Affirmative action

Affirmative action is action affording, to groups considered by some to be victims of social discrimination, "preferential" or "equal" (depending on one's point of view) access to an environment or benefits, such as education, employment, health care or social welfare.

This can involve "equal opportunity" hiring and other practices, required demographically-representative (or over/under-representative) diversity in an environment, or other practices that actively prefer members of minority or socio-economic groups. Affirmative action requires that institutions search in good faith for qualified minority candidates, and never requires these institutions to hire or enroll unqualified candidates. While critics often object to the use of racial quotas and gender quotas in affirmative action, quotas are hardly ever instituted. In fact, quotas are illegal in the United States, except when a judge issues an order for a specific institution to make up for extreme past discrimination.

Purpose

A particular minority group or gender may be under-represented in some areas (for example, in the UK there are fewer Asian people in the police than might be expected given the proportion of Asians in the population in general), perhaps due to past discrimination against members of the group. When this occurs, there is a school of thought that unless this group is given specific help to progress in this area (whether in recruitment to a specific job, college or other place or status) it will never gain the critical mass and acceptance in that role, even if discrimination against the group is eradicated. For this reason, it is suggested, more effort must be made to recruit persons from that background, train them, and if necessary, lower the pass mark in any final exam.

Proponents of affirmative action argue that affirmative action is the best way to correct a history of discrimination against a minority group. With a wide and long term perspective, affirmative action may be seen as redressing an otherwise unfair balance of historical wrongs and institutionalised disadvantages.

In the US, affirmative action was originally designed by the civil rights movement to correct the history of oppression against all working and low-income people. Though the civil rights movement is associated with racial equality, the original scope of affirmative action was not limited to race. Conservative opponents of affirmative action successfully framed the policy in terms of race in order to inspire opposition in an important part of their constituency: low-income white men. By excluding a portion of those the policy was designed to help, conservative opposition was then able to criticize using the idea of reverse discrimination. This rhetoric would have made little impact if coming only from those in obviously advantaged social segment.

The preceding argument appears insensible, however, in light of the overwhelming emphasis on race that took shape in the legislation. It is folly to contend that opponents of affirmative action would craft affirmative action legislation at all, let alone legislation which would create preferential status for non-whites, thereby alienating and disenfranchising this "important constituency" of low-income white men. An electorate which antagonizes its constituency does not get re-elected, and so the paragraph above does not stand to reason, and may be regarded as revisionist history with a communist/socialist agenda.

United States

Basis in US Law

In the US Constitution, the equal protection clause of the Fourteenth Amendment mandates that no governmental entity burden a person or deny them benefits because they are members of a racial minority (see Constitutional Law, Nowak and Rotunda). The Oxford Desk dictionary defines a racial minority as a smaller number of persons within a political party or structure.

The Johnson administration embraced affirmative action in 1965, by issuing United States Executive Order 11246, later amended by Executive Order 11375. The order, as amended, aims "to correct the effects of past and present discrimination". It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. The Order requires that contractors take affirmative action to ensure that "protected class, underutilized applicants" are employed, and that employees are treated without discriminatory regard to their protected class status.

The Order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment opportunities for members of racial minorities and women. Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from federal contracts during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities.

The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the U.S. Department of Labor.

Section 717 of Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 require all United States Federal Agencies to implement affirmative employment opportunity programs for all federal employees. EEOC Equal Employment Opportunity Management Directive 715 (MD 715) provides guidance as to how such programs are to be implemented.

In the beginning, racial classifications that only discriminated against racial minorities were inherently suspect and subject to strict scrutiny. These classifications would only be upheld if necessary to promote a compelling governmental interest. Later the US Supreme Court decided that racial classifications that benefited underrepresented minorities were to only be upheld if necessary and promoted a compelling governmental purpose. (See Richmond v. JA Croson Co.)

Individual US States e.g. Missouri also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, national origin, gender, age, and disability status.

Implementation in Universities

When underrepresented minorities are actively sought or preferred, the reason given is usually that this is necessary to compensate for advantages to groups such as males or those of European descent from racism, sexism, results of historical circumstances, and institutional racism.

Some dissenters claim that racial preferences have in-effect caused a reverse discrimination against a historically-dominant group (white males in Europe and North America), and liken such preferences to apartheid.

In the US, the most common form of affirmative action centers around access to education, in particular entrance to university and other forms of tertiary instruction. Typically, individuals will have the difficulty of their entrance and/or exam requirements or numerical-maximum/minimum number of student-entries set in relation to what group(s) they belong to, such as their race, ethnicity, native language, class, geographic origin or gender. Individuals can also be awarded scholarships and have fees paid on the basis of the hitherto-listed criteria.

In the United States, affirmative action programs at universities usually benefit only black African Americans, Hispanic Americans, and Native Americans. Asian Americans, although a racial minority, do not benefit at most colleges because their makeup in the student body exceeds their makeup in the general US population. White-skinned people do not benefit in universities where their makeup in the student body is less than their makeup in the general US population because they are not members of a racial minority.

Important US Supreme Court cases

Regents of the University of California v. Bakke, 1978

The Supreme Court held that the UC Davis medical school admissions program violated the equal protection clause with the institution of quotas for underrepresented minorities. However, the court ruled that race could be one of the factors in university admissions.

