Affirmative action is a policy in which the previously disadvantaged due to discrimination receive priority. It came to existence as a remedy toward discrimination and then became a problem all by itself according to some theorists, who are opponents to it. Supporters believe affirmative action should be adopted to provide equal employment opportunity, but facts show that it does not. Affirmative action is a very controversial issue, which has been debated for more than thirty years. Unlike discrimination, there are not so many laws against affirmative action, but opponents are indeed working on banning it wherever it is possible for them to do so.
TABLE OF CONTENTS
- Brief Overview of Affirmative Action
- Origin of Affirmative Action
- Views of Affirmative Action
- People who benefit from Affirmative Action
- Employment and Affirmative Action
- Affirmative Action and Equal Employment Opportunity
- Legal Issues of Affirmative Action
- How to Stop Affirmative Action from Being Taken
Pros and Cons of Affirmative Action
Brief Overview of Affirmative Action
Affirmative Action is usually defined as an active effort to improve employment or educational opportunities for members of minority groups and women or one to promote the rights or progress of other disadvantaged people.
(Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002)
In practice, affirmative action is taken by giving women and people from a minority group priority. For instance, a company has an opening for a bookkeeper. On determining who should be hired, the company gives women and people from a minority group priority. This could also happen with promotion: only women and people from a minority group are likely to be promoted, and with education: women and people from a minority group have better chances of obtaining grants and scholarships that would enable them to attend college.
Another way of illustrating how affirmative action is taken would be with a classroom in which some students receive a great deal of unfair punishments. One day it is brought to the teacher’s attention that she will be dismissed unless unfair practices are stopped. In an attempt to correct the past unacceptable behavior, the teacher starts treating those students with some kind of preference. In the beginning this will be certainly appropriate, as those students will need to feel that they are not ill-treated anymore.
Origin of Affirmative Action
Affirmative action is believed to have come about as a remedy to the awful discrimination that regrettably used to take place. As a matter of fact, according to T.H. Anderson, (2004) in 1940 discrimination was tradition and in some states it was even law. Sad though it might now sound to us, the most educated and refined African-American did not have the rights the most illiterate and indecent white individual did (p. 2). Therefore, when discrimination became illegal in the United States, affirmative action started to take place.
By the mid-1970’s minorities and women were winning significant victories, which could be seen on construction sites, exemplified by the Metro in Washington D.C. Mayor Walter E. Washington took a dramatic step, mandating a strong affirmative action program in which all private companies doing business or having contracts with city hall would have to submit plans with goals to advanced minorities and women. (J.H. Anderson, 2004, p. 142)
A valid affirmative action plan is one means of trying to undo the effects of past illegal discrimination. Under such a plan, an employer makes employment decisions based on race or sex factor that ordinarily can’t be considered, in order to restore equal opportunity employment for groups that have faced discrimination.
When a court finds that a business has discriminated and there are no other effective means to remedy the discrimination, the court may require the business to take affirmative action. For example, a court may order a company to hire one African-American employee for every two white ones hired until the company’s workforce resembles the racial mix of the community. (F.S. Steinhold, 2007, p. 156)
A business may also have to set up an affirmative action plan as part of voluntary settling a court case or the proceeding of E.E.O.C. (Equal Employment Opportunity Commission). Any voluntary program must meet the E.E.O.C.’s Guidelines on Affirmative Action Plans. (F.S. Steinhold, 2007, p. 156)
Views of Affirmative Action
Because it appears that originally valid plans of affirmative action became in a way corrupted or abused, there have been some opponents to it. Affirmative action is a subject that has been debated and analyzed by philosophers, legal scholars, social scientists, politicians, journalists, editorial writers, and common citizens for three decades.
