Affirmative Action Laws

Affirmative action laws are federal legislation enacted by Congress, on behalf of citizens and the institutions and organizations they engage with. Affirmative Action legislation rules concern opportunities for historically excluded categories of persons, and their rights to protection from discrimination, bias, and discrepancies in distribution of compensation and benefits under law. Affirmative action policies usually focus on employment and education. In institutions of higher education, affirmative action covers school admission policies; providing underrepresented groups such as women and minorities equal access to education.

Affirmative action rules offer more than prohibition, APP entail procedures designed to eliminate any unlawful discrimination of applicants or employees; as well as remedy for past discrimination; and prevent future discrimination. Applicants or employees seeking admission or hire in an educational institution, or other organization are protected by special rights of hiring or advancement if classified as a woman or ethnic minority (i.e., non-Caucasian). The subject of much debate, opponents to affirmative action programs claim that implementation results in reverse discrimination against Caucasians. Quotas, say they, are unfair criteria, and do not account for actual performance record.

The culmination of a series of governmental proclamations, court precedent, and voluntary programs fostered by employers in the private sector, affirmative action programs were historically adopted by the latter with no mandate or receipt of public funding. This evidences that affirmative action policies have always had proponents, and education and employment contracts have always been subject to terms and conditions associated with politically actionable ideas about social inequalities, even if they were not enforceable under law until affirmative action was made policy.

The Office of Federal Compliance Programs (OFCCP) is in oversight of private entities which are government contractors under non-construction or construction contract. The OFCCP has forty-eight (48) District or Area offices, under the direction of six (6) Regional offices across the country. OFCCP compliance officers are in oversight of AAP compliance evaluations. Rules to agreements with federal contractors and subcontractors must be in accordance with affirmative action laws to.

All administrative activities must not discriminate regarding:

  • Color
  • Race
  • Sexual orientation
  • Sex
  • National or ethnic origin
  • Religion
  • Disability
  • Age
  • Status as a disabled veteran or Vietnam Era veteran

Government contractor must prepare and periodically update AAP annually. Audit of AAP is done by OFCCP scheduling selection letter. Additionally, Contractors are required to file EEO-1 and VETS-4212 reports, annually.

Similarly, employers recruiting candidates for hire must prioritize a quantifiable advance for qualified persons with disabilities, minorities, women, and covered veterans. Affirmative action programs implemented by employers can include education and training programs and outreach efforts. Affirmative action policies should be part of an organization’s written personnel policies. Employers with written affirmative action plans must file and update those documents annually. The contents of both mandatory and voluntary affirmative action plans are essentially the same.

The legal origins of current AAP laws are the result of extensive reform since the original enactment of Civil Rights legislation in 1964. The principles of affirmative action were reaffirmed by reform of the Civil Rights Act (1964) (34 CFR § 100.3(b)(6)(i)) in 1991. In 1997, California's Proposition 209 banned affirmative action. Michigan saw opposition to affirmative action in 2003, resulting in bar of the use of gender or race in government recruitment, hiring, contracting, or university admissions. The basis to U.S. federal legislation in Executive Order 10925 (1961) articulates that where government contracts are concerned, a contractor comply with AAP to meet employment law requirements.

Employment: Government Contractors

In 1961, President John F. Kennedy issued Executive order authorizing government contractors to implement APP to protect employees and applicants from discrimination. Since that time, government contractors have been mandated to comply with affirmative action in reporting to U.S. Department of Labor (DOL) Office of Federal Contract Compliance Programs.

Employment: General

Employers who contract with the government and are in receipt of other federal funds are mandated to implement and document AAP practice and metric reporting. Penalties for not maintaining AAP are due remedy as defined under the Civil Rights Act of 1964, when a court finds that an employer has violated a job candidate or employee with discrimination.


Recipients of federal funds are mandated to document their affirmative action metrics and practices. Educational institutions that have acted discriminatorily in the past must take affirmative action as a remedy. (34 CFR § 100.3(6)(ii)).

Affirmative Action in the 1990s and 2000s

In effort to repeal bans of affirmative action, Congress passed the Civil Rights Act of 1991. The act overturned the U.S. Supreme Court ruling in Watson v. Fort Worth Bank and Trust and Wards Cove Packing Company v. Antonio. The Act placed the burden of proof on employers in pay discrimination cases; mandating employers to evidence that employment practices resulting in pay discrimination were "job related" and "consistent with business necessity." In addition, the Civil Rights Act of 1991 entitled female and minority victims of discrimination up to $300,000 in compensatory remedies, plus back-pay and restitution.

