[A condensed version of this article (entitled The American Model) is scheduled to appear in print in India Today, later today]
The story of affirmative action in the United States is a story about repeated attempts to correct a long-recognized problem. It is about balancing the rights of the majority and the minority. It is about determining the price to be paid today to correct a problem created and fostered by generations long gone. It is about a just way to create a society blind to the color of its citizens. It is about increasing the accessibility of the American Dream without risking it entirely. It is about keeping the American economy vibrant and competitive in a sea of global competition. It is about sustaining meritocracy while becoming more inclusive. In short, it is a story about social engineering.
The issue of affirmative action in the U.S. cannot be separated from the issue of employment discrimination. Employment discrimination is part of a larger social problem of discrimination that has its beginnings in American history — a history, both colonial and independent, that endured slavery for about 300 years. The American declaration of independence from the yokes of the King of England was rooted in rebellion against taxation without representation, not in the fundamental unfairness of how (some of) their fellow men were being treated. The first U.S. constitution, commonly referred to as the Articles of Confederation, was crafted and adopted by the Second Continental Congress in 1777. The Confederation created a loosely-knit alliance of the original thirteen north-eastern states, but proved unworkable in resolving inter-state issues. Interestingly, while protecting freedom of movement, the Article of Confederation had excluded these rights from “paupers and vagabonds”. The constitution that followed was no more protective of the disadvantaged.
The United States Constitution that was completed in 1787 and took effect in 1789 created a federal union of sovereign states. It included a supremacy clause making federal powers superior to those of the constituent states. It also enshrined slavery in the American constitution through the “three-fifths compromise”. Slaves were counted as being equal to three-fifths of free men. Since slaves (not just women!) did not then have the right to vote, it has been argued that this reduced somewhat the political power of the slave-owning classes.
It took the American civil war, the Emancipation Proclamation of 1863 and the Thirteenth Amendment of 1865 before slaves in America truly obtained their liberty. The Fourteenth Amendment of 1868 repealed the three-fifths compromise and prohibited the states from abridging a citizen’s right to “due process” or from denying anyone the “equal protection” of the law. This made the former slaves equal under the law to their fellow citizens. The Due Process Clause and the Equal Protection Clause have been critical elements of the American Constitution ever since. When all other avenues fail, the due process clause serves as the basis for seeking legal remedies for loss of rights and freedoms from governmental action. The equal protection clause is the constitutional basis for treating members of the majority and the minority as equals in the eyes of the law.
The American Civil War was followed by migration of the freed slaves from the southern farms to the northern cities. Their new found liberty was, however, not accompanied by economic prosperity. After an initial phase (called the Reconstruction) lasting a little over a decade following the end of the Civil War, Reconstruction came to an end, the protection of the civil rights of African Americans began a downward spiral.
The U.S. Supreme Court, in its infamous Plessy v. Ferguson decision of 1896, decided that providing “separate but equal” facilities were constitutionally adequate to justify separation of the races. This led, in turn to legalized segregation in America that lasted well past World War II. In this era, which is considered by some to be the darkest period in American history, a number of southern states encouraged or permitted discrimination against African Americans through so-called Jim Crow laws. These laws covered a range of state-supported discriminatory measures including segregation, disenfranchisement and denial of economic opportunity. This was also a period when violence against African Americans was tolerated or abetted by the police forces of certain states.
During this entire period, a number of gradualist approaches to reform were tried, but none succeeded. From this emerged a more activist approach to reforming the evils of pervasive discrimination that is generally referred to as the Civil Rights Movement. One of the most memorable moments in the Civil Rights Movement was the “I Have a Dream” speech by Martin Luther King given in 1963 at the Lincoln Memorial in Washington, DC. The Civil Rights Movement, inspired by Gandhiji’s Satyagraha movement amongst others, used civil disobedience measures, such as boycotts, marches and sit-ins. These measures were successful in bringing about a substantial change in the legal status quo in a little over a decade.
The Plessy decision was repudiated in 1954 by the U.S. Supreme Court in Brown v. Board of Education. This started the process of desegregation in public schools all over America (and had the unanticipated side effect of causing the middle class to flee from the cities to the less-diverse suburbs). In 1961, President Kennedy issued an executive order forbidding employment discrimination by the federal government and its contractors on the basis of an employee or applicant’s race, creed, color and/or national origin and requiring “affirmative action” in providing “equal opportunity in employment”. The era of Affirmative Action had begun.
Following President Kennedy’s assassination in 1963, President Johnson made civil rights legislation a priority, leading to the passage of the landmark Civil Rights Act (CRA) of 1964 that for the first time went beyond the Fourteen Amendment mandate of “equal protection” into outlawing discrimination based on “race, color, religion, sex or national origin” in fields of voting, public accommodations, education and employment.
