Practices that are intended to promote opportunity for members of historically disadvantaged classes are referred to as affirmative action. Although most often associated with promoting opportunities for candidates of color and women, affirmative action may assist any disadvantaged group. For example, some affirmative action programs benefit people with disabilities or military veterans.
Affirmative action is most common in employment, government contracts, education, and business. In the employment field, the federal, state, or local government might implement affirmative action measures, either when the government acts as an employer or when the government contracts with, or provides grants to, private business. Private employers may also adopt their own affirmative action programs.
Affirmative action measures run the gamut from steps to make sure that candidates from historically disadvantaged groups have an equal opportunity to contend for jobs and promotions (such as posting jobs in areas with high numbers of minority job seekers, developing outreach efforts to find qualified female candidates, and supporting training programs for candidates or employees in protected categories) to giving members of historically disadvantaged classes an edge in employment decisions by taking gender, race, or another protected characteristic into account as a factor in the selection process.
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The Controversy Over Affirmative Action
Some affirmative action measures don’t take race, gender, or other protected characteristics into account in the selection process, but seek only to widen the field of qualified applicants through outreach and search efforts. When the employer in this type of program reaches the point of actually selecting candidates, the process is color- and gender-blind. These measures have not met with much legal or social resistance.
However, measures that give an edge to particular applicants based on race, gender, or another protected characteristic have historically been more controversial. These measures might include:
- using race as a “plus” factor in hiring (so that an African American applicant would be preferred over a white applicant with the same qualifications)
- using lower cutoffs for test scores for minority or female candidates, or
- setting hiring goals or quotas (that 30% of the workforce in a traditionally male profession be female by 2020, say).
Measures like these provide a benefit to members of one group that comes at the expense of members of another. Proponents of affirmative action argue that this is fair and appropriate, given our country’s long history of discrimination, and is the only way to create truly equal opportunity for groups that are disadvantaged. Opponents argue that discrimination is unfair, no matter who it helps or hurts, and that (primarily) white men should not have to pay the price for historical discrimination.
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Affirmative Action for Federal Contractors
Executive Order 11246 requires certain federal contractors to adopt affirmative action programs. Among other things, contractors must analyze their workforce, target any areas where members of protected groups are underrepresented, and come up with specific goals to help address the problem. Contractors must make good faith efforts to achieve these goals, which might include outreach and recruitment programs, training, and other strategies to expand the pool of qualified candidates. Executive Order 11246 is administered and enforced by the Office of Federal Contract Compliance Programs (OFCCP).
Affirmative Action in Other Government Settings
When a government uses affirmative action as an employer, it is subject to the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. When governments make distinctions based on race, the Equal Protection Clause requires them to have a compelling interest that is served by the distinction, and the means chosen must be narrowly tailored to further that interest.
The U.S. Supreme Court has held that a desire to remedy the effects of societal discrimination is not a sufficient justification for race-based classifications, nor is a desire to provide nonwhite role models. Instead, a government entity that seeks to implement affirmative action must show that it has a history of past discrimination or perhaps that it has been a passive participant in societal discrimination, which the affirmative action program seek to remedy.
Even if a government entity has a sufficient factual basis to adopt an affirmative action plan, the plan might still be illegal unless it is narrowly tailored to meet those goals. For example, a plan that lasts longer than necessary, confers benefits on people outside of the group that has been discriminated against (for example, benefits all minorities when there is proof of discrimination only against African Americans), or sets goals that go beyond the proven discrimination might be struck down.
Affirmative Action by Private Employers
Private employers are not subject to the Equal Protection Clause, but their affirmative action plans must meet the requirements of Title VII. The Supreme Court has developed a three-part test to evaluate the legality of private affirmative action:
- There must be a factual basis (of discrimination) for the plan. The employer doesn’t have to admit that it discriminated in the past to adopt an affirmative action plan (although such an admission would meet this requirement). For private plans, statistical evidence might also be sufficient, if it shows a “manifest imbalance” in traditionally segregated fields or it would be sufficient to allow the group that would be benefited by the plan to bring a discrimination lawsuit.
- The plan must not “unnecessarily trammel” the interests of employees who don’t benefit directly from it. For example, a plan by which the employer would lay off workers to make room for a more diverse workforce would be more detrimental to the laid off workers than a plan that addressed recruitment or hiring.
- The plan must be temporary. Affirmative action measures may last only as long as necessary to undo the effects of past discrimination.
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Need Legal Help?
If you believe your employer has denied you the benefits of its affirmative action program, or you believe your employer's affirmative action program is illegal, you may want to consult with an employment lawyer. The legal rules that apply to affirmative action programs are evolving, as the Supreme Court and other courts decide affirmative action cases. An experienced attorney can assess your employer's program and help you figure out the best way to proceed.