Affirmative ActionAffirmative Action: Reverse Discrimination?
Affirmative Action is a hot issue in the United States, with wide differences of opinion over the correct way to expand opportunity for people who have historically been discriminated against. With the philosophical difference behind the legal and political tensions is deep. One side wants a total rollback of affirmative action programs, making individual merit the only criterion for hiring and promotional considerations. While the other extreme wants affirmative action to be pushed until the racial makeup of all professions mirrors the racial makeup of US society exactly. While both these sides are to the greatest ends of the argument there needs to be an approach to come up with a medium. This could include laws to force companies to vigorously recruit and develop minorities for professional and managerial jobs. However, there should not be any outright quotas, which reserve a certain number of slots for particular minority groups. This will cause resentments and constitutional obstacles down the road. The objective here is not to do away with affirmative action in one sweep, rather to seek out strategies to help promising minorities and match them with opportunities they have rightfully earned and deserve.
Now, what does the law say? Although Title VII has an affirmative action component part of it, most regulations stem from a requirement imposed by Executive Order 11246. There are a lot of misconceptions about affirmative action and what laws companies actual have to follow. One is that all companies are required to adhere to the laws under affirmative action, this is not the case. Executive Order 11246 states that once a company enters into a contract with a federal governmental agency that exceeds $10,000 it must abide by the affirmative action rules and regulations. These regulations include, but are not limited to, the following: to post in a conspicuous place, available to all applicants, provisions of the nondiscrimination clause; include in contractor’s advertisements that all qualified applicants will receive consideration without regard to race, color, religion, gender, or national origin; include statements of these obligations to all subcontractors; and furnish all information and reports to the Secretary of Labor for purposes of investigation to ascertain compliance with the executive order and its regulations. In addition to the above regulations if a corporation enters into a contract of $50,000 or more additional requirements are put in place. A Corporation must develop a written action plan within 120 days of the beginning of a governmental contract. They must also perform a workforce analysis, which must indicate how many women and minorities are in job categories ranging from unskilled workers to managerial employees. These are the basic rules and regulations companies and corporations must follow in order to be within the compliance of the law.
There have been several major court decisions that have helped define the application of the statutes and regulations. One of the biggest and earliest cases was that of Regents of the University of California v. Bakke. This case was not against an individual’s employer rather against a university. Bakke applied to Davis for two consecutive years but was rejected on both occasions. In both years, applicants with lower scores than Bakke were admitted due to a special admit program. Davis had a program that says applicants who are not of minority status are totally excluded from a specific percentage of the seats in the entering class. When the State’s distribution of benefits hinges on the color of a person skin, that individual is entitled to a demonstration that the challenged classification is essential to promote a tangible state interest. For this reason the court’s judgment was that Davis’ special admission program was invalid under the Fourteenth Amendment. Another case, that did deal with the employer-employee relationship, was United Steelworkers of America, AFL-CIO v. Weber. In this case a white employee sued because his employer adopted a voluntary affirmative action plan reserving for black employees fifty percent of the openings in a training program. Because the company had put in place a voluntary program to eliminate an apparent racial imbalance the Supreme Court held that the program was permissible and did not unnecessarily trample the rights of white employees. These are just a couple of the more prominent cases that have help set the standards for future cases involving affirmative action.
There are several regulations in place that penalize corporations for not following affirmative action rules and regulations. These penalties for noncompliance can range from a slap on the hand to major penalties and fines. The publishing of the names of nonconforming contractors is a minor penalty. Some other more serious penalties are as follows: recommending proceedings be instituted under Title VII; the Attorney General bringing suit to enforce the executive order; recommending the Department of Justice that criminal proceedings be initiated; canceling, terminating or suspending the contract; and debarring the contractor from entering into future government contracts. These penalties were enforced during the case of Local, 28, Sheet Metal Workers v. E.E.O.C. The court imposed that a 29% nonwhite membership goal be meet by a certain date and a $150,000 fine be placed in a fund intended to expand nonwhite membership in the apprenticeship program.
In order for these penalties to be avoided there are several steps management should take to be in compliance with the law. First, ensure that hiring, promotions and training are open and fair to all that apply. Work with both unions and employee groups if an affirmative action plan is to be but in place to get early approval from all constituencies affected. Make sure voluntary plans meet judicial requirements. So all employees understand the plan, provide periodic training explaining the purpose and the intent of the plan. Training is the easiest way to deter a lot of misconceptions that employees have about affirmative action. If affirmative action is handled in the proper way everyone, minorities, females and whites, wins in the long run.