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Is Affirmative Action on Life Support?

Weldon Latham is a senior partner in the Washington, D.C., regional office of Jackson Lewis LLP, chair of the firm’s corporate diversity counseling group and diversity advisory board chair for Deloitte.

Affirmative action was a hallmark accomplishment of the civil-rights movement. Since the Civil Rights Act of 1964 and Executive Order 11246, which prohibits federal contractors that conduct $10,000 or more in business annually from discriminating based on race, color, religion, sex or national origin, affirmative action has been an integral part of the legal landscape in the workplace. But some state school-admission initiatives and recent court rulings have caused affirmative action to come under attack. Racism and sexism, however, still exist.

Last year, for instance, the unemployment rate for Black-male college grads was 8.4 percent—nearly twice that of their white counterparts (4.4 percent). Is the equal-opportunity progress made during the civil-rights era losing traction? Why has affirmative action become such a political target? To get the answers, DiversityInc asked discrimination-law attorney Weldon Latham, who has been counseling corporations and federal agencies about affirmative action, equal opportunity and diversity for more than two decades.

DiversityInc: Court rulings and public opinion seem to be turning against affirmative action. What’s going on?

Latham: First, the phrase “affirmative action” began to take on a negative connotation in the 1980s and ’90s as opponents tried to make it synonymous with racial quotas and unfair preferences. So some suggest that corporate America replaced the phrase with “diversity” to enhance its acceptance in the workplace. Second, there have been a number of organized initiatives, such as Proposition 209 in California and Florida’s One Florida Initiative, to eliminate affirmative action in state contracting and public-school admissions. As a result, a few public-opinion polls found declining support for affirmative action because that phrase is often misunderstood by the polling respondents. Several recent Supreme Court cases also appear at first glance to undermine the tenets of affirmative action. Finally, some say without any substantiation that, with our increasingly diverse population (projected to be “majority minority” by mid-century) and the election of the nation’s first Black president, discrimination is a thing of the past and affirmative action is no longer needed.

DiversityInc: But isn’t affirmative action more relevant today?

Latham: As most minorities in this country well know, discrimination has not disappeared, although it is usually far more subtle today than in previous decades. Statistical studies, anecdotal stories, the large number of continuing EEOC charges, Office of Federal Contract Compliance Program (OFCCP) enforcement actions and Title VII lawsuits all demonstrate that discrimination is alive in the workplace. While the new anti-affirmative-action initiatives sponsored by its opponents in several states suggest an ongoing challenge, they have been enacted in only 10 percent of the states. Moreover, the court cases are not as anti-affirmative action as some would like us to believe.

DiversityInc: How did the Seattle School and Connecticut firefighter cases impact affirmative action?

Latham: You have probably heard the old adage “bad facts make bad law.” Those cases involved such unique, extreme and bad facts that the cases immediately resulted in a rejection of the type of “affirmative action” pursued in those instances. (The Hartford case was really not an affirmative-action case.) The cases largely just restated existing law and are consistent with previous interpretations of the legal limits on affirmative action. For example, the Seattle School system’s attempt at affirmative action clearly violated at least four requirements of previous Supreme Court precedent: It had never been a segregated system, race was the deciding factor rather than merely a “plus,” no race-neutral alternatives had been seriously considered, and the method was designed to “maintain,” rather than “attain,” a specified racial balance. The Ricci v. DeStefano firefighter case simply clarified that the organization needs a credible evidentiary basis for negating the results of a test; it did not address affirmative action. Remember that the landmark workplace affirmative-action cases—Weber (1979) and Johnson (1986)—are still good law, and they permit race- and sex-based decision making in the workplace provided the criteria of the cases is met (e.g., demonstrating underutilization or, as the court put it, a “manifest imbalance in traditionally segregated job categories”).

DiversityInc: How is affirmative action being applied in the workplace today?

