Affirmative Action
| Author | Jeffrey Wilson |
| Pages | 189-195 |
Page 189
Affirmative action has been the most contentious area of civil rights law during the past 30 years. Despite several Supreme Court decisions, numerous executive orders, and laws passed by legislators at the state and federal level, it is still considered an unsettled area of law. Because of this current lack of resolution, any article written about affirmative action may soon become outdated with the latest law or court decision. Nevertheless, the broad outlines of what affirmative action has been and presumably will be in the future can be established.
Although the term "affirmative action" can be used in a variety of contexts, the most popular definition currently is within the arena of civil rights. There, affirmative action has been held to provide a special boost to qualified minorities, women, and disabled individuals in order to make up either for past discrimination or for their under representation in a specific area of the work force or academia. Though these categories of individuals have historically benefited most, affirmative action programs can also apply to other areas of discrimination, such as age, nationality, and religion.
Affirmative action can be administered in several ways. One way is through "quotas," defined as a strict requirement for a proportion or share of jobs, funding, or other placement to go to a specific group, e.g., 50 percent of all new hires must be women. Another is "goals," which require agencies and institutions to exert a good-faith effort toward reaching the assigned proportion or share goal but do not require that the proportion be reached. Affirmative action can also take the form of intangible "boosts" for the respective beneficiaries of the pro-
Page 190
gram; for example, all men shorter than 5283 will be given ten extra points on the physical fitness exam.
The reasons for affirmative action are myriad and tend to overlap, but generally two justifications have stood out. One is that the group has been discriminated against in the past, for example black Americans, and needs affirmative action in order to "catch up" to the majority that has not suffered discrimination. The other is that the group is under represented in whatever area is being scrutinized, say women in construction jobs, and needs to be helped to achieve some sort of representation in the area. Even in this situation, however, there is the tacit admission that discrimination might be the underlying cause of the under representation.
Affirmative action has its origins in the civil rights movement of the late 1950s and early 1960s. The movement brought a dramatic change to U.S. social life through protests, court decisions, and legislative action, culminating in the passage of the 1964 Civil Rights Act, popularly known as Title VII.
But Title VII mentioned affirmative action in a positive sense only in the context of the American Indian. It allowed preferential treatment to be given "to individuals because they are Indians living on or near a reservation." Otherwise, Title VII outlawed discrimination in a "color blind" fashion. The relevant part of Title VII states: "Nothing contained in this [law] shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this [law] to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed … in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
This part of Title VII was passed to assuage the concerns of moderate members of Congress that the Civil Rights Act would become a quota bill, requiring reverse discrimination against whites. Civil rights leaders, who for the most part felt distinctly ambivalent about affirmative action, did not object to the inclusion of this passage. Many saw affirmative action as a way of dividing working class whites from blacks and the civil rights movement from its natural allies in the labor movement.
But the riots of the mid and late-1960s convinced more and more civil rights leaders that a color-blind policy of enforcing civil rights was not enough and that there had to be steps taken to ensure blacks could complete equally with whites. President Lyndon Johnson endorsed this view in a speech before Howard University in 1965 in which he stated: "You do not take a person who for years has been hobbled by chains and liberate him, bring him to the starting line and say you are free to compete with all the others."
That same year, Johnson issued Executive Order 11246, requiring firms under contract with the federal government not to discriminate, and to "take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, or national origin." Although not specifying what would constitute affirmative action and not applying to any firms outside the federal government, this order is considered the first attempt at positive affirmative action by a governmental entity. The order also created the Office of Federal Contract Compliance (OFCC) to enforce this policy.
Because the term, affirmative action, was left intentionally vague by the executive order, however, the OFCC was unsure how to enforce it. The OFCC formulated plans in several cities, such as Cleveland and Philadelphia, to facilitate the hiring of minorities for federal government work, but for various reasons these plans were determined to be illegal or never seriously enforced. Johnson left office without any definite affirmative action plan put forth on his watch.
It was left to the Nixon administration, ironically considered an administration not particularly friendly to civil rights interests, to pick up the issue and promote the first serious affirmative action plan that required government-determined, numerically specific percentages of minorities to be hired.
In 1969, the Nixon administration picked up a plan that the Johnson administration had put forth for the construction industry in the city of Philadelphia, referred to as the Philadelphia Plan. The Johnson administration plan was...
To continue reading
Request your trial