Affirmative action and recruitment practices
Affirmative action refers to policies and practices designed to promote equal opportunity in employment for historically marginalized groups, particularly in response to past discrimination. Originating from Executive Order 10925 in 1961, which mandated that federal contractors not only refrain from discrimination but also actively ensure fair treatment regardless of race, creed, color, or national origin, these practices have evolved over decades. The Civil Rights Act of 1964 and subsequent executive orders expanded these efforts to include requirements for recruitment, hiring, and promotion practices that actively involve diverse candidates.
One notable development was the Philadelphia Plan, which required contractors to meet specific statistical benchmarks for minority employment, sparking debates over what constitutes "reverse discrimination." While affirmative action aims to level the playing field, it has faced challenges and criticisms, particularly regarding its implementation and perceived fairness. Legal rulings, such as a recent Supreme Court decision in 2023, have further complicated the landscape, possibly prompting employers to reevaluate their affirmative action strategies in recruitment. Despite ongoing debates about its effectiveness, many advocate that affirmative action is essential for providing opportunities to individuals who may otherwise be overlooked.
Affirmative action and recruitment practices
Definition Publicly mandated and private programs designed to increase employment and education opportunities for traditionally underserved or underrepresented groups, usually racially or ethnically marginalized groups and women
Affirmative action programs were designed to equalize opportunities for disenfranchised groups. They have been controversial since their inception, from the standpoints of both public policy and constitutional law. Critics and supporters alike would agree, however, that they significantly changed hiring and recruitment practices throughout the country, altering the composition of the workforce within several major industries.
On March 6, 1961, newly inaugurated president John F. Kennedy issued Executive Order 10925, which required businesses receiving contracts with the federal government not only to refrain from discriminating in employment but also to “take affirmative action to ensure that employees are treated during employment without regard to their race, creed, color, or national origin.” The requirement was then understood to mean that employers should desegregate, ending all-black and all-white work units, departments, and divisions. On June 22, 1963, Kennedy’s Executive Order 11114 empowered federal agencies to terminate contracts with businesses disobeying Executive Order 10925. Nevertheless, southern firms continued to resist compliance, as enforcement was weak.
Civil Rights Act of 1964
The term “affirmative action” next appeared in Title VII of the Civil Rights Act of 1964, which empowered courts to require employers guilty of discrimination to engage in “such affirmative action as may be appropriate.” The statute went into effect on July 1, 1965, and suggested such remedies as hiring or reinstatement of employees with back pay.
So long as complainants were required to file lengthy and costly lawsuits to gain relief for illegal discrimination, discriminatory employers were at a definite advantage. Therefore, advocacy groups urged President Lyndon B. Johnson to require federal contractors to take “affirmative action” in advance of complaints by empowering an administrative agency to enforce requirements and monitor compliance. On September 24, 1965, Johnson issued Executive Order 11246, which extended affirmative action to the recruitment, screening, and selection of new employees. Enforcement was assigned to the US Department of Labor. The Equal Employment Opportunity Commission (EEOC), empowered to enforce Title VII, then asked errant employers to draw up “affirmative action plans,” that is, blueprints for changes in policies, practices, and procedures identified as responsible for discrimination.
On October 13, 1967, Johnson issued Executive Order 11375, extending affirmative action to cover sex discrimination. On May 28, 1968, the Labor Department for the first time required contractors to prepare written “affirmative action programs.”
The Philadelphia Plan and Backlash
Although affirmative action was understood to mean including ethnic and racial groups as well as women in occupations from which they were formerly excluded, many employers provided only token responses to the new orders and regulations, such as hiring just one Black American or woman in a particular job. In 1968, to deal with this tokenism, the Labor Department’s Philadelphia office began to require contractors to demonstrate compliance quantitatively.
What became known as the Philadelphia plan involved comparing employees and applicants for employment with statistical norms. For example, if Labor Department statistics showed that 30 percent of all forklift operators working in the Philadelphia area were Black, each contractor was required to ensure that close to 30 percent of its forklift operators were Black. Similarly, employers had to demonstrate that rates of promotion, salaries, and other aspects of employment treated both sexes and all ethnic and racial groups equally. If they could not do so, they were required to state specific reasons why disparities existed and correct the deficiencies.
The Philadelphia plan insisted that, where disparities were found, employers must draw up timetables for removing those disparities. It became a nationwide standard on February 5, 1970, when the Labor Department issued new guidelines for affirmative action known as Revised Order 4. The order required employers to assess whether they perpetuated patterns of exclusion or underemployment of ethnically or racially marginalized groups or women. If so, changes were to be made in any personnel policies, practices, or procedures that were deemed responsible for the anomalous patterns; goals and timetables for such changes were required. Failure to make an analysis or to correct deficiencies was deemed to constitute bad faith, placing a contract in jeopardy.
Although the Philadelphia plan was acceptable to civil rights groups, some White men saw the hiring of an increasing number of ethnically or racially marginalized individuals and women as “reverse discrimination.” Employers also began to complain of the cost of collecting, organizing, and analyzing detailed statistics about their employees.
Affirmative action has not always been implemented in a manner consistent with federal guidelines, leading to court challenges on some occasions. Judges, in turn, have supported affirmative action only when remedies have been narrowly tailored to remedy specific deficiencies in reasonable periods of time. In 1995, President Bill Clinton announced four standards for “mending” affirmative action: Affirmative action should not establish quotas, give preference to unqualified applicants, involve reverse discrimination, or continue beyond the existence of a demonstrable need. That policy continued through the beginning of the twenty-first century, though the Supreme Court continued to hear and pass judgment on cases involving affirmative action. A debate remained ongoing concerning the effectiveness of affirmative action in education; a 2005 study published in the Stanford Law Review looked at the effect that affirmative action had on law students, questioning whether it helped or hampered students' abilities to pass the bar exam and to secure employment. Nonetheless, many continued to believe that affirmative action provides opportunities for those that might otherwise be denied.
Meanwhile, a 2023 Supreme Court decision definitively shifted the use of affirmative action in higher education and led experts to speculate that employers may subsequently alter their approach to such programs related to recruitment and hiring efforts. With the ruling prohibiting race-conscious higher education admissions decisions, some argued that it was likely that companies that had strong affirmative action recruitment and hiring programs in place, including in internship offerings, might feel compelled to make such policies less strict in terms of protected traits such as race so as to avoid any legal challenges.
Bibliography
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Curry, George E., ed. The Affirmative Action Debate. New York: Perseus, 1996. Print.
Ezorsky, Gertrude. Racism and Justice: The Case for Affirmative Action. Ithaca: Cornell UP, 1991. Print.
Featherman, David L., Martin Hall, and Marvin Krislov. The Next Twenty-Five Years: Affirmative Action in Higher Education in the United States and South Africa. Ann Arbor: U of Michigan P, 2010. Print.
Glazer, Nathan. Affirmative Discrimination: Ethnic Inequality and Public Policy. Cambridge: Harvard UP, 1987. Print.
Park, Julie J. When Diversity Drops: Race, Religion, and Affirmative Action in Higher Education. New Brunswick, NJ: Rutgers UP, 2013. Print.
Sander, Richard Henry, and Stuart Taylor Jr. Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. New York: Basic, 2012. Print.
Slater, Dan. “Does Affirmative Action Do What It Should?” New York Times. New York Times, 16 Mar. 2013. Web. 8 Sept. 2014.