Latham: I see a commitment to achieve positive change through diverse leadership. Take federal contractors, which cover a large proportion of the Fortune 500 companies. Since 1965, they have been required to prepare annual affirmative-action plans for their workplaces. This involves comparing their minority and female work forces with those in the labor pool and setting goals and establishing programs to overcome shortfalls. Execution of these plans has become integrated into the fabric of much of corporate America. There have been no significant cutbacks in OFCCP requirements with respect to these plans, and OFCCP has posted record collections from non-complying contractors in recent years. Many if not most of these companies have established diversity/compliance departments, with annual goals and objectives, monitoring, tracking and enforcement mechanisms, that often go beyond minimal OFCCP requirements. Again, the recent Supreme Court cases have had little impact on their daily operations in this area. In fact, one recent Federal Circuit Court case, Petit v. City of Chicago, held that the beneficial effects of diversity itself, without a demonstrated history of segregation, justify race-based decisions in the workplace, thereby expanding the legal basis for affirmative action.

DiversityInc: Why has affirmative action become such a political target?

Latham: First, opponents have used the rare instance of abuse as a means of attacking its underlying legitimate purposes. The most extreme example of affirmative-action abuse often used to criticize it is the so-called unqualified minority or woman being hired or selected for promotion over a non-minority or male. In my experience working with companies and hiring managers, this very seldom occurs. When affirmative action is properly utilized, companies expand their outreach, recruit from a larger labor pool, institute minority- and female-friendly policies and practices to assist in recruitment and retention and, thereby, make it more likely that highly qualified minorities and women will be identified, considered and selected for open positions and promotions. Even OFCCP affirmative-action regulations do not permit racial preferences in employment; they merely encourage both the elimination of barriers to equal opportunity and expanded outreach. Thus, it has been either a misunderstanding or a misrepresentation of the true application of affirmative action in the workplace that has led to its stigma.

DiversityInc: What do you see as the future of affirmative action?

Latham: Justice O’Connor predicted in Grutter v. Bollinger, the 2003 case in which the University of Michigan Law School’s affirmative-action admissions policy was upheld, that we were 25 years away from a level playing field. I want to share her optimism. But based on today’s reality, it will take substantially longer. At the same time, I am pleased with the progress particularly in the last 10 years. Corporate America is leading the charge by not only putting nondiscrimination policies and practices into place but also by actively outreaching to minorities, women and other underrepresented employees as part of the mission of diversity and inclusion—to make them feel fully integrated into the best the companies have to offer. As it was in 1954, all they are asking for is an opportunity to compete. Those opportunities are increasing, but the battle is not yet over. We all must remain vigilant to expose and eliminate discrimination and to take “affirmative action” to include all Americans in our workplaces, from the mailroom to the boardroom.

13 Comments

  • Anonymous

    Racism still exist and yes people try to hide, all minorities need to remeber racism truly exist.

  • Anonymous

    Interesting article on AA.

  • Anonymous

    Over the years, I have seen affirmative action transform from a well intended effort to end discrimination to a numbers driven effort by business to meet specific minority goals. The end result is that minorities were hired too often with little or no consideration of their ability. Minorities with the education and experience [myself included] often resisted jobs or promotions for fear of being labeled an “affirmative action” employee, as this only perpetuated a “seperate but equal” mentality.

    Racism still exists, but the answer is not and never will be creating an arbitrary means of selecting “numbers”. For those companies that hire based on talent, the value of a truly diverse workplace is evident

  • Anonymous

    A bad economy always makes matters worse as people see exclusion of others as creating better odds for their survival.

    Affirmative action has been misused or misapplied, and even used to divide and conquer inter and intra identified groups.

    Many advocates are no strangers to special interest group lobbyists and the politics of local funding and other outside pressures.
    Too many are not legally skilled or other wise properly trained and qualified, so even good intentions pave the road well,but in the wrong direction.

    Many of us who see whats wrong have no non conflicted place ot reaport and are blacklisted for bringing it up to boot.

    There are solutions but who is available to listen and act?

    Ps: Is there a better term for black listed as that term makes me uncomfortable!

  • Anonymous

    The underlying tenets of discrimination are still very much alive in workplaces today and are reasserting themselves with minorities that have previously made strides as well as new targets such as LGBT workers. I am with the writer in that I see a horizon for parity being much farther into the future than 25 years. Some of the workplace behaviors I have seen in the last 10 years, nurtured in a far less tolerant political arena indicate to me that people will always need to be vigilant when it comes to diversity initiatives. One need only look to the compsition of most corporate boards to see we still have a long way to go.

