Affirmative Action. When you read or hear these words, what comes to mind? There are a lot of myths about affirmative action. For the purposes of this article, we will explore affirmative action in the employment context only. However, because there can be so much confusion over this topic, we will briefly go over affirmative action -- as it can sometimes be viewed -- in college admissions. Due to the two most recent Supreme Court opinions that address college admission (the University of Michigan cases in 20031), a student's race can be used as one of many factors when deciding college admissions. If a student's race is considered, it must be part of a narrowly tailored and holistic admissions process and cannot be the sole reason for the offer of admission. As such, colleges and universities can choose to consider a student's race when making admissions decisions absent a state law that would prohibit such use.
In the employment context, the use of affirmative action is much different than in college admissions. However, I suspect the several myths about affirmative action in employment come from knowledge, or perceived knowledge, about affirmative action in college admissions. Under the Regulations implementing Executive Order 11246, which was signed by President Johnson in 1965, a federal contractor "must develop and maintain a written affirmative action program for each of its establishments if it has 50 or more employees," and "has a contract of $50,000 or more." This includes most institutions of higher education. So while the use of race in college admissions can be undertaken voluntarily by a college or university, there are specific federal requirements regarding race and gender in the employment context.
Because of the number of myths about affirmative action, and the limited space here, let's explore some of the more pervasive myths and the actual relevant facts:
Myth: Affirmative Action means quotas.
Fact: Federal regulations identify "placement goals," which are based on a calculation of availability data and the current workforce. Availability data comes from a few sources, including the U.S. Census and terminal degree awards databases. These goals provide clarity and focus on outreach efforts to ensure the applicant pool is as diverse and qualified as possible. Many organizations have full-time "diversity recruiters" to assist them in this requirement. The regulations explicitly state "Quotas are expressly forbidden...[i]n all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual's employment status, on the basis of that person's race, color, religion, sex, or national origin."
Myth: Affirmative Action means hiring individuals who are less qualified than other candidates because of race and/or gender.
Fact: This is unlawful. Under Title VII of the Civil Rights Act, you cannot base a hiring decision, in whole or in part, on a person's race or gender. In addition, under Executive Order 11246, a college or university must take affirmative steps to ensure its hiring practices are fair, equitable, and free from discrimination. It must also take steps to get the word out about open positions and target outreach efforts to ensure the applicant pool is as diverse and qualified as possible. In the end, the most qualified person is hired.
Myth: Our list of finalists for the open position doesn't include a person of color or a female candidate, so let's select someone from the applicant pool to include as a finalist so we are compliant with federal requirements.
Fact: This is not consistent with best practices and does not relate to federal requirements. More importantly, organizations should consider conducting a "step analysis" of its hiring process to determine if there are any barriers to candidates reaching the final round. If the finalists do not reflect the demographics of the candidate pool, an institution should ask itself why, and it should identify steps to address this issue. Further, as stated in the regulations, "A central premise underlying affirmative action is that, absent discrimination, over time a contractor's workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects."
Myth: Affirmative action, civil rights and diversity are the same thing.
Fact: While there are many ways to define these three terms, they are not the same. I define them in the following way: Affirmative action is a federally mandated program for federal contractors as it relates to employment. Civil rights result from a series of federal and state civil rights laws and provide protection from discrimination and harassment on a variety of bases, including race, color, national origin, gender, age, disability, religion and veteran status. Diversity can be defined in many ways, including diversity of thought, experiences, and backgrounds. Together, all three can contribute to a more welcoming, inclusive, supportive, diverse, and respectful working and learning environment that is free from discrimination and harassment.
Affirmative action helps create a level playing field that gives everyone an equal opportunity to compete for a job and career. It ensures that no person is disadvantaged or treated unfairly during the hiring process because of their race, ethnicity or gender. It is about fairness and justice for all. Who could be against that?
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Facts and Myths of Affirmative Action
by Anthony Walesby
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