What is Affirmative Action?
Affirmative action programs seek to remedy past discrimination against women,
minorities, and others by increasing the recruitment, promotion, retention,
and on-the-job training opportunities in employment and by removing barriers
to admission to educational institutions. Because of the long history of discrimination
based on sex and race, most affirmative action programs have been directed
towards improving employment and education opportunities for women and minorities.
Affirmative action strategies include expanding the pool of job or admission
applicants through recruitment strategies which reach outside of traditional
channels such as the posting of job notices in places where women and minorities
are more likely to see them. In employment, affirmative action programs also
have sought to increase on-the-job training opportunities that are related
to occupational mobility within workplaces.
In some cases, affirmative action programs have been instituted by law or
court decree. In other cases, employers have established affirmative action
programs voluntarily to increase the pool of qualified applicants and to diversify
their workplaces.
Legal Origins of Affirmative Action for Women in Employment
Title VII of the Civil Rights Act of 1964 and Executive Order 11246, as
amended by Executive Order 11375 in 1967, provided the initial legal basis
for affirmative action for women in employment in the United States.
Title VII prohibits discrimination by any employer or labor union on the
basis of race, color, religion, sex, or national origin. The Equal Employment
Opportunities Commission (EEOC) was established to enforce Title VII, although
the agency only began to enforce the sex discrimination prohibition in the
late 1960s and only after intense pressure from women's organizations.
Title VII was further strengthened by the Equal Opportunity Act of 1972
which expanded coverage of the 1964 Act and increased the enforcement powers
of the EEOC. The Equal Employment Opportunity Act also empowered the Civil
Service Commission to review and approve equal opportunity plans and to monitor
the progress of federal agencies and departments in achieving equal opportunities
for women and minorities.
Executive Order 11246, signed into law in 1965 by President Johnson, barred
discrimination on the basis of race, color, religion, or national origin in
federal employment and in employment by federal contractors and subcontractors.
The Order requires executive departments and agencies to "maintain a positive
program of equal opportunities." Further, the Order requires federal contractors
and subcontractors to "take affirmative action to ensure that applicants are
employed, and that employers are treated during employment without regard
to their race, creed, color, or national origin. Specific actions, outlined
in the Order, include upgrades, transfers, recruitment, compensation, and
training.
In 1967, Executive Order 11375 expanded Executive Order 11246 to include
women. Women's groups, however, did not gain enforcement of the sex discrimination
provisions until 1973.
The Civil Service Reform Act of 1978 established a policy standard of a
"federal workforce reflective of the nation's diversity" and called for elimination
of the under-representation of women and minorities in federal employment.
1
Legal Origins of Affirmative Action for Women in Education
Title IX of the Educational Amendments of 1972 provides the basis for affirmative
action for women in education. Educational institutions receiving federal
funds are required to take "specific steps designed to encourage individuals
of the previously excluded sex to apply for admission."
In 1986, Title IX was gutted by the 1984 Grove City v. Bell U.S.
Supreme Court decision which ruled that the non-discrimination law did not
cover entire institutions, but instead only those programs directly receiving
federal funds. The Civil Rights Restoration Act of 1988 fully restored Title
IX as a weapon to be used to increase educational opportunities for women
and girls.
The U.S. Supreme Court and Affirmative Action2
U.S. Supreme Court decisions in the 1970's and 1980's reshaped the parameters
of affirmative action programs.
In Bakke v. University of California, the Supreme Court ruled against
a medical school admissions affirmative action program that reserved 16 out
of 100 places for minority students. The Court, however, also found that "race
conscious" admissions policies that took race into account as one of many
factors were constitutional.
In 1989, the Supreme Court upheld in its Weber decision a Kaiser
Aluminum and Chemical Corporation affirmative action program that earmarked
half of its trainee openings for black staff until racial parity was achieved
in their craftsperson labor force. In 1974, only 2% of skilled craft workers
at Kaiser were black. The Court found that Kaiser's affirmative action program
was acceptable as a remedy to past occupational segregation.
Similarly, in Fullilove v. Klutnick, the Court ruled in favor of
a minority business set aside program for business owners. In the 1987 U.S.
v. Paradise case, the Court upheld a federal district judge's order requiring
Alabama to promote one black state trooper for each white trooper promoted.
In the lone Supreme Court case specifically involving affirmative action
for women, Johnson v. Transportation Agency, Santa Clara County, the
Court upheld in 1987 a county affirmative action program that set goals for
achieving a workforce in which women, minorities and people with disabilities
would be represented in proportion to their population in the county's labor
force.
The Court has been hostile to the use of affirmative action criteria in
layoff programs. In Firefighters Local Union No. 1784 v. Stotts, the
Court in 1984 ruled that seniority systems could not be overridden in order
to remedy employment discrimination against blacks. The Court's decision in
Wygant v. Jackson in 1986 overturned a teachers' union collective bargaining
agreement that used seniority as the criteria for layoffs, unless minority
layoffs would reduce minority representation in the workforce.
In the 1989 Richmond case, the Supreme Court ruled against a city
ordinance that set aside 30% of public work funds for minority-owned construction
companies. The Court found that the Richmond case did not present ample
evidence of past discrimination.
1 U.S. Merit Systems Protection Board, A Question of Equity: Women and
the Glass Ceiling in the Federal Government, October 1992.
2 This section is in part based on Roberta Ann Johnson's "Affirmative
Action Policy in the United States: Its Impact on Women," Policy and
Politics 18:2 (1990), 77-90.
Copyright 2000, The Feminist Majority Foundation and New Media Publishing
Inc.
