What is Affirmative Action?
In a general sense, affirmative action refers to the policies and practices within a government and/or organizations that seek to ensure equal opportunity for all persons regardless of race, color, religion, sex, or national origin. In more specific terms, it often connotes the application of quotas or other benchmarks based upon gender and/or race to ensure that underrepresented groups are provided access to educational, governmental, and/or employment opportunities that would not be made available to them directly.
In employment specifically , affirmative action refers to an individual or organization’s plan or program to provide equal employment opportunities to members of certain designated groups (e.g. women, minorities, etc.). Affirmative action is closely associated with executive order 11246, which was signed into law by President Lyndon Johnson in 1965, requiring government contractors to have affirmative action programs in place. This executive order established requirements that remain in effect today as it relates to federal contractors.
Affirmative Action Law and Policy
Framed by a rich history, affirmative action is a starting point for diversity and inclusion. A concept born from the Civil Rights movement, affirmative action today is recognized as being critical to the well-being of our nation’s workforce.
The legal framework and policies that guide affirmative actions are numerous. The following summary is not comprehensive but it does provide an overview of some of the important laws and policies that impact affirmative action.
The language in the Civil Rights Act of 1964 gives the government the authority to make affirmative action mandatory. Specifically, Section 703(j) of the Civil Rights Act of 1964 provides the basis for the legal implementation of affirmative action. It states: "Nothing contained in this title shall be interpreted to require any action under this title, to grant preferential treatment to any individual or to any group because of an affirmative action program or corrective action which is approved to voluntary undertaken by an employer, labor organization, employment agency, educational institution, or governmental agency pursuant to a law."
In Executive Order 11246, signed into law in 1965 by President Lyndon B. Johnson, affirmative action—which was originally a suggested complex of efforts to increase opportunities for minorities and women—was made mandatory. This Executive Order protects applicants and employees from discrimination based on race, color, religion, sex and national origin.
Another Executive Order was signed in 1969 by President Richard M. Nixon. In this Order, Section 501, an initiative aimed at federal civil servants and administered by the Office of Personnel Management (OPM), was enacted. It requires to participating federal agencies to establish affirmative action plans to recruit disabled workers.
President Franklin D. Roosevelt signed Executive Order 8802 on June 25, 1941. This Executive Order prohibited discrimination based on race, color, religion or national origin in government jobs and by government contractors, and it was aimed at private companies who accepted federal contracts. The order also created the Fair Employment Practices Committee (FEPC), which was designed to investigate job discrimination.
In 1995 the EEOC published "Policy Guidance on Current Issues of Religious Discrimination." In this document, the EEOC stated that it had successfully handled religion-based discrimination cases since its inception in 1965. All Title VII of the Civil Rights Act of 1964 protects individuals from employment discrimination based on religion. The religions protected under Title VII include atheism and agnosticism. The EEOC is authorized to pursue complaints and can file suit.
An important Supreme Court decision in 2003, Grutter v. Bollinger, reaffirmed federal affirmative action programs. In this ruling, the court stated: "It has been 25 years since we last addressed affirmative action in higher education. For 25 years, the diversity judgment has withstood scrutiny from many academics, and a variety of experts, and those this Court has relied upon have repeatedly endorsed the educational benefits that diversity may provide. We conclude that, at the end of the day, the Court is convinced by the testimony and evidence offered before it that preferring applicants who belong to traditionally excluded minority groups continues to be necessary to diversity in higher education . . . the Court finds the Law School’s admissions process is not perfect or infallible—it allows for review of an applicant’s file, from which accurate predictions about future academic performance cannot be made. .
In 2015, the U.S. Supreme Court revisited affirmative action in Fisher v. University of Texas. In this case, the petitioner, Abigail Fisher, a white Texas state resident applied to the University of Texas at Austin (UT) for admission into the Fall 2008 law school class. Her application was rejected, and she sued the University claiming that her rejection was due to UT’s consideration of race in admissions decisions.
On a 4-3 vote, the court affirmed the Fifth Circuit’s ruling, upholding the University’s affirmative action program. UT’s current plan considers race as part of a holistic review of candidates in their freshman application process. The court stated that "UT’s race-conscious admissions program is an effective means for the University to attain the educational benefits of diversity," protecting UT students, faculty and staff.
Affirmative action programs would be required to award advanced degrees to all minority applicants and would require universities to search actively for black student-athletes.
Who is Subject to Affirmative Action Statutes?
Part of the reason that discussions of affirmative action and equal employment opportunity laws are so confusing is because the standards for who is required to implement affirmative action plans are different based on the particular laws and programs under which the requirement to create an affirmative action plan exists.