Basically, the debate has two sides: the Right and the Left. The Right, which is totally against it, states that Affirmative action only causes people to obtain what they desire not because they deserve it, but because they belong to a group that was discriminated in the past. According to this site, affirmative action is unmeritocratic, leads to reverse-discrimination, and is an un-American guarantee of equal results instead of equal opportunity. The Left, which supports it, states that affirmative action is a compensation for past injustices and a guarantee of a fair share of the economic pie. (J.D. Skrentny, 1996, p. 1 & 2)
To reconcile the two views, it could perhaps be said that an affirmative action plan might be proper in the beginning of a non-discriminatory period of time; women and people from minority groups should feel that they are not discriminated anymore. On the other hand, there is no reason for this period of time to last forever. For instance, in the United States discrimination became illegal a very long time ago, so previously discriminated people should not be given any kind of priority because of what it used to happen in the distant past.
When it became vital to take the affirmative action in the turbulent period of 1964 to 1971, a careful consideration of the cultural and historical circumstances became absolutely necessary in its debate and an explanation for why it happened was needed as well. (Clayton & Crosby, 1992, p. 2) Nowadays, more than thirty years after that period, affirmative action would simply be against logic and no explanation could possibly be given as a result.
Affirmative Action is believed to be one of the most controversial policies in the United States. “The issues are complex, they stir strong feelings, and in the media everyone seems to have an opinion on the topic (Clayton & Crosby, 1992, p. 1). This implies that a great deal of understanding is needed.
The complexity of affirmative action as a topic is illustrated by the controversy of whether the version of the Civil Rights Act of 1991 required or prohibited quotas – George Bush’s belief versus his proponents -, the appointment of Clarence Thomas – an affirmative action beneficiary who surprisingly opposed it -, and the apparent shift in the Supreme Court. (S.D. Clayton & F.J. VanDeVeer, 2000, p. 4)
Opponents of affirmative action are believed to come from a variety of quarters: Supreme Court Justice Thomas – an African-American who opposes it – Thomas Sowell, Shelby Steele, and Glenn Lowry – African-American critics who gained national attention speaking about the policy -, and Stephen Carter – William Nelson Cromwell Professor of Law at Yale University. Their reactions to affirmative action seem very intriguing. (S.D. Clayton & F.J. VanDeVeer, 2000, p. 4)
Why people who benefit from affirmative action oppose to it deserves the amazement of whoever learns of the fact. It could perhaps be interpreted that they want to be equal – neither better nor worse. The fact that they are now granted more rights because they were once deprived of the ones they should have in the first place is likely to make them feel inferior. In other words, their equality should be put in force and they should only obtain what they rightly deserve regardless of their background.
Affirmative action became a major issue in state courts in California and in Pennsylvania, where it was indeed claimed that its almost inevitable effect was reverse discrimination.
People who benefit from Affirmative Action
In general, belonging to a minority group is due to an inborn or inherited matter, like women, African Americans, and people from different origins. On the other hand, there are some groups of people who willfully joined a minority group. For instance, many people learned one religion at home and later converted to a different one. Homosexuality and bi-sexuality is debatable: some theorists believe uncommon sexual orientations are in the genes, whereas some other ones believe they are a matter of option. Regardless of which theorists are right, homosexual and bi-sexual people were victims of discrimination in the past and later became beneficiaries of affirmative action.
As we all know, African Americans were virtually the worst victims of discrimination. Without any right whatsoever, people were taken from Africa and brought to America to be sold as slaves. The awful slavery was abolished a few hundred years later, but African Americans were still unable to obtain what the average person usually could. In the middle of the twentieth century, discrimination against African Americans became illegal and the law started to call for a total equality, and affirmative action was taken as a remedy.
Employment and Affirmative Action
Before focusing on the fact of whether or not affirmative action should be adopted to provide equal employment opportunity, we need to understand thoroughly the basic concepts or employment.
P. K. Edwards (2003) states in his book Industrial Relations: Theory and Practice that the employment relations has two parts: market relations and managerial relations. The former is more obvious because it covers price of labor, which embraces not only the basic wage but also hours of work, holidays and pension rights. In this respect, labor is like any other commodity, with a price which represents the total cost of enjoying its use. Yet labor differs from all other commodities in that it is enjoyed in use and is embodied in people. A machine in a factory is also enjoyed in use and for what it can produce. Yet how it is used is solely up to the owner. The ‘owner’ of labor, the employer has to persuade the worker, that is, the person in whom the labor in embodied, to work. (p. 9)
Most companies have employees nowadays, given that it simply becomes impossible for the owner to do everything all by him- or herself. On hiring a new employee, companies have their own criteria. We see quite often that the same employee who does not qualify for one company does for another one. Employees are chosen based on the companies’ budget and needs. In general, a large, profitable business is likely to choose a better skilled worker than a small business that operates at low budget.
