Affirmative Action

Adverse impact may be found when a selection process for a particular job or group of jobs results in the selection of members of any racial, ethnic, or sex group at a lower rate than members of other groups may. The enforcement agencies will generally regard a selection rate for any group which is less than four-fifths (4/5) or eighty percent of the rate for the group with the highest selection rate as constituting evidence of adverse impact. Depending on the size of the sample and other factors, however, the enforcement agencies could measure adverse impact other than by the “80% rule”. In a particular case, of course, the final arbiter of the question would be the federal court.

Affected Class is any group of employees or former employees who are members of a protected group that has suffered or that continues to suffer the effects of unlawful discrimination.

Affirmative Action is a process in which employers identify problem areas in the employment of protected class members, set goals and take positive steps to ensure equal employment opportunities of a protected class where they are underrepresented in an organization in relation to their availability in the labor markets from which recruiting occurs.

The Affirmative Action Plan is the written document through which management assures that all persons have equal opportunities in recruitment, selection, appointment, promotion, training, discipline, and related employment areas. The plan is tailored to the employer’s workforce and the skills available in the labor force. It prescribes specific actions, goals, timetables, responsibilities and describes resources to meet identified needs. The plan is a comprehensive results-oriented program designed to achieve equal employment opportunity rather than merely to assure nondiscrimination.

Applicant Flow is the number of applicants applying for a particular job over a given period of time, analyzed by protected class characteristics.

The Applicant Pool is all candidates who have applied for a job, during the period the job was open, from whom a person is selected to fill the position.

Availability is an estimate of the number of qualified candidates available for employment, from which it is expected to recruit to fill positions in a given job group. Availability estimates are derived from Census 2000 data, unemployment data, educational statistics, higher education demo-graphical data, and other relevant entities, and current promotion-eligible workforce demographics.

Availability Analysis is an analysis that identifies the number of protected-class members available to work in the appropriate labor markets in given jobs.

Compliance is a situation in which an agency fully meets the requirements of laws, rules, and regulations and court cases that mandate nondiscrimination and affirmative action.

Discrimination occurs when individuals having a common characteristic such as age, ancestry, color, disability, national origin, race, religious creed, sex, sexual orientation, or veteran status are denied equal privilege or treatment.   

Disparate Effect or Disparate Impact is the result of an employment policy, practice, or procedure that, in practical application, has less favorable consequences for a protected class than for the dominant group.

Disparate Treatment is employment practices such as the use of tests or educational requirements, fair and neutral on their face, which are applied or administered in an unfair manner. An example would be using an “old boy network” to hire for jobs even though the positions have been posted.

Diversity is a broad concept that values all people equally, regardless of their differences.

Equal Employment Opportunity involves the right of persons to apply and be evaluated for employment opportunities without regard to race, color, religion, age, national origin, sex, disability, or Veteran status. It guarantees everyone the right to be considered solely on the basis of his or her ability to perform the duties of the job in question, with, or without reasonable accommodations as appropriate. Equal Employment Opportunity does not involve preferences.

Equal Employment Opportunity Commission (EEOC) is the federal government agency mandated to enforce Title VII of the Civil Rights Act of 1964, as amended. The Federal Commission on Equal Employment Opportunity has the power to bring suits, subpoena witnesses, issue guidelines that have the force of law, render decisions, provide legal assistance to complainants, etc., in regard to fair employment.

Ethnicity is a group classification in which members share a unique social and cultural heritage passed on from one generation to the next. Involves customs, language, religion, and other cultural factors.

Goals are good faith, quantitative employment objectives which employers voluntarily set as the minimum progress they can make within a certain time period (usually one year) to correct the underutilization of protected classes in their workforce.

Good Faith Efforts are broad, active effects to move affirmative action programs beyond the normal; the “extra mile,” pro-active and aggressive recruiting efforts.

Labor market is a geographical area from which it is reasonable to expect to recruit employees or, in the case of a promotional appointment from within or from statewide employment, reemployment or transfer list, the office(s), position(s), position classification(s), employment, reemployment or transfer list from which the promotional appointment is or may be made.

