Is Affirmative Action on Life Support?

Is the equal-opportunity progress made during the civil-rights era losing traction? Why has affirmative action become such a political target? Discrimination-law attorney Weldon Latham provides answers here.

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.

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