Small businesses, which are usually constrained by the pressure of not exceeding their low budget, might also be selective in their own way. A very unskilled person, however economical he or she might be, is likely to be of no significant assistance to the company. As a result, the company might end up loosing money because of him or her.
When a person is to be hired by a company, it is imperative that it be done under the equal employment opportunity basis. The best candidate should be the one taking over the position. Failure to do so would be an unfair practice that might eventually lead to some significant problems. F.J. Crosby and C. VanDeVeer (2000) wrote in their book Sex, Race and Merit:
Often, when a problem has been identified, hiring or promotion goals are instituted. In classical affirmative action programs (where the employer monitors to make sure that qualified people are hired and promoted) the goals are derived from close study of the organization and are based on realistic appraisals of the labor market. (p. 4)
From the above, we see that classical affirmative action is a way in which equal opportunity employment is achieved, and supporters of affirmative action indeed focus on the remedy of unfair acts of discrimination performed in the past. Everybody believes that the employer is to monitor to make sure that qualified people are hired and promoted.
In fact, the goal of affirmative action when it came to existence was equal employment opportunity. Nonetheless, its practice later on became corrupted and its present goal is to give priority to people who belong to a minority group that was discriminated in the past. Many opponents of affirmative action would indeed oppose to discrimination and would agree to a policy in which only qualified people are hired and competent employees are promoted.
J.M. Bernbach (1998), who so much disapproves of discrimination wrote:
In 1996, affirmative action (the practice, fostered by federal government, of providing preferential treatment and / or opportunities to specified groups of persons in hiring or promotion, etc., as a means of correcting the present effects of past discrimination) received a good deal of negative attention. (p.3)
On certain occasions, affirmative action seems necessary or appropriate to remedy past injustices, but there is no reason to believe that everybody, including people who were always against discrimination, must follow suit.
Affirmative Action and Equal Employment Opportunity
As the name implies, equal employment opportunity is the right of every single person to be employed regardless of his or her background, i.e. race, color, national origin, religion, gender, age, disability, or reprisal. In the United States there is an organization called Equal Employment Opportunity Commission that focuses on how this right is actually granted to every individual.
- Burstein in his book Discrimination, Jobs, and Politics (1998) states:
In order to form a satisfactory picture of what public wanted on EEO, members of the congress would, ideally, want to know about three aspects of constituents attitudes: first, whether their constituents favored EEO, second, whether they wanted the government to do anything about it; and third, whether they felt strongly about the issue. (p. 42)
We see that the government is very much concerned about fair hiring and promotion practices. It is indeed a fact that everybody wants equal employment opportunities; nobody favors priority on the basis of discrimination or affirmative action. People want the government to ascertain the equal employment opportunities are in effect and they do feel strongly about the issue. The answer of most people is that the right person should take over the position he or she rightly deserves
Antidiscrimination programs are believed to be inefficient and costly. The reason might be the stagnant economy that has apparently not permitted to continue with them. Government pressures to employ or promote women and minorities may force firms to misallocate labor and thus suffer production losses. Keeping with the current concern over productive efficiency can rather be an antidiscrimination effort. (P. Burestein, Equal Employment Opportunity, 1994, p. 85)
Better production in a company as a whole could rather achieve equality. For instance, a company has been in business for many years and, on analyzing their activities, they come to see that their production was better when they had people with more skills in the engineering department. As a result they decide to hire a high-skilled engineer. When doing so, they carefully evaluate every candidate regardless of their background until they end up hiring the most suitable one. One year later, the company analyzes their activities and see some remarkable improvements.
