AFFIRMATIVE ACTION

The United States Commission on Civil Rights defines affirmative action as: "A contemporary term that encompasses any measure, beyond simple termination of a discriminatory practice, that permits the consideration of race, national origin, sex or disability, along with any other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or actually been denied those opportunities and /or to prevent the recurrence of discrimination in the future."

Beginning with the creation of the Committee on Equal Employment Opportunity and President John F. Kennedy's Executive Order 10925 to take "affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex or national origin," to the present-day debate over race-based admissions policies at the University of Michigan, affirmative action has had a long and complex history in the United States. Herewith, a timeline of affirmative-action policies in this country.

1961
President John F. Kennedy signs Executive Order (E.O.) 10925, which instructs federal contractors to take "affirmative action" when it comes to assigning contracts. The order results in the creation of the Committee on Equal Employment Opportunity.

1964
The Civil Rights Act of 1964 was signed into law. This was landmark legislation prohibiting employment discrimination by large employers (with more than 15 employees), whether or not they have government contracts. Established the Equal Employment Opportunity Commission (EEOC).

1965
President Lyndon B. Johnson issued E.O. 11246, requiring all government contractors and subcontractors to take affirmative action to expand job opportunities for minorities. Established Office of Federal Contract Compliance (OFCC) in the Department of Labor to administer the order.

1967
President Johnson amended E.O. 11246 to include affirmative action for women. Federal contractors now required to make good-faith efforts to expand employment opportunities for women and minorities.

1970
The Labor Department, under President Richard M. Nixon, issued Order No. 4, authorizing flexible goals and timetables to correct "underutilization" of minorities by federal contractors.

1971
Order No. 4 was revised to include women.

1971
President Nixon issued E.O. 11625, directing federal agencies to develop comprehensive plans and specific program goals for a national minority Business Enterprise (MBE) contracting program.

1973
The Nixon administration issued "Memorandum-Permissible Goals and Timetables in State and Local Government employment Practices," distinguishing between proper goals and timetables and impermissible quotas.

1978
The U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 912 (1978) upheld the use of race as one factor in choosing among qualified applicants for admission. At the same time, it also ruled unlawful the University Medical School's practice of reserving 18 seats in each entering class of 100 for disadvantaged minority students.

1979
President Jimmy Carter issued E.O. 12138, creating a National Women's Business Enterprise Policy and requiring each agency to take affirmative action to support women's business enterprises.

1979
The Supreme Court ruled in United Steel Workers of America, AFL-CIO v. Weber, 444 U.S. 889 (1979) that race-conscious affirmative-action efforts designed to eliminate a conspicuous racial imbalance in an employer's workforce resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees.

1983
President Ronald Reagan issued E.O. 12432, which directed each federal agency with substantial procurement or grant-making authority to develop a Minority Business Enterprise (MBE) development plan.

1985
Efforts by some in the Reagan administration to repeal Executive Order 11246 were thwarted by defenders of affirmative action, including other Reagan administration officials, members of Congress from both parties, civil-rights organizations and corporate leaders.

1986
The Supreme Court in Local 128 of the Sheet Metal Workers' International Association v. EEOC, 478 U.S. 421 (1986) upheld a judicially-ordered 29 percent minority "membership admission goal" for a union that had intentionally discriminated against minorities, confirming that courts may order race-conscious relief to correct and prevent future discrimination.

1987
The Supreme Court ruled in Johnson v. transportation Agency, Santa Clara County, Calif., 480 U.S. 616 (1987) that a severe under representation of women and minorities justified the use of race or sex as "one factor" in choosing among qualified candidates.

1989
The Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) struck down Richmond's minority contracting program as unconstitutional, requiring that a state or local affirmative-action program be supported by a "compelling interest" and be narrowly tailored to ensure that the program furthers that interest.

1994
In Adarand Constructors, Inc. v. Pena, 513 U.S. 1012 (1994) the supreme Court held that a state or local affirmative-action program remains constitutional when narrowly tailored to accomplish a compelling government interest such as remedying discrimination.

1995
President Bill Clinton reviewed all affirmative-action guidelines by federal agencies and declared his support for affirmative-action programs by announcing the administration's policy of "mend it, don't end it."

1995
Senator Robert Dole Representative Charles Canady introduced the so-called Equal Opportunity Act in Congress. The act would prohibit race or gender based affirmative action in all federal programs.

1995
The Regents of the University of California voted to end affirmative action programs at all University of California campuses. Beginning in 1997 for graduate schools and 1998 for undergraduate admissions, officials at the University were no longer allowed to use race, gender, ethnicity or national origin as a factor in admissions decisions.

1995
The bipartisan Glass Ceiling Commission released a report on the endurance or barriers that deny women and minorities access to decision-making positions and issued a recommendation "that corporate America use affirmative action as a tool ensuring that all qualified individuals have equal access and opportunity to compete based on ability and merit."