When California voters enacted Proposition 209 in 1996, the preferential treatment of candidates on basis of race or gender in the areas of education, public employment, and contract agreements was outlawed at the state level. Prop 209 eliminated AAP in California. Despite that civil rights groups filed an injunction to block the measure, and the law took effect August 1997 when the appellate court overturned the injunction. The U.S. Supreme Court upheld the ruling to Proposition 209, and many states followed, leading to important reform of affirmative action programs.

In Michigan, the U.S. Supreme Court rulings in two landmark cases in 2003, Grutter v. Bollinger and Gratz v. Bollinger, upheld University of Michigan Law School decision to admit students based on ethnicity and race. The Court decision articulated that affirmative action was not adequate redress of past harm; only serving to compel state interest in diversity in society.

The Affirmative Action Debate

The debate over affirmative action has shown that the procedural elements of the law are just as important as the policy itself. Take, for example, the process to college and university admissions. While underrepresented student recruitment is a standard aspect of higher education institution outreach strategy, students that are offered the financial aid in coordination with those efforts, are more likely to apply to those campuses providing the on-campus support services to ensure academic success the first year.

Affirmative action programs are responsible for a reported up to 33 percent increase in the amount of minority applications to higher education institutions. Universities and colleges quite literally alter the population of a surrounding community as well, and statistics show how affirmative action can make or break minority representation on a campus. After the State of California abolished affirmative action, minority student admissions at University of California Berkeley fell by 61 percent, and 36 percent at UCLA respectively. When Texas abolished affirmative action in 1996, universities in the state saw Hispanic enrollment drop by 22 percent, and African-American enrollment drop by 46 percent.

While graduates who claim they have benefited from affirmative action programs indicate they have continued to gain from higher paying, better jobs, and have more opportunity than they would have without such assistance, the trend in diversity programs illustrates a split between states that guarantee affirmative action, and those that have eradicated it, both claiming victory in the name of true equality. Multi-cultural perspectives conjoin with proponents, arguing that a global society demands more thorough attention to diversity for institutions and organizations to be effective.

Affirmative action policies are but one piece of the multi-cultural diplomacy puzzle. However, the real concern for most U.S. citizens is, of course, the distributive effects and equal treatment. Affirmative action is meant to remedy centuries of social, racial, and economic oppression. Opportunity and socioeconomic status are quite clearly tied. How to better mobilize resources and processes to create better equity is met with a range of solutions, both in policy and in practice. Advocates support merit-based competition between students, yet maintain that affirmative action compensates for economic differentials in income.

Opponents to affirmative action argue that such policies may be unconstitutional under the 14th Amendment, Equal Protection Clause of the United States Constitution. Title VI of the Civil Rights Act of 1964, prohibiting discrimination based on color, race, or national origin by institutional recipients of federal financial assistance, also supports such a perspective. Some suggest that affirmative action policies lower standards and create the conditions for uneven accountability. The assertion is if standards for exam scores, grade-point average, or other performance criteria are reduced for underrepresented groups, the entire population will strive only to meet minimal requirements.

Moreover, affirmative action policies don’t necessarily help economically disadvantaged students, but benefit middle- and upper-class minorities. Class issues to emerge from affirmative action also suggest that special treatment only serves to induce racial prejudice. States should enact other policies or programs to create the conditions for equal opportunity, say opponents of those policies; raising the expectations for all students in effort to improve the college readiness and intellectual growth of U.S. students across the board.

Complication in AAL

The single biggest problem of affirmative action programs is the substantial record of controversial outcomes that those programs have resulted in, including harm done to intended beneficiaries. The theoretical criticism is that affirmative action is a "mismatch" for the real-world context of U.S. education institutions and work environments. In fact, evidence shows that though African Americans are more likely to enter college than are Caucasians of similar underrepresented backgrounds, they will attain far lower grades, ranking toward the bottom of a school program. Failure to matriculate among African American students given affirmative action priority from underrepresented communities are far more likely to drop out. Racial preference policies do not account for the complexities of poverty nor issues of self-confidence once on campus in an entirely different community from the one they came from.

The mismatch effect happens when a school extends to an admissions preference based on affirmative action, or because of a student's athletic prowess, or family legacy connection to the school, and a student finds their academic preparation has been inadequate in comparison to that of classmates. Affirmative action, then, is intended to protect the rights of minority students or junior employees, yet does not benefit them insofar that it does not prepare them for the opportunity.

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