  • Anonymous

    Most people don’t even know what the words “affirmative action” mean. Most think the law means having “quotas” when only a court can decree that quotas should be used for failing to provide equal opportunity. Some think that AA is a way to make companies hire “unqualified”, when the law simply states that each person hired must meet the Bonifide Occupational Qualifications (BFOQ’s, established by the hiring company..
    I am convinced that if more people did their homework, then AA would be not only better understood but welcomed.
    Lastly, the individuals who have gained the most from AA are not minorities. They are “white Females.”

  • Anonymous

    I agree with much of the sentiments above. If one calls Affirmative Action “Quota” (meaning unqualified people of color, of course) often enough, sure it acquires a negative connotation. No one gets upset when an unqualified white man gets the job. To anyone who believes in the quota myth, there seems to be an assumption that ONLY a white man was the most qualified, under any circumstances. What business, in its right mind, would hire someone–anyone– who was unqualified to do the job? The cost of a search alone–particularly if it’s a national search–, not to mention the time and effort it takes to hire who can “hit the ground running” would give one pause.

  • Anonymous

    Racism has always been here and always will be unfortunately many companies have sought ways to resist the appearance of discrimination by hiring females in many cases consisting of white (THE PRIMARY BENEFICIARIES). However, in an effort to appease the quota aspect businesses are forced to hire those of color. Again this is, for the most part female. Those that represent the organization feel less threatened by females, which is why you’ll see so few males. The law is the law and companies will continue to discriminate as while they make attempt to fight against affirmative action. In reference to one comment I don’t care if people think I got a job because of affirmative action. It is the weak that let themselves be defined by others. Currently I possess four degrees which includes an MBA, but many whites, qualified and unqualified use networking. I’m tired of hearing how the most qualified gets the job I very rarely see this practiced. And it is always assumed that if you’re a person of color you’re not qualified. That is racism people so do I care what you think if I get the job? NO! Until one can provide protection against people that practice discrimination then it should be allowed to continue and enforced.

  • Anonymous

    Affirmative action completely cancels out any concept of a meritocracy – a system in which advancement is based on achievements, merits, accolades, abilities, etc. An America without a meritocratic system of advancement at work simply does not work. Evidence: the last 50 years of decline and rise of social degradation and poverty in urban and rural areas.

    Achievements are independent of race and gender and eventually, we all have to take this lesson on or suffer at our own hands.

    A human being who wins a race wins the race because that person wins the race. They don’t win the race because they are black, or white, or male, or female. To suggest otherwise is completely absurd and delusional.

    That person won the race because he or she trained harder, worked harder, pushed him or herself harder than the rest of the competition and emerged victorious.

    There is an old saying: “Someone is always rising and falling in America.”

    This is a land where the individual can make it to any great height and achieve any dream he or she aspires to, as long as her or she is willing to put in the work, the dedication, the loyalty, the hours, the effort, the time.

    Affirmative Action creates an invisible enemy within our own borders and subverts the American Dream that so many chase day in and day out.That invisible enemy is men in general and, as a sub-category, white men.

    Affirmative Action, I would assert, achieves nothing but the disempowerment of the very groups its purports to assist by creating spiteful and hateful dialog around those groups activities and desires to achieve: i.e. women and people of races other than white who want to become CEOs or company leaders or what have you.

    One responder to this thread said that racism is as old as time. S/He’s probably right.

    Here is something else that is as old as time: Competition. Remember competition? Before medals for 9th place were passed out in public schools?

    Affirmative action and political correctness are completely unrealistic ideological constructs that fail to reflect the clear reality: that there are a limited number of resources on planet Earth and there are billions of people competing for those resources. That’s all there is. The rest is just static, hurt feelings, noise, and the whinnies of people, white and of color, who are too lazy to get of their own rear-ends and be at the center of causing something to shift in their own lives.