This created the terminology of “protected classes” in discrimination law. A protected class is a group of people who are given legal protection from discrimination based on their having one or more of the enumerated characteristics (e.g., race, color, religion, sex or national origin).
Since every human being has a race, a color, a religion, etc., the anti-discrimination laws thus protect all citizens, rather than merely some, without running afoul of the equal protection clause of the Fourteenth Amendment. At the same time, everyone was also expressly protected from discrimination on the basis of their race, color, religion etc.
Legislative protections against discrimination were greatly expanded at both the federal and state levels in the 1960s and 1970s. Just prior to the passage of the CRA, the Equal Pay Act of 1963 had been enacted, prohibiting gender-based wage discrimination. Individuals forty years and older were protected from age-based employment discrimination by the Age Discrimination in Employment Act (ADEA) of 1967.
The Civil Rights Act of 1968 (enacted a week after Martin Luther King’s assassination!) forbade discrimination in the sale, rental and financing of housing on the basis of race, religion, national origin, sex, and added two more protected classes to the civil rights laws – disability and family status (whether or not a person has minor children). The Rehabilitation Act of 1973 forbade the federal government from discriminating against qualified disabled persons in its employ. The latest substantive addition to the stable of anti-discrimination statures is the Americans with Disabilities Act of 1990 (ADA), a comprehensive civil rights law for people with disabilities. The ADA prohibits discrimination against people with disabilities in employment, in public services, in public accommodations and in telecommunications.
The 1964 CRA created the Equal Employment Opportunity Commission (EEOC). The enforcement powers of the EEOC were limited at first, rendering it a toothless tiger. In 1972, the EEOC obtained the authority to sue nongovernmental respondents (such as employers, unions and employment agencies) if a reasonable settlement could not be reached in any particular case. Other federal agencies also enforce certain other federal laws prohibiting employment discrimination. It should be noted that most of the states of the U.S. have their own civil rights laws that have created additional statewide protected classes.
Later protected classes did not always share the universality of the initially protected classes. This resulted in laws whereby some members of society were given more protections than others, setting the stage for legal challenges based on the equal protection clause.
It is important to note that the panoply of U.S. anti-discrimination laws enacted in the 1960s and 1970s created specific legal remedies for discriminatory acts in the private sector largely without mandating general remedies or employment quotas. It is fair to say that a substantial majority of Americans disfavor percentage (or similar) quotas in education or employment for socially disadvantaged groups – so much so that it is hard to find any mainstream politician in the United States who advocates such measures. Even if such quotas were ever enacted into law to govern private sector economic activity, they would be unlikely to pass muster with the modern U.S. Supreme Court.
Even while nominally abstaining from favoring any one group over another in the private sector, the executive branch of the U.S. Government has been held to a different standard. Executive Order 11246 of 1965 required federal contractors and subcontractors to take “affirmative action” to equalize employment of underrepresented minorities to compensate for the “effects of past and present discrimination.” Every entity with at least fifty employees and aggregate annual revenues of $50,000 or more from a federal contact was required to have a written affirmative action plan.
Such affirmative action plans were required to address imbalances in the hiring of women and minorities compared to their actual numbers in the labor force and have resulted in many instances in the creation of de facto quotas. However, individually tailored affirmative action plans had the advantage over legislative solutions, in minimizing the risk of harm from inappropriate corrective action. In the main, U.S. affirmative action programs have provided a safety net of economic opportunity for women and underrepresented minorities. Their legality has also been affirmed by the U.S. Supreme Court as long as they are necessary to correct actual past discrimination and promote a compelling governmental purpose.
The law has also mandated preferential treatment of women and minority owned businesses in federal procurement, which exceeds $300 billion a year. These “set-asides” for minorities and women have benefited a smaller group of societally-favored entrepreneurs, and created many millionaires, all without creating social unrest. These “set-asides” have thus brought the American dream within reach of some who might not have even been able to aspire to it otherwise.
The era of Affirmative Action that began in the 1960s created a new set of problems – reverse discrimination. Every time a college admitted or an employer hired a member of a protected class, someone else was denied admittance or a job. Given the tepid performance of the American economy in the two decades following the first oil shock of 1973, new opportunities were not being created at a rate commensurate with sating the mandates and expectations created by the 1964 CRA and its legal siblings. Employment and college admission started to feel like zero-sum games, breeding resentment and numerous lawsuits alleging that the mandates of affirmative action were denying the non-protected classes the equal protections of the law.
Reverse discrimination claims and responsive state-level legislative remedies threatened to reverse the gains of the Civil Rights Movement. This had two effects. The first was the growth of anti-discrimination legislation came to almost a complete halt at both the state and federal levels. The second was the progressive enactment of so-called percentage plans in some states, under which a select percentage of high school graduates (typically the highest 5-20% of the class) were promised preferential admission to the best state-run universities of their states. This effectively provides a quota for meritorious students, and thus a safety valve against social resentment.
