Affirmative Action Ever Since the Upheavals of Essay

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Affirmative Action

Ever since the upheavals of the 1960s precipitated a fundamental change in the way the United States regards civil rights, the notion of affirmative action has been regularly discussed and misunderstood throughout the national discourse. Requirements that certain employers enact affirmative action plans began with an executive order on the heels of the Civil Rights Act of 1964, Title VII of which specifies that employers may not discriminate on the basis of race, color, religion, sex or national origin. The executive order requiring that certain employers take affirmative action has subsequently been misunderstood to mean something other than it really does, because this order is nonetheless constrained by Title VII. By examining precisely which employers must maintain affirmative action plans and what those plans require them to do, one may understand the extent and limitations of affirmative action and how it relates to Title VII.

Before considering affirmative action plans themselves, it is useful to examine the legislation in question. The Civil Rights Act of 1964 "establishes a specific prohibition against employment discrimination on the basis of race, color, religion, gender, and national origin" so that "discrimination on these grounds by employers who have 15 or more employees is prohibited in all aspects of the employment process, i.e., job applications, hiring, termination, promotions, training, wages and compensation, and all other terms or conditions of employment" (U.S. Commission on Civil Rights, 1998). This prohibition extends beyond the applicant or employee to those people he or she associates with, so that an applicant or employee may not be discriminated against due to his or her association with a particular group (at the time of its enactment, this extension was especially relevant in the case of interracial marriages). The enforcement of the Civil Rights Act is performed by the Equal Employment Opportunity Commission, and its jurisdiction applies to all possible employers, whether they are public or private. The Civil Rights Act only prohibits discrimination, and does not include any affirmative action requirements.

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Those came a year later with President Lyndon Johnson's executive order 11246, which required "federal contractors to take "affirmative action" to end discrimination," meaning that only those private companies who contract with the federal government are required to examine their hiring practices and work environments in order to remove any practices or obstacles that might contribute to discrimination (Kelly & Dobbin, 2001, p. 87). This order was amended two years later to include gender, and furthermore, "Section 503 of the Rehabilitation Act of 1973 similarly requires covered Federal contractors to engage in nondiscrimination and affirmative action for qualified "handicapped" individuals" (U.S. Commission on Civil Rights, 1998). In addition to federal contractors, these requirements apply to employment with the federal government. In addition to conscientiously working to avoid discrimination, Johnson's order requires contractors to inform applicants and employees of their rights under Title VII in writing. Affirmative action is monitored and enforced by the Secretary of Labor, and in the case of federal contractors, this is done through the Office of Federal Contract Compliance Programs. If federal contractors fail to meet the requirements of their affirmative actions plans, punishment can range from the loss of a particular contract to being banned from federal contracts altogether.

The intent of affirmative action requirements and plans is not to maintain an artificially imposed ratio of different races, ethnicities, or genders in the workplace because this would specifically contravene Title VII of the Civil Rights Act, which in addition to prohibiting discrimination based on these factors also prohibits preferential treatment due to the same. Contrary to many popular opinions, affirmative action plans do not require anything like "quotas and preferential treatment in order to obtain race and gender proportional representation in the workforce," but rather require employers to conscientiously monitor their hiring and managerial practices such that even unintentional discrimination does not occur (U.S. Commission on Civil Rights, 1998). As Rubenfeld (1997, p. 427) notes, in the 1860s Congress actually enacted.....

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