One might want to ask how it is possible for someone who is not so skillful to become skillful in the future. The answer would be quite simple: more education or training, and, as we all know, education is very easy nowadays. There are many ways online that would enable one to obtain it, and there are many regular schools that could help.
Some people take their not being hired as a lesson to get more education or training. Inevitably, when the person being hired is from a majority group, some people accuse the company of being discriminatory, and, when someone from a minority group is hired, the company might also be accused of having taken affirmative action. When something alike happens, the EEOC (Equal Employment Opportunity Commission) needs to be contacted, and they need to investigate the situation.
The beginning of antidiscrimination and or against affirmative action is perhaps freedom. One might question what freedom has to do with either discrimination or affirmative action, and the answer might be the actual explanation of what freedom means. Freedom is the right to share fully and equally in American society – to vote, to hold a job, to enter a public place, to go to school. It is right to be treated in every part of national life as a person equal in dignity and promise to all others. (Curry, G.E. &West, C. , 1996, p. 17)
In a society in which freedom is in existence, the equal opportunity employment practice is easier to put in practice. Some people might use this freedom in an abusive form, ending up in discrimination or affirmative action. That is why it is necessary that a commission EEOC (Equal Employment Opportunity) exist. The goal of this organization is to establish rules and regulations and, whenever a case of discrimination or affirmative action is reported, this organization needs to study it thoroughly and then determine how it could be corrected. In some occasions, it is even necessary to take legal action.
Legal Issues of Affirmative Action
Unlike discrimination, which is so clearly against the law and there is a great deal of coverage both constitutionally and statutorily, it has not become possible to have affirmative action at the same level. No one constitutional or statutory provision covers all the many different varieties of affirmative action. (C. Wolf-Devine, 1997, p. 182) As a result, it becomes very intricate for both judges and attorneys to deal with a case of affirmative action.
If a man that does not belong to a minority group is not hired solely because that company is currently taken affirmative action when hiring, he would first report the incidence to Equal Opportunity Employment Commission. If the E.O.E.C. determines that the individual has brought prima facie evidence, they might decide to take legal action against that company. The judge and the attorney are likely to regard the whole case as a reverse-discrimination and by doing so, the same sources of law that are used in a discriminating case can be used for this particular one.
After all, the individual that was hired was only successful to obtain this job because he or she belongs to a minority group, not because he was the best qualified for it. If the case had been just the opposite – the individual that was hired did not belong to a minority group, whereas the one that was not hired did – it would have been a regular discrimination case, which would have had a great deal of coverage in the American legal system.
The very same situation would have been with someone who has been working at a company for a very long time and, due to his valuable qualifications, would deserve promotion. Besides the fact that promotion is not given to him, two other co-workers – a woman and an African American – do become promoted in an attempt to take affirmative action. Given that promotion is also controlled to E.E.O.C., the individual contacts them immediately and they determine that the matter is to be brought in front of a judge. This case would also be treated as a discriminating case, and it indeed is a case of reverse discrimination.
According to Herman Belz, in his book Equality Transformed (1991):
Affirmative action lacks consistency and coherence insofar as the Supreme Court applied two antithetical theories of employment discrimination, upheld quotas in hiring and promotion while prohibiting them in layoffs, and used some form of strict scrutinity review to analyze discrimination under the Constitution while forsaking such reviews under Title VII – and only then asking whether a race conscious measure promoted the goal of minority employment. (p. 225 & 226)
The above shows up to what point affirmative action is to be treated like discrimination when it comes to legal matter. However, the fact that when affirmative action is taken does not at all mean that there has in fact been discrimination put judges and attorneys in a cumbersome situation.
While discrimination has the same principles, is clear and can be carefully considered, affirmative action – in general regarded as the opposite of discrimination – is never clear enough to be handled by a judge and attorneys. As we know, affirmative action is sometimes taken as a remedy, whereas discrimination comes as a matter of opinion. For instance, a company that never hires African American is sued for discrimination. The basis of this type of discrimination will always be the same; the accused will try to deny the fact. Someone that is sued for taking affirmative action will rather try to justify his attitude.
