Affirmative Action

Affirmative Action is a term of general application referring to government policies that directly or indirectly award jobs, admission to universities and professional schools, and other social goods and resources to individuals on the basis of membership in designated protected groups in order to compensate those groups for past discrimination caused by society as a whole. For political as well as prudential reasons reflecting racial sensitivities, public justification of affirmative action has tended to describe it as a logical extension of equality of opportunity for individuals. In fact, affirmative action embodies ideas that are philosophically antithetical to the principle of equal protection of the laws that is the basis of equality of opportunity. The essential difference is that affirmative action policies are designed to benefit persons on the basis of membership in a group, rather than according to individual qualifications and experience. Affirmative action focuses on the results of the procedures used by public and private organizations measured with respect to racial balance rather than on the existence of procedures that assure equal treatment of individuals irrespective of race, ethnicity, or sex. It can therefore be described as a civil rights policy premised on the concept of group rather than individual rights, which seeks equality of result rather than equality of opportunity.

As a general description of civil rights policy, affirmative action comprehends such matters as school desegregation, voting rights, housing sales and rentals, university admissions, the activities of federally funded agencies, and public and private employment. In each of these areas, there have been judicial decisions asserting the principles of group rights and equality of result that define affirmative action. The historical development and rationale of the policy are best illustrated, however, in employment discrimination law. Before the adoption of the Civil Rights Act of 1964, employers were permitted to select employees according to race or any other consideration, unlike the situation in voting or public education where racial discrimination was arguably unconstitutional. Accordingly, affirmative action in employment involved declaring practices that were lawful when they occurred unlawful, in order to justify awarding economic benefits to members of groups that were seen as victims of societal discrimination.

Affirmative action in employment originated in the 1960s in the policies of administrative agencies enforcing Title VII of the Civil Rights Act and Executive Orders Nos. 10 925 and 11 246 regulating federal contractors. In the 1970s the Supreme Court played a major role in rationalizing and legitimating the new race‐conscious approach to civil rights. In general, the Court proceeded on the theory that racial discrimination was by definition class discrimination and was essentially the same phenomenon regardless of where or in what form it appeared. The Court assumed that measures used in school desegregation and voting rights cases to remedy the effects of past discrimination, which took account of race and insisted on specific degrees of racial balance, could be applied in employment despite the substantially different nature of the activities involved. In the 1980s, the Supreme Court decisively protected and legalized affirmative action preferences in employment against the attempt of the executive branch to reorient civil rights policy in the direction of impartial individual rights and equality of opportunity.

Affirmative action challenges the traditional liberal principle that individuals have rights in respect of which they are entitled to be protected equally without regard to race or other irrelevant personal characteristics. The guarantee of these rights where government acts upon individuals establishes equality before the law (the principal meaning of equality of opportunity). To deny an individual his or her rights or treat the individual differently because of race is to discriminate. In contrast to this view, which may be referred to as the disparate treatment theory of discrimination, affirmative action postulates the disparate impact theory of discrimination. This theory asserts that discrimination is a statistical racial disparity resulting from employment practices or other social institutional activity that can not be justified as essential or necessary to business enterprise or the activity in question. According to this view, unlawful discrimination is not an intentional denial of rights motivated by racial prejudice. It is the social effects of legitimate social and economic practices measured by a standard of racial inclusiveness or proportional representation.

The disparate impact concept of discrimination was initially employed in school desegregation and voting rights cases, where courts held that racially neutral policies were unlawful because they had the effect of excluding African‐Americans. In Gaston County v. United States (1969), for example, the Supreme Court decided that a racially neutral literacy test was discriminatory on the ground that past school segregation denied African‐Americans equal educational opportunity, thereby preventing them from developing their intellectual ability in a way that would enable them to pass the test. In employment affirmative action based on the disparate impact theory was anticipated in seniority desegregation cases, in which courts held that racially integrated departmental classifications continued the effects of past (lawful) discrimination and were hence unlawful under Title VII.

In the landmark decision in Griggs v. Duke Power Co. (1971), the Supreme Court adopted the disparate impact concept of discrimination as the theoretical framework for enforcing Title VII. The Court held unanimously that an aptitude test and high school graduation requirement used by a company to select employees were unlawful because they had a disparate racial impact. The company had practiced racial discrimination before the enactment of Title VII, and its introduction of testing as a selection device at the time the act went into effect might have been judged intentionally discriminatory against African‐Americans. The Court did not find intentional discrimination, however. Declaring that Title VII was directed at the consequences of employment practices and that Congress intended that the posture and condition of the job seeker be taken into account, Chief Justice Warren Burger said practices that operated to exclude African‐Americans were illegal unless shown to be related to job performance, or justified by “business necessity.”