Grutter v. Bollinger, 2003

The Supreme Court ruled that race could be used as a criterion in school admissions and that it would not be in violation of the equal protection clause of the 14th Amendment. The Court found that the University of Michigan Law School's narrowly-tailored policy was constitutional and appropriate "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

Gratz v. Bollinger, 2003

The Supreme Court ruled that the University of Michigan's point-based undergraduate admissions policy that took race into account numerically was too mechanical and unconstitutional.

Consultations

Another more abstract form of affirmative action is in consultations, whereby institutions such as schools or health-care facilities are declared to be ethnocentric around the majority culture, and therefore consultation with other ethnic groups, especially indigenous groups, are specified as a remedy. This can cause accusations of double-standards, as often in practice representatives of all ethnic groups except the majority group receive consultation on institutional workings. Proponents discount this as being irrelevant, as they claim consultation with the majority group is pointless, as the institution's management is centric around them anyway.

Outside the United States

In those countries outside the US which have laws on racial equality, such as the United Kingdom, affirmative action would usually be illegal because of a requirement to treat all races equally. This approach of equal treatment is sometimes described as being race-blind. It tends to act against both discrimination and reverse discrimination.

In those countries, the focus tends to be on ensuring equal opportunity and, for example, advertising campaigns to encourage ethnic minority candidates to join the police force.

Canada

In 1982, the Canadian Charter of Rights and Freedoms enshrined the following "Equality Rights":

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because or race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Recognizing that "systemic discrimination" was responsible for most of the inequality found in employment, the 1984 Royal Commission on Equality in Employment outlined a systemic response and chose the term "Employment Equity" to describe the process. "Employment Equity" was chosen to create a distinction between the primarily American "Affirmative Action" model as well as to move beyond the "Equal Opportunity" measures available in Canada at that time.

As set out in the Canadian Employment Equity Act, Employment Equity is an on-going planning process used by an employer to:

identify and eliminate barriers in an organization's employment procedures and policies;
put into place positive policies and practices to ensure the effects of systemic barriers are eliminated; and
ensure appropriate representation of "designated group" members throughout their workforce.

The goal of Employment Equity is to:

eliminate employment barriers for the four designated groups identified in the Employment Equity Act: women, persons with disabilities, Aboriginal people, and members of visible minorities;
remedy past discrimination in employment opportunities and prevent future barriers;
improve access and distribution throughout all occupations and at all levels for members of the four designated groups;
foster a climate of equity in the organization.

The Employment Equity Act affects the following sectors:

All federally regulated employers with 100 or more employees, including organizations in industries such as banking, communications, and international and interprovincial transportation.

All federal departments. Other parts of the public service, including the Canadian Forces and the Royal Canadian Mounted Police may be specified by order of the Governor in Council, on the recommendation of the Treasury Board, as being required to comply with the Employment Equity Act.

Under the Federal Contractors Program, employers with 100 or more employees who have secured a federal goods or services contract of $200,000 or more are required to sign a certificate of commitment to fulfill their mandated goal of implementing employment equity in their workplace.

India

In order to redress historic inequity of the caste system, certain positions in university and government are reserved for the "untouchables".

Malaysia

In Malaysia, the bumiputra laws are a form of affirmative action meant to provide more opportunity for the majority ethnic Malay population versus the historical financial dominance of the Malaysian Chinese and Indian populations.

New Zealand

Individuals of Maori or other Polynesian descent are often afforded preferential access to university courses, and scholarships.

Criticisms of Affirmative action

Some opponents of affirmative action argue that the effect of such policies is to discriminate against individuals from the majority. For example, a better qualified applicant for a job might be passed over in favor of a less prepared individual, due to the better applicant being a member of the majority while the weaker applicant is a member of the minority. These dissenters claim that racial preferences have in effect caused a "reverse discrimination" against a historically-dominant group (white males in Europe and North America), and liken such preferences to apartheid. Even if some groups are numerically under-represented, these critics would argue that any discrimination between individuals on the basis of group membership is objectionable in itself, whatever the motive; they would prefer color-blind and similar selection methods.

It can also be argued that with lower university entrance standards for minority members, those from the minority who do get in may be less able to complete the course, leading to a higher drop out rate and a greater public perception that they are not up to it, defeating the stated aim. In fact the very notion that minorities need lower entrance standards reflect a unconscious racism that still is prevalent in society.

There are some suggestions that the beneficiaries of affirmative action are the wealthier members of minority groups; critics ask what justification on "equal opportunities" grounds would justify selecting a middle-class minority group member over a better qualified working-class member from the majority group.

As a group, libertarians do not object to affirmative action on a voluntary basis any more than they object to any form of discrimination that individual people may freely decide, but they do object to state imposed requirements for affirmative action. They suggest that any form of unjustified discrimination is likely to lead to inefficiencies, and that a rational person would therefore be unlikely to seek to discriminate one way or another and should therefore be free to decide who to select.

References

Shaheen Lakhan - Diversification of U.S. Medical Schools via Affirmative Action Implementation. BMC Medical Education. 3:6. 2003.
U.S. Department of Labor - U.S. Executive Order 11246 EEO and Affirmative Action Guidelines for Federal Contractors Regarding Race, Color, Gender, Religion, and National Origin
U.S. Department of Labor - Executive Order 11246, As Amended
Canadian Charter of Rights and Freedoms