Labor and Employment

Affirmative Action Policies in Education and Employment

By Aaron Hotfelder, J.D., University of Missouri School of Law
Employers and educational institutions must craft their affirmative action policies carefully to avoid violating federal laws.

A number of federal, state, and local laws forbid discrimination against individuals or classes of persons based on factors such as race, color, national origin, age, sex, religion, and disability. Perhaps the best known federal law that prohibits discrimination in the workplace is Title VII of the Civil Rights Acts of 1964, which addresses illegal discrimination by employers.

Universities and businesses have long used affirmative action policies to try to fix past and present discrimination. However, some aspects of these programs, such as the use of strict minority quotas, might violate federal law.

Definition and Purpose of Affirmative Action

The term "affirmative action" is not easily defined; in fact, controversy has long surrounded both the definition and the means necessary to achieve the desired goals of affirmative action.

The concept and actual application of affirmative action are usually confined to two areas: employment and education. An employer or school takes affirmative action when it puts in place programs, plans, and efforts designed to eliminate discrimination in the hiring or admissions process, remedy the effects of past discrimination, or prevent future discrimination. For example, an employer could sponsor or participate in job fairs on historically black college campuses to attract a more diverse pool of job applicants. However, an employer can't consider an individual's race during the hiring process without violating Title VII of the Civil Rights Act.

Commentators have cautioned that affirmative action and strict minority quota systems should not be confused with one another. While the U.S. Supreme Court has held that strict racial quotas are unconstitutional in university admissions, the Court has upheld affirmative action policies that use race as one factor to be considered in making an admissions decision.

Executive Orders on Affirmative Action

The first official use of the term "affirmative action" was in an executive order signed by President John F. Kennedy in 1961. Federal contractors were ordered to take "affirmative action to ensure that [job] applicants are treated equally without regard to race, color, religion, sex, or national origin."

In a 1965 executive order, President Lyndon B. Johnson instructed all federal contractors of a certain size or larger to take "affirmative action to expand job opportunities for minorities" and required certain federal contractors to develop "affirmative action plans." Despite the requirements of the two executive orders, it became clear by the early 1970s that equal opportunity in education and employment still had not been achieved. As a result, more proactive affirmative action programs were encouraged to counter the discriminatory effects of hiring and admissions policies that appeared "facially neutral" but could, in practice, deny equal opportunity.

Courts Address the Scope of Affirmative Action Programs

Since the implementation of affirmative action programs, laws, and regulations in the 1970s, the courtsrather than legislatureshave clarified the lawful scope and content of such programs.

During the late 1960s and early 1970s, many educational institutions used minority quota systems that provided for specified numbers of minority students. In 1978, the Supreme Court ruled that such racial quotas were illegal. The Court, however, agreed with the principle or theory of affirmative action. Since that decision, federal courts haven't ruled consistently on questions of racial quotas or preferences, which has often created confusion and controversy.

In a landmark decision in 2003, the Court ruled that a public university could consider an applicant's race during the law school admissions process. The Court, however, said that public universities could not provide "broad and arbitrary advantages" to each minority applicant. Calling the ruling a victory, advocates of affirmative action were optimistic that public universities could develop and implement plans to increase the number of acceptances of minority students. In a second decision, the Court struck down an undergraduate admissions process that was found to have violated the Constitution because it arbitrarily gave bonus points to each minority applicant.

In a 2007 Supreme Court decision that affected school districts across the country, a deeply divided Court struck down plans in Louisville, Kentucky, and Seattle, Washington, which assigned students to schools based partly on their race. The Court stated that the school districts failed to justify "the extreme means they have chosendiscriminating among individual students based on race by relying upon racial classifications in making school assignments." However, the Court fell short of a sweeping decision saying that race could never be taken into consideration.

Then, in 2016, the Court upheld by a narrow margin a University of Texas plan to increase campus diversity by considering race among a number of factors in the admissions process.

Further litigation and Supreme Court rulings on this contentious issue are inevitable.

What is an "Affirmative Action Plan"?

An employer or a public educational institution establishes an affirmative action plan (AAP) in order to address and eliminate discrimination. For example, a public university's AAP might include policies used during the admissions process. An employer's AAP could set forth guidelines for recruiting, hiring, and promoting members of minority groups and women to correct any past employment practices that were discriminatory. Many banks are required to implement AAPs. Employers that have entered into contracts to do business with the federal government must also develop AAPs.

Certain federal contractors, such as those in the construction industry, have federally-mandated "hiring goals" for women and minority candidates. However, these goals are not considered quotas, and failure to meet them is not automatically a violation of the law.

The Debate Continues

Affirmative action continues to be a subject of controversy, partly because it can be difficult to define and to apply fairly. Supporters argue that it provides opportunities to members of minority groups who have experienced—and still experience—unfair discrimination. Opponents argue that such policies amount to reverse discrimination.

Employers should keep up-to-date on this hot-button topic—and consult employment attorneys whenever necessary—to make sure their policies don't violate the law.

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