Griggs was broadly applied by the lower courts to strike down employment practices shown to have a disparate racial impact. Affirmed in Albemarle Paper Co. v. Moody (1975), the disparate impact theory of Title VII enforcement provided a strong incentive for private and public employers, who were brought under Title VII coverage in 1972, to engage in race‐conscious hiring to avoid discrimination charges based on statistics of racial imbalance. Concurrently, federal executive agencies, acting under regulations of the Office of Federal Contract Compliance, required employers to submit written affirmative action plans specifying goals and timetables to correct “underutilization” of minority groups and women.

Most large employers, who were covered by both Title VII and the contract compliance program, responded as expected by engaging in preferential practices. As affirmative action plans were put into effect, white male employees began to file discrimination suits charging unlawful practices under the Civil Rights Act. In the late 1970s three reverse discrimination cases in the Supreme Court challenged the emerging structure of affirmative action under the disparate impact theory.

In Regents of the University of California v. Bakke (1978), the Supreme Court considered a medical school affirmative action plan that assigned sixteen of one hundred places in its entering class to members of minority groups. Bakke, whose qualifications were superior to those of most of the minority admittees, claimed that the plan violated his statutory and constitutional right to equal protection of the laws. In an artfully contrived compromise, for which Justice Lewis Powell was the sole spokesman, the Court in effect handed down two decisions. It decided, 5 to 4, that the affirmative action plan was an illegal quota that denied Bakke's right not to be discriminated against because of race. Justice Powell declared, however, that race‐conscious policies adopted as a remedy for proven discrimination, which by 1978 had assumed considerable proportions in employment, were permissible under the Civil Rights Act and the Constitution. Joining with a different group of justices to form a pro‐affirmative action majority, Powell, in what amounted to a second decision, held that race was a legitimate factor that could be considered in a state university's admission policy, on the theory that it advanced the First Amendment value of “diversity.”

Although Bakke struck down an absolute quota, it protected the evolving structure of affirmative action in higher education and in agencies subject to the nondiscrimination requirements imposed on federally funded activities under Title VI of the Civil Rights Act. In United Steelworkers of America v. Weber (1979), the Court broadened the scope of affirmative action under Title VII. It rejected a reverse discrimination claim by a white male employee against a joint labor union and employer affirmative action plan that imposed a 50 percent racial quota under contract compliance pressure and the threat of Title VII discrimination charges. For the 5‐to‐4 majority, Justice William cBrennan said the quota was a form of private and voluntary affirmative action that, although it could not be required by government officials enforcing Title VII, was permitted under the law in order to “eliminate manifest racial imbalance in traditionally segregated job categories.” Whereas in previous quota cases preferential measures were ordered by lower courts as a remedy for unlawful discrimination, the Supreme Court in Weber approved a quota without requiring a finding of illegal practices. It protected race‐conscious policies that employers and unions were forced to adopt under the disparate impact theory of discrimination and the concept of underutilization in contract compliance.

The Supreme Court further expanded affirmative action in Fullilove v. Klutznick (1980). At issue was the constitutionality of a provision in the Public Works Employment Act of 1977 requiring that 10 percent of all federal grants awarded by the Department of Commerce be given to minority business enterprises. Rejecting a white contractor's charge of discrimination, the Court decided, 6 to 3, to uphold the law as an exercise of congressional power under the Fourteenth Amendment to prohibit public contracting practices that perpetuated the effect of past discrimination. Although several justices used remedial rhetoric, the Court did not require a finding of unlawful discrimination as a predicate for racial preference. Directed against societal discrimination, the decision sanctioned broad congressional authority to legislate racial preferences that in reality rested on the principle of proportional racial representation under the disparate impact theory of discrimination.

In the 1980s the Reagan administration tried to stop the spread of affirmative action. Although enforcing Title VII under the disparate impact theory and seeking remedies for victims of unlawful practices, the Department of Justice challenged the legality of quotas whether imposed by judicial decree or adopted “voluntarily” by employers. It argued that preferential treatment for members of a minority group who were not themselves victims of discrimination, in order to redress societal discrimination against the group as a whole at the expense of innocent non‐minority individuals rather than the employer who might have discriminated, violated the non‐discrimination requirements of Title VII and exceeded the scope of judicial authority under the act. The Justice Department's litigation policy forced the Supreme Court, after years of avoiding the issue, to decide on the legality of Title VII quota remedies.

In a series of decisions in the mid‐1980s, the Supreme Court reaffirmed the legality of quotas and defined the scope of race‐conscious affirmative action. In Local 28 Sheet Metal Workers International Association v. Equal Employment Opportunity Commission (1986), the Court approved, 5 to 4, a lower court quota order that imposed a 29 percent membership goal on a union found in violation of Title VII. For the Court, Justice Brennan declared that quota or “race‐conscious class relief” was appropriate where an employer or union “has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination” (p. 445). In Local 93 International Association of Firefighters v. City of Cleveland (1986), the Court upheld a consent decree between the city and a class of minority employees that provided for promotion quotas. Justice Brennan's majority opinion viewed the consent decree as a form of voluntary affirmative action that did not infringe the rights of nonminority employees. And in United States v. Paradise (1987), the Court affirmed, 5 to 4, the constitutionality of a 50 percent promotion quota ordered as a remedy for egregious discrimination by a state police department. Describing the standards for adopting an affirmative action plan, Justice Brennan said the quota order was flexible, temporary, and fair to white employees because it merely postponed their advancement rather than dismiss them.