Occupational category is a set of job groups derived from the Equal Employment Opportunity Commission’s EEO-6 categories. There are seven occupational categories consisting of job groups with similar sets of primary functions:

• EEO 1 – Executive/Managerial
• EEO 2 – Faculty
• EEO 3 – Non-Instructional Professional
• EEO 4 – Clerical
• EEO 5 – Technical/Paraprofessional
• EEO 6 – Skilled Craft Workers
• EEO 7 – Service/Maintenance

Parity is a condition achieved in an organization when the protected class composition of its work force is equal to that in the relevant available labor force.

Protected Classes are protected classes are composed of individuals identified for protection under equal employment laws and regulations. Many of the protected classes historically have been subjected to discrimination. By alphabetical order, Rhode Island protected classes in employment are: age, ancestry, color, criminal record, genetic information, learning disability, marital status, past or present history of mental disability, mental retardation, national origin, physical disability, prior protected activity, race, religious creed, sex, sexual orientation, workplace hazards to the reproductive system.

Race is a group of people related by common descent or heredity.

Under-utilization is a disparity between the employment of members of a racial, ethnic, or gender group in a job or job group and their availability. Under-utilization is determined by conducting an availability analysis.

Utilization Analysis is an analysis that identifies the number of protected-class members employed and the types of jobs they hold in the organization.

Workforce Analysis is, for Affirmative Action purposes, a listing of each job title as it appears in payroll records, are ranked from highest paid to lowest paid within each department.

On March 6, 1961, President John F. Kennedy issued Executive Order 10925, which creates the Committee on Equal Employment Opportunity and mandates that projects financed with federal funds “take affirmative action” to ensure that hiring and employment practices are free of racial bias. This executive order is intended to affirm the government's commitment to equal opportunity for all qualified persons, and to take positive action to strengthen efforts to realize true equal opportunity for all.

On September 24, 1965, President Lyndon B. Johnson issued Executive Order 11246, prohibiting employment discrimination based on race, color, religion, and national origin by those organizations receiving federal contracts and subcontracts. In 1967, President Johnson amended the order to include sex on the list of attributes.

Executive Order 11246 also requires federal contractors to take affirmative action to promote the full realization of equal opportunity for women and minorities. The Office of Federal Contract Compliance Programs (OFCCP), under the Department of Labor, monitors this requirement for all federal contractors, including all UC campuses, and has developed regulations to which these contractors must adhere. For federal contractors employing more than 50 people and having federal contracts totaling more than $50,000, compliance with these regulations includes disseminating and enforcing a nondiscrimination policy, establishing a written affirmative action plan and placement goals for women and minorities, and implementing action-oriented programs for accomplishing these goals. Besides, an official of the organization must be assigned responsibility for the implementation of equal employment opportunity and the affirmative action program.

This landmark Supreme Court case imposed limitations on affirmative action to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority—affirmative action was unfair if it led to reverse discrimination. The case involved the Univ. of California, Davis, Medical School, which had two separate admissions pools, one for standard applicants, and another for minority and economically disadvantaged students. The school reserved 16 of its 100 places for this latter group.

Allan Bakke, a white applicant, was rejected twice even though there were minority applicants admitted with significantly lower scores than his. Bakke maintained that judging him on the basis of his race was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court ruled that while race was a legitimate factor in school admissions, the use of such inflexible quotas as the medical school had set aside was not. The Supreme Court, however, was split 5–4 in its decision on the Bakke case and addressed only a minimal number of the many complex issues that had sprung up about affirmative action.

While Bakke struck down strict quotas, in Fullilove the Supreme Court ruled that some modest quotas were perfectly constitutional. The Court upheld a federal law requiring that 15% of funds for public works be set aside for qualified minority contractors. The “narrowed focus and limited extent” of the affirmative action program did not violate the equal rights of non-minority contractors, according to the Court—there was no “allocation of federal funds according to inflexible percentages solely based on race or ethnicity.”