How to Stop Affirmative Action from Being Taken
Affirmative action is definitely not an effective diversity or opportunity policy; it is merely reverse discrimination. Given that a person obtains what he or she wishes because he or she belongs to a minority group – not because he or she deserves it, the policy is very unfair indeed. A fair policy would be one in which the best-skilled individual takes over a position at a company or someone who qualifies for a grant or scholarship to attend college obtains it.
On some occasions, there might be a court order for a company to take affirmative action. When this happens, it is usually in an attempt to settle a lawsuit that was placed because discriminatory policies were adopted by that particular company.
When affirmative action is taken on a voluntary basis without any good reason whatsoever, it becomes a legal transgression that is just as awful as discrimination. Obviously, a court cannot order a company taking affirmative action to be discriminatory from now on, as this would only be an awful crime.
The solution toward the problem of taking affirmative action is quite simple: the company should make their hiring and promotion decision based on the workers skills and qualifications, not based on the fact that that particular individual belongs to a minority group.
The Equal Employment Opportunity Commission should come up with some guidelines to prevent companies from taking affirmative action altogether. Those guidelines should be brought to the attention of the U.S. Senate in order for them to become laws. As we know, when a company is accused of taking affirmative action, judges and attorneys find it difficult to handle the case, because there are not enough laws against it.
Copying the laws of discrimination would not be an option, because a court would never order a company to discriminate, whereas it might order a company to take affirmative action as a remedy for past discriminatory activities. New laws need to be put in force, as laws against affirmative action were in some occasions questioning.
It is very painful to pinpoint that extreme affirmative action is widespread in the United States, and there does not seem to be any solution at first sight. Under the assumption that affirmative is taken as a remedy toward discrimination, the number of individual that claim to suffer from affirmative actions exceeds the number of the ones who suffered from discrimination in the past and now benefit from the policy.
Empirically the official case for affirmative action is weak and conceptually it is loose. Believing that the policy has been “good for America” and that it has been an instantaneous move to “color-blindness” would be ill-advised.
Equal opportunity is supported by everybody, but it would be inappropriate to the extreme to believe that the way to achieve it is phasing out affirmative action. Michigan, a state in which there are many opponents, is one of the ones that have intended to ban affirmative action altogether, and such a measure is believed to be one of the harshest attacks on affirmative action to come to a vote anywhere in the country.
This movement has been called “Michigan Civil Rights Initiative” and it deserves to be called the Michigan Anti-Affirmative Action Initiative. It was also intended to add language to the Michigan state constitution to disallow “preferential treatment” based on gender, or race. Other states following suit are California, Washington State, and Florida.
The passage of the Michigan Civil Rights Initiative would specifically ban public institutions from using affirmative action programs that give preferential treatment to people from minority groups and prohibit public institutions from discriminating against groups or individuals that do not belong to those groups.
The Michigan Civil Rights Initiative is indeed very appropriate and the whole country, as well as the whole world, should follow in their footsteps.
Anderson, T.H. (2004). Pursuit of Fairness: A History of Affirmative Action. Oxford University Press, (p.2, 3 & 142)
Belz, H. (1991) Equality Transformed, Transaction Publishers (p225 & p226)
Bernbach, J.M. (1998). Job Discrimination II, Voire Dire Press (p. 3 & 4)
Burestein, P. (1994). Equal Employment Opportunity, Aldine Transaction (p. 85)
Burestein, P. (1998). Discrimination, Jobs, and Politics. University of Chicago Press (p. 42)
Clayton, S.D., & Crosby, F.J. (1992). Justice, Gender, and Affirmative Action. University of Michigan Press (p. 1 & 2)
Clayton, S.D., & by F.J. &, VanDeVeer, C. (2000). Sex, Race, and Merit. University of Michigan Press (p. 4)
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Edwards, P.K. (2000). Industrial Relations: Theory and Practice. Blackwell Publishing (p. 9)
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Steinhold, F.S. (2007) The Employee’s Legal Handbook, Nolo, (p. 156)
Wolf-Devine, C. (1997) Diversity and Community in the Academy, Rowman & Littlefield, (p. 182)
Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002