1996
California's Proposition 209 passed by a narrow margin in the November election. Prop. 209 abolished all public-sector affirmative action programs in the state in employment, education and contracting. Clause (C) of Prop. 209 permits gender discrimination that is "reasonably necessary" to the "normal operation" of public education, employment and contracting.

1996
In Texas v. Hopwood, 518 U.S. 1033 (1996) the U.S. Court of Appeals for the Fifth Circuit ruled against the University of Texas, deciding that its law school's policy of considering race in the admissions process was a violation of the Constitution's equal-protection guarantee. The U.S. Supreme Court declined to hear an appeal of the ruling because the program at issue was no longer in use.

1997
Voters in Houston supported affirmative action programs in city contracting and hiring by rejecting an initiative that would banish such efforts. Houston proved that the wording on an initiative is a critical factor in influencing the voters' response. Instead of deceptively focusing attention on "preferential treatment," voters were asked directly if they wanted to "end affirmative action programs." They said no.

1997
The U.S. Supreme Court refused to hear a challenge to California's Prop. 209. By declining to review the case, the court did not decide the case, the court did not decide the case on its merits but allowed Prop. 209 to go into effect.

1997
The U.S. House Judiciary Committee voted 17-9, on a bipartisan basis, to defeat legislation aimed at discriminating federal affirmative action programs for women and minorities. Representative George Gekas (R-Pa.), who moved to table the bill, said that the bill was "useless and counterproductive. I fear that forcing the issue at this time could jeopardize the daily progress being made in ensuring equality."

1997
Bill Lann Lee was appointed Acting Assistant Attorney General for Civil Rights after facing opposition to his confirmation because of his support for affirmative action when he worked for the NAACP Legal Defense and Educational Fund.

1997
Lawsuits were filed against the University of Michigan and the University of Washington School of Law regarding their use of affirmative action policies in admissions standards.

1997
In response to Hopwood, the Texas legislature passed the Texas Ten Percent Plan, which ensures that the top ten percent of students at all high schools in Texas have guaranteed admission to the University of Texas and Texas A&M system, including the two flagships, UT -- Austin and A&M College Station.

1998
Both the United States House of Representatives and the United States Senate thwarted attempts to eliminate specific affirmative action programs. Both houses rejected amendments to abolish the Disadvantaged Business Enterprise program funded through the Transportation Bill, and the House rejected an attempt to eliminate use of affirmative action in admissions in higher education programs funded through the Higher Education Act.

1998
Ban on use of affirmative action in admissions at the University of California went into effect. UC Berkeley had a 61 percent drop in admissions of African American, Latino/a and Native American Students, and UCLA had a 36 percent decline.

1998
Voters in Washington passed Initiative 200 banning affirmative action in higher education, public contracting and hiring.

2000
Many Circuit Courts throughout the country heard cases regarding affirmative action in higher education, including the 5th Circuit in Texas (Hopwood), the 6th Circuit in Michigan (Grutter and Gratz), the 9th Circuit in Washington (Smith), and the 11th Circuit in Georgia (Johnson). The same district Court in Michigan made two different rulings regarding affirmative action in Michigan, with one judge deciding that the undergraduate program was constitutional while another judge found the law school program unconstitutional.

2000
The Florida legislature passed "One Florida" Plan, banning affirmative action. The program also included the Talented 20 Percent Plan that guarantees the top 20 percent admission to the University of Florida system.

2000
In an effort to promote equal pay, the US Department of Labor promulgated new affirmative action regulations including an Equal opportunity Survey, which requires federal contractors to report hiring, termination, promotions and compensation data by minority status and gender. This is the first time in history that employers have been required to report information regarding compensation by gender and minority status to the federal equal employment agencies.

2000
The 10th Circuit issued an opinion in Adarand Constructors v. mineta, 228 F.3d 1147 (10th Cir. 2000) and ruled that the Disadvantaged Business Enterprise as administered by the Department of Transportation was constitutional because it served a compelling government interest and was narrowly tailored to achieve that interest. The court also analyzed the constitutionality of the program in use when Adarand first filed suit in 1989 and determined that the previous program was unconstitutional. Adarand then petitioned the Supreme Court for a writ of certiorari.

2001
In Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) the Supreme Court dismissed the case as "improvidently granted," thereby leaving undisturbed the 10th Circuit's decision, which upheld the government's revised federal contracting program.

2001
California enacted a new plan allowing the top 12.5 percent of high school student's admission to the UC system, either for all four years or after two years outside the system, and guaranteeing the top 4 percent of all high school seniors' admission into the UC system.

2002
The Sixth Circuit handed down its decision in grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) on May 14, 2002, and upheld as constitutional the use of race as one of many factors in making admissions decisions at the University of Michigan's Law School. A decision in the companion case involving the Undergraduate school at the University of Michigan, Gratz v. Bollinger, is imminent.