The situation today strikes a delicate balance between the interests of the descendants of the formerly oppressed classes and the descendants of the others. The minorities of the U.S. are eager to obtain equality of educational and employment opportunity that their parents never had. The rest of the population, while sympathetic to the historical problems faced by minority groups, does not want to bear the entire burden of remediation by losing both, the opportunities for education and employment, that their parents had. A Just society cannot be built by tarring children, for the sins of their forebears. The correction of pervasive discrimination in the U.S. is thus a work in progress. The utopian ideal of a true color-blind society may never be reached. But that is unlikely to stop Americans from continuing to try.
Affirmative Action FAQs
Q. What is Affirmative Action?
A. It is a set of measures taken to correct the effects of past discrimination against one or more members of a protected class. It is also called positive discrimination in some countries (e.g. Britain). For example, a federal contractor who has historically hired a smaller percentage of women or minorities than the comparable percentage in the local work force, may be required to create a plan to remedy the imbalance. Suck affirmative action plans are monitored for effectiveness.
Q. What is a Protected Class??
A. A person is said to be a member of a protected class if he or she shares a certain characteristic with other members of the class and the class is specifically protected from discrimination under state or federal law Examples of protected classes under U.S. anti-discrimination law include race, color, religion, national origin and gender.
Q. What is Reverse Discrimination?
A. It is the discriminatory effect on a group of people (typically the majority) from the action (such as affirmative action programs) that benefit a protected class.
Q. Who regulates employment in the U.S. – the States or the Federal Government?
A. Both. There are anti-discrimination and affirmative action laws and regulations at both the state-level as well as at the federal level. States may not reduce protections from discrimination below federal levels, but may raise them. Any state-level protections would generally protect both residents and non-residents of the state equally.
Q. What is the reach of affirmative action in the U.S.?
A. Affirmative Action Programs reach extends to both public and private educational institutions and federal procurement, but generally does not cover any part of the private sector not involved in doing business with the federal government. Curiously, the legislators are themselves exempt
Q. Why is the rationale for regulating educational institutions?
A. Both private and public educational programs are regulated under two rationales. Since most institutions of higher educational are dependent on federal funding, the legal basis for federal jurisdiction flows from the power of the purse – the right to spend federal money includes the right to place conditions on parties receiving federal funds. The social rationale for regulation of educational institutions is based on the consensus that creating a color-blind society can only happen through education of the next generation, and this requires regulation of the admission policies of educational institutions.
Q. Why is the rationale for regulating government procurement?
A. Federal contractors and subcontractors became subject to the mandate of affirmative action because certain business segments (like construction) proved resistant to the mandates of equal employment opportunity. The legal basis for federal jurisdiction, as with educational institutions, flows from the power of the purse.
Q. Are there employment quotas or job reservation in the (non-federal) private sector in the U.S.??
A. No. Quotas and reservations are generally disfavored by economic liberals and conservatives alike.
Q. How are the rights of the people protected in the private sector?
A. Excepting federal contractors and subcontractors, the private sector is principally governed only by federal and state anti-discrimination laws.
Q. What does a person do if they face discrimination in the workplace?
A. For all laws enforced by EEOC, other than the Equal Pay Act, a plaintiff must first file a charge with the EEOC (or in some cases, with a similar state agency) before a private lawsuit may be filed in court. Prior to, or after, filing an EEOC complaint, the person may consult with a lawyer if they can afford the lawyer’s fee. The EEOC is a governmental agency that first investigates the complaint. If it finds merit in the discrimination complaint, it can bring charges against the employer or agency. Since legal representation is expensive in the U.S., the existence of the EEOC thus provides greater protection against discrimination, especially in the private sector.
Q. What kinds of remedies are available for employment discrimination?
A. A plaintiff who wins a lawsuit for employment discrimination may be awarded back pay or front pay, can get hired, promoted or reinstated, obtain reasonable changes in the workplace or such other measures as will compensate him for the tort. These remedies are available regardless of whether the discrimination was caused by intentional acts or not. Sometimes remedies may include costs and attorneys’ fees, as well as compensatory and punitive damages, especially when the discrimination is found to be intentional.
Q. Why is the private sector exempt from the mandates of Affirmative Action?
A. The American Constitution enumerates specific powers to the government and reserves all other rights to the people themselves. Consequently, the jurisdictional reach of federal powers has always been subject to limits, except when correcting actual or imminent harm. The U.S. Supreme Court has applied strict scrutiny to Affirmative Action legislation since it goes beyond creating equal opportunity in the workplace, and has held it to be justifiable only to remedy specific injury to a particular group. At the practical level, U.S. legislators are concerned about hobbling the free market American economy, or reducing its long-term global competitiveness by reducing the flexibility of the labor force by mandating quotas.
Legalese 