In July 1970, a federal court found that the State of Alabama Department of Public Safety systematically discriminated against blacks in hiring: “in the thirty-seven-year history of the patrol there has never been a black trooper.” The court ordered that the state reform its hiring practices to end “pervasive, systematic, and obstinate discriminatory exclusion of blacks.” A full 12 years and several lawsuits later, the department still had not promoted any blacks above entry level nor had they implemented a racially fair hiring system. In response, the court ordered specific racial quotas to correct the situation. For every white hired or promoted, one black would also be hired or promoted until at least 25% of the upper ranks of the department were composed of blacks. This use of numerical quotas was challenged. The Supreme Court, however, upheld the use of strict quotas in this case as one of the only means of combating the department’s overt and defiant racism.

This case involved affirmative action programs at the state and local levels—a Richmond program setting aside 30% of city construction funds for black-owned firms was challenged. For the first time, affirmative action was judged as a “highly suspect tool.” The Supreme Court ruled that an “amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.” It maintained that affirmative action must be subject to “strict scrutiny” and is unconstitutional unless racial discrimination can be proven to be “widespread throughout a particular industry.” The Court maintained that “the purpose of strict scrutiny is to `smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen `fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”

Cheryl Hopwood and three other white law-school applicants at the University of Texas challenged the school’s affirmative action program, asserting that they were rejected because of unfair preferences toward less qualified minority applicants. As a result, the 5th U.S. Court of Appeals suspended the university’s affirmative action admissions program and ruled that the 1978 Bakke decision was invalid—while Bakke rejected racial quotas it maintained that race could serve as a factor in admissions. In addition to remedying past discrimination, Bakke maintained that the inclusion of minority students would create a diverse student body, and that was beneficial to the educational environment as a whole. Hopwood, however, rejected the legitimacy of diversity as a goal, asserting that “educational diversity is not recognized as a compelling state interest.” The Supreme Court allowed the ruling to stand. In 1997, the Texas Attorney General announced that all “Texas public universities [should] employ race-neutral criteria.”

Note: June 23, 2003, Supreme Court ruling in Grutter v. Bollinger invalidates Hopwood.

A state ban on all forms of affirmative action was passed in California: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Proposed in 1996, the controversial ban had been delayed in the courts for almost a year before it went into effect.

In Gratz v. Bollinger, a federal judge ruled that the use of race as a factor in admissions at the University of Michigan was constitutional. The gist of the university’s argument was as follows: just as preference is granted to children of alumni, scholarship athletes, and others groups for reasons deemed beneficial to the university, so too does the affirmative action program serve “a compelling interest” by providing educational benefits derived from a diverse student body.

In the most important affirmative action decision since the 1978 Bakke case, the Supreme Court (5–4) upholds the University of Michigan Law School’s policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers “a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan’s undergraduate admissions program, which uses a point system that rates students and awards additional points to minorities, had to be modified. The undergraduate program, unlike the law school’s, does not provide the “individualized consideration” of applicants deemed necessary in previous Supreme Court decisions on affirmative action. See Grutter v. Bollinger.

In Parents v. Seattle and Meredith v. Jefferson, affirmative action suffers a setback when a bitterly divided court rules, 5–4, that programs in Seattle and Louisville, Ky., which tried to maintain diversity in schools by considering race when assigning students to schools, are unconstitutional.

In Fisher v. the University of Texas, the court allows universities to continue considering race as a factor in admissions to achieve diversity, but it does tell them that they must prove that “available, workable race-neutral alternatives do not suffice” before considering race. The court ruled 7–1 to send the case back to the U.S. Court of Appeals for the Fifth Circuit for further review to determine if the school passed the test of “strict scrutiny,” the highest level of judicial review. The ruling is considered a compromise between the court’s conservative and liberal factions.

The Supreme Court votes in a 4–3 decision that affirmative action is legal under the equal protection clause and should be upheld in the case of Fisher v. the University of Texas at Austin. The case was brought to the courts after a white female, Abigail Fisher, was rejected from the school in 2008. She believed that UT-Austin's method of race consideration did not meet the standards previously set by the Supreme Court and challenged the use of affirmative action in higher education.