In the federal government contracting context, employers requiring affirmative action plans are those who have contracts or subcontracts worth over $10,000 during a twelve month period. These include construction companies, universities, and many types of professional organizations that do business with the federal government. The basis for this requirement is Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973 as amended. Of course, there are other requirements to bid on government contracts.
In the educational institution context, private colleges, public colleges, universities, and graduate professional schools with twenty-five or more students do/ should have affirmative action programs in place. The basis for the requirement comes from 34 C.F.R. § 106.41(d)(2) and the Executive Order 11246. The requirement for an affirmative action program is triggered by receipt of federal funds, including grants for libraries and educational research.
Universities receiving federal funding from the U.S. Department of Education must also adopt affirmative action plans if they employ more than fifteen faculty members. Again, the Executive Order is the basis for the requirement. Like most of the federal contracting requirements, the size of the employer is one of triggers.
In addition to educational institutions that receive federal funding, state and local government agencies that receive federal funding have their own requirements to create affirmative action plans. These include: Election Assistance Agencies, Governor’s Councils of Developmental Disabilities, State Planning Entities, State Protection and Advocacy Systems, Vocational Rehabilitation State Grant Program, and the Federal Transit Administration.
More recently, some major cities and states have created their own affirmative action requirements. New York City’s 2012 amendments to its Human Rights Law included a number of affirmative action requirements for city agencies. Further, on July 1, 2014, Illinois enacted an Affirmative Action Act (30 ILCS 780). The Illinois Act requires state agencies that receive funding through the Illinois Capital Plan Fund Act to adopt affirmative action plans. These plans must include procedures designed to remove barriers to equal employment opportunities, targeted outreach, steps to increase recruitment of underserved segments of the workforce, and procedures for providing mentors to minority and female employees.
Affirmative Action Plan Components
The primary component of an affirmative action plan ("Plan") is the development of specific goals for significant underutilization and issue areas. These goals include developing focused outreach strategies to improve minority and/or female participation and identify sub-goals for internal dissemination and accountability.
Typically, goal setting starts with a company’s availability analysis. Availability analysis utilizes workforce and demographic data, industry norms, passion research, and customized data analyses to estimate the expected percent of females and/or minority groups in each job group. After development of the availability analysis, a company conducts a utilization analysis. Utilization analysis compares the availability and utilization data, by job group, to determine if the company is making good faith efforts (by goal attainment) toward reaching the internal and external availability for females and/or minority groups. In conducting the utilization analysis, if a company does not meet the availability and utilization goals for a particular job group, then it has identified an area where it is considered a "problem area" for females and/or minorities. Companies with problem areas may need to conduct focused outreach and relationship building with local organizations, schools, businesses, government agencies, and service providers that support the employment of females and minorities.
The development of goals may also require the development of a self-audit plan. A self-audit plan is a discrete set of actionable items an employer must embark on when a management-level executive first becomes aware that there is a potential problem. The self-audit plan should involve a detailed review of the Plan, recruitment and selection processes, and compensation decisions. The plan should also include a review of compliance with OFCCP’s affirmative action requirements. While there are risks associated with self-audits, there can be significant benefits including an opportunity to fix isolated issues that could have otherwise derailed a positive image in the eyes of OFCCP and the company could avoid adverse publicity and bad publicity is the audit results reveal fatal flaws.
After completing the self-audit plan, companies are required to report progress against their goals. Reporting progress includes:
The validation process overlaps with the self-audit program. Key components of the validation process include:
Affirmative Action Controversies
While affirmative action policies have been in place for several decades, they have remained controversial. Critics of affirmative action argue that such policies constitute a form of discrimination. Moreover, opponents of preferential treatment are quick to point out that such preferences run contrary to the merit system and can lead to reverse discrimination. Critics of affirmative action also have argued that such policies cause divisions and animosity among groups based on their race or gender. Further, those who oppose these policies contend that students should be admitted to school based on their academic abilities solely and that socioeconomic factors should not weigh into the admission process. Government employers and educational institutions that from time to time use affirmative action policies have faced numerous challenges to these policies. In 2003 , the U.S. Supreme Court ruled in Grutter v. Bollinger, that diversity is a compelling state interest and universities may consider race or ethnicity as one factor among many in seeking to create a diverse student body. However, laws in approximately six states (Michigan, Washington, California, New Hampshire, Arizona, and Florida) and several localities outright prohibit any preferential treatment based on race, gender, ethnicity or national origin in public employment, education, and contracting. As with any controversial issue, the arguments of both opponents and proponents of affirmative action will likely continue.