Myth #1 - Minorities and women receive preferences.
Reality: Affirmative action does not require preferences; women and minorities do not assume that they will be given preference. Race, gender, and national origin are factors to be considered when hiring or accepting qualified applicants. Hiring qualified women and minorities is not dissimilar to the preferences given to veterans in hiring and children of alumni in college admission. Other preferences are used in selecting qualified candidates. For example, when colleges and universities value geographic diversity on their campuses, it may be easier for an in-state student to be admitted than one from out of state. Some colleges and universities consider athletic abilities and/or evidence of leadership skills in addition to test scores.

Myth #2 - Affirmative action is really quotas.
Reality: Affirmative action has never been about quotas. It has always been about providing women and minorities with full educational and workplace opportunities. under existing law, quotas are illegal. Federal contractors are required to establish goals and timetables and to make a good faith effort to meet them. Race, national origin and gender are among several factors to be considered, but relevant and valid job or educational qualifications are not to be compromised. Furthermore, the Supreme Court has been clear that the misuses of affirmative action or programs that claim to be affirmative action are illegal if: (1) an unqualified person receives benefits over a qualified one; (2) numerical goals are so strict that the plan lacks reasonable flexibility; (3) the numerical goals bear no relationship to the available pool of qualified candidates and could therefore become quotas; (4) the plan is not fixed in length; or (5) innocent bystanders are harmed.

Myth#3 - Affirmative action leads to reverse discrimination.
Reality: Evidence demonstrates that reverse discrimination is rare. For example, of the 91,000 employment discrimination cases before the Equal Employment Opportunities Commission, less than 2 percent are reverse discrimination cases. Further, a study conducted by Rutgers University and commissioned by the US Department of Labor found that reverse discrimination is not a significant problem in employment and that a "high proportion" of claims brought by white men are "without merit." What affirmative action does is provide the employer with the largest pool of qualified applicants to choose.

Myth #4 - Title VIII alone is sufficient to address discrimination.
Reality: Affirmative action means taking positive, pro-active and preemptive steps to root out discrimination, rather than waiting for after-the-fact litigation. Title VII is enough to address discrimination, but it will do so only after an instance of discrimination has been claimed. Affirmative action policies are a means to end discrimination in a far less costly and disruptive way than protracted litigation.

Myth#5 - Unqualified individuals are being hired and promoted for the sake of diversity/affirmative action.
Reality: Only affirmative action plans that do not compromise valid job or educational qualifications are lawful. They must be flexible, realistic, reviewable and fair. The Supreme Court has found that there are at least two permissible bases for voluntary affirmative action by employers under Title VII: (1) to remedy a clear and convincing history of past discrimination by the employer or union, and (2) to cure a manifest imbalance in the employer's work force. No doubt there are instances where poor management practices may have resulted in the hiring of unqualified people; however, these are examples of error and/or abuse of affirmative action that should be considered by the President's review and corrected by additional management training and public education. They do not indict affirmative action itself as a tool for achieving equality of opportunity for all..

Myth #6 - The federal government should not promote affirmative action through government contracts.
Reality: Enactment of the 1964 Civil Rights Act created an obligation of the federal government to enforce the principle of equal opportunity in employment embodied in the Title VII. One of the enforcement strategies employed by the federal government is to place conditions upon contracts awarded by the federal government involving the expenditure of federal funds. These funds come from taxes paid by women and minorities who are entitled to a fair portion of federal contracts. The original Executive Order and Subsequent executive orders requiring affirmative action in federal contracts awards have been bipartisan support from the U.S. Presidents and members of Congress, and from leaders in the business community because they have been a reasonable and effective way to enforce the law.

Myth #7 - Underrepresentation of minorities and women in the corporate world (or other high-paying jobs) is not due to discrimination.
Reality: Discrimination is not the sole reason for the lack of women and minorities in the corporate world. However, we must deal with history; we must deal with past and present discrimination. A study of the 1982 Stanford MBA graduating class found that after 10 years, 16 percent of men held CEO titles compared to 2 percent of the women, 23 percent of males were corporate vice presidents, compared to 10 percent of women, while 15 percent of men served as directors, compared to 8 percent of women. Obviously barriers to employment and promotion still exist for women and minorities. Affirmative action opens the doors to opportunity and advancement.

Myth #8 - The pay difference between men and women is not due to discrimination.
Reality: A 1989 report by the national Research Council of the National Academy of Sciences confirmed earlier research by the National Academy of Sciences in 1981 that found that one-half to one-fourth of the earning differential between men and women could not be explained by legitimate difference in education, training, experience and characteristics of jobs. A study by Professor Peter Hammerschmidt in the Management Institute of Eckerd College, St. Petersburg, Florida, found that female managers were paid on average $11, 447 less than male managers, even when the women had identical levels of experience, skill, job titles, education and age.

Myth #9 - Women benefit more than African-Americans from affirmative action.
Reality: Both women and minorities benefit from access to full educational and workplace opportunities to redress past discrimination. To pit these groups against each other is wrong. Affirmative action programs give needed opportunities for both women and minorities.