This paper examines the scope and limitations of affirmative action in U.S. employment law, tracing its origins from Title VII of the Civil Rights Act of 1964 through President Lyndon Johnson's Executive Order 11246. The paper clarifies which employers are legally required to maintain affirmative action plans — primarily federal contractors and government agencies — and explains that such plans do not mandate quotas or preferential treatment. Rather, affirmative action requires employers to structure their policies to prevent unintentional and systemic discrimination. The paper also explores how the corporate embrace of "diversity" as an organizational value has contributed to widespread public misunderstanding of what affirmative action actually requires under federal law.
Ever since the upheavals of the 1960s precipitated a fundamental change in the way the United States regards civil rights, the notion of affirmative action has been regularly discussed and misunderstood throughout the national discourse. Requirements that certain employers enact affirmative action plans began with an executive order issued on the heels of the Civil Rights Act of 1964, Title VII of which specifies that employers may not discriminate on the basis of race, color, religion, sex, or national origin. The executive order requiring that certain employers take affirmative action has subsequently been misunderstood to mean something other than it really does, because this order is nonetheless constrained by Title VII. By examining precisely which employers must maintain affirmative action plans and what those plans require them to do, one may understand the extent and limitations of affirmative action and how it relates to Title VII.
Before considering affirmative action plans themselves, it is useful to examine the legislation in question. The Civil Rights Act of 1964 "establishes a specific prohibition against employment discrimination on the basis of race, color, religion, gender, and national origin" so that "discrimination on these grounds by employers who have 15 or more employees is prohibited in all aspects of the employment process, i.e., job applications, hiring, termination, promotions, training, wages and compensation, and all other terms or conditions of employment" (U.S. Commission on Civil Rights, 1998). This prohibition extends beyond the applicant or employee to those people he or she associates with, so that an applicant or employee may not be discriminated against due to his or her association with a particular group. At the time of its enactment, this extension was especially relevant in the case of interracial marriages.
The enforcement of the Civil Rights Act is performed by the Equal Employment Opportunity Commission, and its jurisdiction applies to all possible employers, whether public or private. The Civil Rights Act only prohibits discrimination and does not include any affirmative action requirements.
Affirmative action requirements came a year later with President Lyndon Johnson's Executive Order 11246, which required "federal contractors to take 'affirmative action' to end discrimination," meaning that only those private companies that contract with the federal government are required to examine their hiring practices and work environments in order to remove any practices or obstacles that might contribute to discrimination (Kelly & Dobbin, 2001, p. 87). This order was amended two years later to include gender. Furthermore, "Section 503 of the Rehabilitation Act of 1973 similarly requires covered federal contractors to engage in nondiscrimination and affirmative action for qualified 'handicapped' individuals" (U.S. Commission on Civil Rights, 1998). In addition to federal contractors, these requirements apply to employment with the federal government itself.
In addition to conscientiously working to avoid discrimination, Johnson's order requires contractors to inform applicants and employees of their rights under Title VII in writing. Affirmative action is monitored and enforced by the Secretary of Labor; in the case of federal contractors, this is done through the Office of Federal Contract Compliance Programs. If federal contractors fail to meet the requirements of their affirmative action plans, punishment can range from the loss of a particular contract to being banned from federal contracting altogether.
"Debunking quotas and preferential treatment myths"
"Formal policies, corporate diversity culture, and misconceptions"
Due to the antidiscrimination language of Title VII of the Civil Rights Act of 1964, affirmative action is altogether less onerous and far less expansive than many have been led to believe. In terms of employment, it only applies to the government itself and federal contractors, and far from requiring quotas or artificially imposed diversity, it simply seeks to ensure that employers carefully structure their work environments and policies so that unintentional and systemic discrimination becomes impossible. Because Title VII prohibits preferential treatment based on race, color, religion, gender, and national origin in addition to prohibiting outright discrimination, affirmative action plans may not include the hiring or promotion of individuals based on any of these factors. In fact, affirmative action does the opposite by requiring the Secretary of Labor to ensure that federal contractors are actively working against both discrimination and preferential treatment. The objective benefits of a diverse workforce have actually contributed to much of the misunderstanding regarding affirmative action, because many people have been misled into believing that private companies' policies regarding diversity are precisely mandated by federal law, when in fact Lyndon Johnson's executive order is far less restrictive than they have been led to believe.
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