From its inception in the 1960s, the underlying logic of the disparate impact theory of discrimination was to induce employers to engage in preferential practices as though they were doing it voluntarily, rather than under the threat of discrimination suits based on statistical disparities. The effectiveness of the policy further required protecting employers against reverse discrimination charges when they took affirmative action, without admitting to past discrimination that would have opened them to Title VII suits by minority group individuals. In Johnson v. Santa Clara County (1987), the Supreme Court confirmed this fundamental rationale. It rejected a white male employee's claim of discrimination against a public employer's gender‐based preference under a voluntary affirmative action plan. Clarifying and going beyond Weber, the Court dispensed with the idea that affirmative action is a remedy for unlawful discrimination. For the majority, Justice Brennan said the use of race or sex as a consideration in job selection was justified by “the existence of a ‘manifest imbalance’ that reflected an underrepresentation of women ‘in traditionally segregated job categories’” (p. 617). In Johnson, the Court acknowledged that affirmative action is a prospective policy based on the idea of group rights that aims at achieving racial and gender balance, under the idea of proportional representation that is inherent in the disparate impact theory of discrimination.

While broadly approving race‐conscious measures, the Court placed some limits on affirmative action. In Firefighters Local Union No. 1794 v. Stotts (1984), the Court decided, 6 to 3, that a judicial order modifying a consent decree to protect black affirmative action hires from being laid off under a seniority agreement exceeded judicial authority under Title VII. In Wygant v. Jackson Board of Education (1986), the Court held, 5 to 4, that an affirmative action plan that protected minority employees against layoff and caused the layoff of more senior white teachers violated the equal protection clause of the Constitution. These decisions reflected the solicitude for seniority rights evident in Teamsters v. United States (1977), where the Supreme Court overruled a line of precedents conferring benefits to blacks under the present‐effects doctrine, and held that intent to discriminate must be proved in order to find a seniority system unlawful.

Having protected affirmative action against the Reagan administration's antiquota policy, the Supreme Court in 1989 appeared to shift course by modifying the evidentiary rules for proving discrimination under the disparate impact theory. Easing the burden on employers defending against discrimination charges, the Court limited the tendency toward quotas inherent in the disparate impact concept and merged the disparate impact and disparate treatment ideas in a unified theory of employment discrimination. In Ward's Cove Packing Co. v. Atonio (1989), the Court stated that in a disparate impact case the burden of proof remained on the plaintiff throughout the trial, as in a disparate treatment case. It held further that a simple statistical comparison of racial percentages between skilled and unskilled jobs was insufficient to make a prima facie case. And it said that in defending against a disparate impact charge, the employer was required to show only that its practices served legitimate business purposes, not that they were essential or indispensable.

The Court further tightened the rules of affirmative action in Richmond v. J. A. Croson Co. (1989). In a 6 to 3 decision, it struck down a city‐ordered 30 percent quota for minority contractors as an unconstitutional violation of the rights of white contractors. Applying for the first time the standard of strict scrutiny review to a benign racial classification, the Court held that the set‐aside was defective because it was not justified by a showing of past discrimination in public contracting.

In 1990, the Court continued its zig‐zag course on affirmative action by approving preferential treatment in the broadcasting industry. In Metro Broadcasting v. Federal Communications Commission, the Court declared, 5 to 4, that an FCC policy favoring minority broadcasters, which Congress through the appropriations process had required the agency to maintain, was substantially related to achieving the important governmental objective of broadcast diversity. Affirming congressional power to legislate racial preferences under the standardless appropriations power (in contrast to the more limited legislative power under the Fourteenth Amendment), the Court focused on the future benefits rather than the remedial justification of affirmative action.

Metro Broadcasting, like Johnson, reflected the tendency of supporters of affirmative action to view group rights and equality of result as principles of public policy needed to overcome societal discrimination. Despite the reservations about the disparate impact theory of discrimination expressed by the Supreme Court in Ward's Cove, as the struggle to define the meaning of equality continued in the 1990s, affirmative action remained solidly entrenched in the policies of the civil rights bureaucracy. With the passage of the Civil Rights Act of 1991, Congress overturned Ward's Cove and other recent decisions that had limited the scope of federal civil rights protections, thereby reaffirming the national commitment to the principles of affirmative action.

See also Employment Discrimination; Race and Racism.

Herman Belz