    Until we human beings shift our vision from one of mere survival to one of actually living and working in peace and prosperity, our probable, almost certain future is this same conversation: one in which the minorities are these oppressed figures and males in general and white males in particular are the evil oppressors; one in which Democrats whine for liberal values and a forced and false sense of “fair” and one in which Republicans bang the drums of war and corporate values.

    There is a another way… there is a clearer way… to recognize that we are human first and whatever color we are second. To see one another for who we truly are: human beings, creators, capable of anything, no matter what our circumstances are. What would it be like in America if we were to let go of the notion of race altogether? What would it be like if we were to let go of the whole “men vs. women” conversation and transform that to a “men and women” conversation?

    It would take a measure of goodwill, kindness, generosity, and patience that I, as one American, refuse to believe in entirely dead, despite the circumstances in the world.

    Present to the flame of unity, would be able to shift the conversation from unproductive and repetitive drivel where we paint each other to be one another’s enemies to a conversation of action orienting us as members of the same team with a united purpose: rebuilding the economy of this great land and restoring the American Dream for one and all.

    May peace, abundance, prosperity, and kindness be yours, my fellow American.

  • Anonymous

    Affirmative Action is a powerful recruiting tool. It gives agency’s to compare Civilian Labor Force to that of the agency. It is still needed today! Yes, I beleive in competitition as well… but, how can one compete if they don’t even know the position is out there, because the manager hiring only told his select friends/family about the positon availible. He/she doesn’t seek recruiting in different pool areas. Once again, Affirmative Action, when done correctly, is a recruiting tool, it can tell you where to shift your application pools. The best qualified should be hired… no matter what the race. But, how can you get hired if you don’t even get the opportunity to apply. How many times in your organization you work in – you hear about someone getting hired into a position that you didn’t even know it was availible. Lastly, I’ve heard this statement made several times throughout my years, “It’s not what you know it’s who you know.” and that’s why we need Affirmative Action.

  • Anonymous

    One of the things Thurgood Marshal said when he won the Brown v. Board of Education Supreme Court Case was that we were just getting started. At issue is the “privileges and immunities” clause of the 14th Amendment. This article’s factual accuracy is disputed. Please see the relevant discussion on the talk page. (December 2009)

    The Slaughter-House Cases, 83 U.S. 36 (1873) was the first United States Supreme Court interpretation of the relatively new Fourteenth Amendment to the Constitution. It is viewed as a pivotal case in early civil rights law, reading the Fourteenth Amendment as protecting the “privileges or immunities” conferred by virtue of the federal United States citizenship to all individuals of all states within it, but not those privileges or immunities incident to citizenship of a state.The Court held that the Fourteenth Amendment’s Privileges or Immunities clause affected only rights of United States citizenship and not state citizenship. Therefore the butchers’ Fourteenth Amendment rights had not been violated. At the time, the Court viewed due process in a procedural light rather than substantively. The Court further held that the amendment was primarily intended to protect former slaves and so could not be broadly applied.

    This is a ruling that need to be challenged.

  • I am Hispanic, and with that said………when I entered the workforce I was under the impression that being minority gave me a “leg-up” in getting a job. Wrong, the compitition is fierce, and the reason why “whites” have a “leg-up” is because they know that and prepare for it intensely. They get educated and get experience at any COST. Being a minority means nothing if you don’t come prepared with the right credentials and experience. That’s what counts. Because the bottom line is, if a minority complains about not getting the job, the hiring authority just has to prove how much more qualified the person is that they hired over the person who was not. And that flies! The problem is in our education system. Also, the more money parents make the better the school system is. I am not saying that discrimination does not occur, however, there needs to be a reality check too.

  • We can talk until we’re blue in the face about affirmative action and how its designed to protect minorities. [deleted] I use to be an equal employment officer investigating discrimination and sexual harassment. Recently, I was demoted because I tried to investigate a race discrimination matter where a caucasian female was selected over 10 qualified african americans to a high position. In city goverment they have all the eeo officers of city agencies reporting to Agency heads. This is a joke because as EEO Officers your hands are still tied because the Agency head has the last word. In other words, we are limited to what we do. I have never been so humiliated in all my life. No one advocated for me. Not even my oversight agency. So, I ask you,” who advocates for EEO Officers when we are being discriminated against for doing our job?”

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