The Hindu Business Line : Affirmative action in the US: The simmering debate

The affirmative action concept, which has for long triggered a debate in the US, requires positive steps to be taken to provide equal employment opportunity. The action plans are subject to mandatory compliance procedures, through which Corporate America is committed to ensuring diversity in its workforce and encouraging suppliers belonging to minorities.

Affirmative action preferences had to be sufficiently flexible, temporary in duration, and narrowly tailored to avoid becoming rigid `quotas'.

Today, the term affirmative action (AA) is ubiquitous in the context of the Government's resolve to engage the private sector in fulfilling the aspirations of a section of the country's youth. Varyingly interpreted, the affirmative action concept has for long triggered a nationwide debate in the US.

An interesting affirmative action analysis, though countered by some critics, came up in Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, by William G. Bowen and Derek Bok. The river in The Shape of the River is a metaphor drawn from Mark Twain's Life on the Mississippi. Twain created an image of the river as physically central to the US and symbolically central to the progress of the country". For the authors, the river represents "the flow of talent through the country's system of higher education and on into the marketplace and larger society."

The concept of affirmative action was foreshadowed as early as the Reconstruction Era, which followed the American Civil War. Blacks have been an oppressed `caste' for most of the US history of statutory slavery and segregation. How best to resolve this contradiction between the egalitarian creed and the legacy of slavery has been the American dilemma.

Origin of the law

The origin of affirmative action law has been traced to the early 1960s. During the 1960s and early 1970s, the Civil Rights Movement and the Vietnam War inspired minorities and women to advocate collectively for increased equality and opportunity within US society.

The first phase, culminating in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, was shaped by the Presidency and Congress and emphasised non-discrimination under a "race-blind Constitution". Public and private employers with 15 or more employees are subject to a comprehensive code of Equal Employment Opportunity Regulations under Title VII of the 1964 Act.

The second phase, shaped primarily by federal agencies and courts, saw a shift toward minority preferences. By 1970, the phrase "affirmative action" connoted efforts to increase the number of African-Americans (and later, Hispanics) in US workplaces and on college campuses. Judicial rulings from this period recognised an "affirmative duty" cast upon local school boards by the Equal Protection Clause, to desegregate formerly "dual school" systems, and to eliminate the "vestiges" of state-enforced segregation.

An Executive Order required that all employers with 50 or more employees, and federal contracts in excess of $50,000, file written affirmative action plans with the government. These must include minority and female recruitment goals and timetables to which the contractor must commit his or her "good faith" efforts. Each federal department and agency must contribute to achieving a government-wide, annual procurement goal of at least 5 per cent with its own goal-oriented effort to create "maximum practicable opportunity" for minority and female contractors.

The first major legal setback for voluntary affirmation action was Regents of the University of California vs Bakke in 1978, in which the Supreme Court, in a fractured ruling, struck down an admission plan at the University of California, Davis, Medical School. The Court held that, by setting aside a specific number, or quota, of places by race, the school had violated Bakke's civil rights.

Race as `plus factor'

While the Court prohibited fixed racial quotas in colleges and universities, it allowed the use of race as a factor in admissions. College officials and higher-education groups took up the invitation to devise programmes that used race as a "plus factor" without setting aside any seats specifically for minority applicants.

Following the Court's lead, Congress and the Executive approved a panoply of laws and regulations, authorising "race-conscious" strategies to promote minority opportunity in jobs, education, and government contracting. Affirmative action preferences, however, had to be sufficiently flexible, temporary in duration, and narrowly tailored to avoid becoming rigid "quotas".

There has been an intermittent simmering conflict over racial preferences in college admissions. Hispanics comprise 12.5 per cent of the population, African-Americans 12.3 per cent. While Whites comprise 76.3 per cent of the general population, they make up more than 79 per cent of all medical faculty.

Minorities are more than 25 per cent of the population, but only hold 4.9 per cent of all medical faculty positions and 2.2 per cent of full-time positions.

Although a larger percentage of young adult African-Americans and Hispanics have completed college today compared to the situation 20 years back (30 per cent or more than triple the rate in 1950), their college completion rates continue to be significantly lower than the rate for Whites.

The backlash

A political and legal backlash against affirmative action emerged in the 1990s. The former US President, Mr Bill Clinton, turned down calls to scrap federal affirmative action programmes. Liberal supporters of affirmative action have used the diversity argument to defend affirmative action at elite universities and law schools.

The data they adduce refute a number of widely-believed myths about affirmative action — that it has lowered educational standards, hurt minorities more than it has helped them, and exacerbated rather than relieved racial tension. Critics have charged that the racial preferences amounted to "reverse discrimination" against white students and applicants.

Affirmative action plans may be undertaken voluntarily, as in the case of a private school's admission goals, imposed by the courts to protect civil rights or required by law to qualify for federal contracts.

According to the Office of Federal Contract Compliance Programmes (OFCCP), an agency of the US Labour Department, affirmative action is not preferential treatment. Nor does it mean that unqualified persons should be hired or promoted over other people.

What affirmative action requires is that positive steps must be taken to provide equal employment opportunity. The action plans are subject to mandatory compliance procedures. The current system uses a numerical rating that includes a 20-point bonus (out of a total possible score of 150) for `underrepresented minorities' — African, Americans, Hispanics and native Americans.

The OFCCP deals with 26 million, some 22 per cent of the total workforce (92,500 non-construction and 100,000 construction establishments). Contactors agree to an equal opportunity clause, for employment to be free of race, colour, religion or sex. Failure to comply with the non-discrimination clause is a violation of the contract.

Non-construction contractors (with 50 or more employees and government contracts of $50,000 or more) implement a written affirmative action programme. For construction contractors marked by mobility of employees, the OFCCP establishes goals and specifies affirmative action to increase the utilisation of minorities and women in skilled trades.

Numerical affirmative action goals are determined on the availability of qualified applicants in the job market or qualified candidates in employer's workforce.

Regulations prohibit quota and preferential recruitment and promotion under the pretext of affirmative action numerical goals. The OFCCP cannot penalise contractors for failure to comply with numerical goals.

Voluntary commitment

Corporate America voluntarily commits to affirmative action for developing and utilising the full potential of the entire population. Its policies manifest the two commitments:

(i) ensuring diversity in workforce by eliminating discrimination in recruitment and, often, through accepting numerical goals for increasing proportion of minorities in the staff; and

(ii) encouraging suppliers belonging to minorities to become part of their value chain. A number of US industry giants, such as Citigroup, Coca-Cola, Pepsi, Philip Morris and Xerox Corporation, have been hiring from among people of colour to the extent of over 30-40 per cent, intending representation of coloured employees "to be a mirror image of the communities" where they do business.

(The author is a former Managing Director, Concor.)

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