in journals or publications that target those populations.
In 1964, Congress passed Public Law 82-352 (78 Stat. 241). This civil rights act forbade discrimination by any entity receiving federal funding. Title VII of this act prohibits discrimination on the basis of sex as well as race in hiring, promoting, and firing employees. According to Title VII, it is unlawful for employers to fail to hire, to fire, or to discriminate against any individual with regard to their compensation or other terms of employment based upon their race, religion, sex, or national origin (Carrington, McCue, & Brooks, 2000). Nor is it lawful for an employer to segregate or classify employees in any manner based upon these factors.
This act required that companies cease all employment discrimination, and it addressed not only those companies with federal contracts but employers as a whole (Carrington, McCue, & Brooks, 2000). Title VII also permits employees to sue their employer for discrimination in hiring and promotion practices. Further, it established the Equal Employment Opportunity Commission (EEOC) to oversee compliance and address violations (Carrington, McCue, & Brooks, 2000). The EEOC is the monitoring agency charged with investigating allegations of discrimination and bringing actions in federal court (Carrington, McCue, & Brooks, 2000).
Initially, Title VII applied to private sector employers with 25 or more employees; however, in 1972 legislation reduced this threshold to 15 employees (Carrington, McCue, & Brooks, 2000). Violations carry civil penalties such as remedial hiring policies and back pay awards (Carrington, McCue, & Brooks, 2000). The underlying notion of Equal Employment Opportunity (EEO) is that all individuals ought to have equal access to employment opportunities. EEO is legally mandated for all federal contractors.
Since 1972, the EEOC has had the authority to bring class action suits against violators and has implemented a wide-ranging monitoring system (Skrentny, 2001). Further, since 1966, private sector employers have been required to submit EEO-1 forms annually if they have more than 100 employees, or if they hold a federal contract worth $50,000 or more and employ 50 or more workers. These forms require employers to submit information regarding the representation of diversity in their workplace.
"Order 11246, OFCC, and written plan requirements"
"Penalties, hiring goals versus court-imposed quotas"
"1972 and 1991 acts expand EEOC and remedies"
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