Labor and Employment

Affirmative Action

A number of federal, state, and local laws forbid discrimination against individuals or classes of persons based on factors such as race, color, national origin, sex, religion, and disability. Among the best known federal laws that prohibit discrimination in the workplace are the Title VII of the Civil Rights Acts of 1964 and 1991, which addresses illegal discrimination by employers, and the Rehabilitation Act of 1973, which protects individuals with disabilities from discrimination in several areas, including education and employment.

Definition and Purpose of "Affirmative Action"

The term "affirmative action" is not readily defined; in fact, controversy has long surrounded both the definition and the means necessary to achieve the desired goals of affirmative action. Commentators have cautioned that affirmative action and strict minority quota systems not be confused with one another. The concept and actual application of affirmative action is usually confined to two areas: education and employment. An employer or a school takes affirmative action when it puts in place programs, plans, and efforts designed to ensure that people who belong to minority groups receive equal opportunity and fair treatment and are not subject to discrimination.

Executive Orders

The first official use of the term "affirmative action" was in an executive order signed by President John F. Kennedy in 1961. Federal contractors were ordered to take "affirmative action to ensure that [job] applicants are treated equally without regard to race, color, religion, sex, or national origin." By his 1965 Executive Order 11246, President Lyndon B. Johnson instructed all federal contractors of a certain size or larger to take "affirmative action to expand job opportunities for minorities." Executive Order 11246 required certain federal contractors to develop "affirmative action plans." Despite the requirements of the two executive orders, it became clear by the early 1970s that the prohibition of discrimination and the grievance procedures were inadequate to meet the goals of ensuring equal opportunity in education and employment. As a result, more proactive affirmative action programs were encouraged to counter the discriminatory effects of policies that seemed "facially neutral" but could, in practice, deny equal opportunity.

Courts Address the Scope of Affirmative Action Programs

Since the implementation of affirmative action programs, laws, and regulations in the 1970s, the courts -- rather than governments -- have outlined the scope and extent of such programs. When faced with a claim of discrimination by a state or local government, courts look to the provisions of the Civil Rights Acts of 1964 and its various amendments, including the Civil Rights Act of 1991, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. When considering a claim of discrimination by a federal entity, courts look to the Civil Rights Acts and the Due Process Clause of the Fifth Amendment.

During the late 1960s and the early 1970s, many educational institutions used minority quota systems that provided for specified numbers of minority students. In 1978, the United States Supreme Court ruled that such racial quotas were illegal. The Court, however, agreed with the principle or theory of affirmative action. Since that decision, federal courts have not ruled consistently on questions of racial quotas or preferences, thus further creating confusion and controversy.

In a landmark decision in 2003, the Court ruled that a public university could consider an applicant's race during the law school admissions process. The Court, however, said that public universities could not provide "broad and arbitrary advantages" to each minority applicant. Calling the ruling a victory, advocates of affirmative action were optimistic that public universities could now safely develop or implement plans to increase the number of acceptances of minority students. In a second decision, the Court struck down an undergraduate admissions process that was found to have violated the Constitution because it arbitrarily gave bonus points to each minority applicant.

Another landmark decision in 2007 affecting school districts across the country, a deeply divided United States Supreme Court struck down plans in Louisville, Kentucky, and Seattle, Washington, which assigned students to schools based partly on their race. The Court stated that the school districts failed to justify "the extreme means they have chosen -- discriminating among individual students based on race by relying upon racial classifications in making school assignments." However, the Court fell short of a sweeping decision saying that race could never be taken into consideration.

What is an "Affirmative Action Plan?"

An employer or a public educational institution establishes an affirmative action plan (AAP) in order to address and eliminate discrimination. For example, a public university's AAP might include policies used during the admission process. An employer's AAP would set forth guidelines for hiring and promoting members of minority groups, including women, to address and correct any past employment practices that were discriminatory. Many banks are required to implement AAPs. Employers who have entered into contracts to do business with the federal government must also develop AAPs.

The Debate Continues

Affirmative action continues to be a subject of controversy, partly because it can be difficult to define and to apply in practice, but it also concerns issues of fairness and equality. Debate and court decisions have mostly focused on affirmative action programs -- or the lack thereof -- in government programs and education. Some commentators have expressed concern over the apparent lack of such discussion about affirmative action in the area of employment.

Have a labor and employment question?
Get answers from local attorneys.
It's free and easy.
Ask a Lawyer

Get Professional Help

Find a Labor And Employment lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys

Talk to an attorney

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you