Affirmative Action’s Effects
The impact of affirmative action is vast, extending to workplaces, schools and virtually every corner of American society. Affirmative action has its critics, who argue that it is setting up a system of preferences that can disadvantage those without the proper connections. Employers, for instance, argue that affirmative action is unnecessary because an employer’s need to obtain highly qualified candidates will cause them to consider diverse applicants. Affirmative action advocates counter that companies and universities have found it hard to recruit candidates from diverse backgrounds even in a competitive labor market. Critics of affirmative action have also tried to link it to poor performance by minority employees. But research by a number of senior academics, including Professor William Bowen of Princeton University, has shown that affirmative action beneficiaries actually outperform whites on standardized tests and perform as well or better than whites. A wide-ranging study of colleges and sports teams found that "having a student body with affirmative action admissions increases the likelihood that the athletic team will win games." More broadly, an analysis of college graduation rates "suggests that affirmative action admission provides high-achieving, low-income students the same opportunities as those available to higher-income students who attend better colleges." A separate, detailed study at Harvard found that affirmative action results in "large improvements in subsequent labor market outcomes." In evaluating the impact of affirmative action on Harvard, Professor Kathryn Shaw of Stanford University and a widely-respected economist who has studied labor markets, found that the "institutions educational programs do have a significant impact on the subsequent labor market outcomes of their graduates." The study concluded that "the estimated [Harvard] effect for blacks is large, corresponding to nine percent of the average hourly wage differential between blacks and whites." Affirmative action has impacted Asian-Americans, who currently account for 22 percent of Harvard’s freshman class. According to Harvard officials, a disproportionate number of Asian-Americans admitted to Harvard had participated in affirmative action programs, which increased their chances of being offered a spot over other more qualified Asian-American candidates. A 1998 internal study by Harvard found that "affirmative action favored blacks over whites at almost all levels of academic achievement and all types of schools. It favored Latinos (Hispanics) significantly more. The Hispanic effect was particularly notable for very high achievers." But whatever the impact to others, affirmative action has had a positive impact on the lives of minorities. In her study of the impact of affirmative action at Harvard, Professor Amitai Avenimi noted: "To the extent that affirmative action allows selective institutions to provide jobs that pay higher wages and to provide targeted occupational training, we expect to see large long-run gains from participation. Large labor market returns are suggestive of significant increases in lifetime earnings." The Department of Labor, taking a different approach according to an article published in the extreme right-wing online magazine, The Daily Caller, finds affirmative action to be ineffective. Using statistics from a variety of surveys, the Department of Labor concluded that "despite 50 years of race-conscious recruitment practices and the investment of billions of dollars in programs that set quotas for hiring, schools, and colleges, affirmative action has produced no visible changes in the employment and educational status of minorities."
Affirmative Action Moving Forward
The future of affirmative action is contingent on a number of factors, including judicial understandings of permissible criteria for selection or exclusion in government contracts and grants, as well as the potential articulation of new doctrine. These issues are already playing out in an era of evolving interpretations of what constitutes a permissible "narrowly tailored" approach to affirmative action.
For example, in March 2019, the U.S. Supreme Court denied the writ of certiorari in the case of Students for Fair Admissions v. University of Texas at Austin, Texas attempted to defend its use of affirmative action based admissions policies using "race conscious" strategies as part of a holistic review of applicants. Instead, the Court opted not to rule on the merits of affirmative action – allowing a lower appellate court ruling to stand, which upheld the University of Texas policy as constitutional under both the Fifth and Fourteenth Amendments to the Constitution. The denial also preserves the precedential value of past decisions, including Grutter, but leaves open questions as to the validity of newer rulings.
The Stringer decision discussed above, as well as the Schreiber case and other similar rulings, suggest that the government may face new challenges to the affirmative action plans it institutes . Some courts have suggested that since agencies are not directly receiving U.S. dollars for the award of contracts, but with passing funds it has already been received, the programs instituted by those agencies skate too closely to "racial balancing," which is unconstitutional.
The challenge presented in Schreiber – that the challenged § 8a program does not afford bidders that are situated the same way, except for their racial make-up, equal access to funds or other forms of aid – is only one of many areas ripe for reconsideration. What will happen, for example, when a § 8a program is placed on firm statutory footing, as opposed to administratively, through a rulemaking process?
The Supreme Court recently decided, in National Institute of Family and Life Advocates v. Becerra, et al., that the government cannot compel private speakers to speak its government speech. In NIFLA, the state had ordered pregnancy centers to disclose whether they provided or did not provide certain medical services. 585 U.S. ___ (2018). The Court held the statute was problematic because it required the centers to speak the government’s preferred view.
Could these arguments be extended to private contractors? If government counsel once more seeks to compel speech, might that argument be leveled? Will it be interpreted strictly, or might it be thought to harbor a larger scope?