Affirmative Action And Justice
Affirmative Action is a hot issue in the United
States, with wide differences of
opinion over the correct way to expand
opportunity for people who have
historically been discriminated against. With
the philosophical difference
behind the legal and political tensions is deep.
One side wants a total rollback
of affirmative action programs, making
individual merit the only criterion for
hiring and promotional
considerations. While the other extreme wants affirmative
action to be pushed
until the racial makeup of all professions mirrors the
racial makeup of US
society exactly. While both these sides are to the greatest
ends of the
argument there needs to be an approach to come up with a medium.
This
could include laws to force companies to vigorously recruit and
develop
minorities for professional and managerial jobs. However, there
should not be
any outright quotas, which reserve a certain number of slots
for particular
minority groups. This will cause resentments and
constitutional obstacles down
the road. The objective here is not to do away
with affirmative action in one
sweep, rather to seek out strategies to help
promising minorities and match them
with opportunities they have rightfully
earned and deserve. Now, what does the
law say? Although Title VII has an
affirmative action component part of it, most
regulations stem from a
requirement imposed by Executive Order 11246. There are
a lot of
misconceptions about affirmative action and what laws companies actual
have
to follow. One is that all companies are required to adhere to the laws
under
affirmative action, this is not the case. Executive Order 11246 states
that
once a company enters into a contract with a federal governmental agency
that
exceeds $10,000 it must abide by the affirmative action rules
and
regulations. These regulations include, but are not limited to, the
following:
to post in a conspicuous place, available to all applicants,
provisions of the
nondiscrimination clause; include in contractor's
advertisements that all
qualified applicants will receive consideration
without regard to race, color,
religion, gender, or national origin; include
statements of these obligations to
all subcontractors; and furnish all
information and reports to the Secretary of
Labor for purposes of
investigation to ascertain compliance with the executive
order and its
regulations. In addition to the above regulations if a corporation
enters
into a contract of $50,000 or more additional requirements are put in
place.
A Corporation must develop a written action plan within 120 days of
the
beginning of a governmental contract. They must also perform a
workforce
analysis, which must indicate how many women and minorities are in
job
categories ranging from unskilled workers to managerial employees. These
are the
basic rules and regulations companies and corporations must follow in
order to
be within the compliance of the law. There have been several major
court
decisions that have helped define the application of the statutes
and
regulations. One of the biggest and earliest cases was that of Regents of
the
University of California v. Bakke. This case was not against an
individual's
employer rather against a university. Bakke applied to Davis for
two consecutive
years but was rejected on both occasions. In both years,
applicants with lower
scores than Bakke were admitted due to a special admit
program. Davis had a
program that says applicants who are not of minority
status are totally excluded
from a specific percentage of the seats in the
entering class. When the State's
distribution of benefits hinges on the color
of a person skin, that individual
is entitled to a demonstration that the
challenged classification is essential
to promote a tangible state interest.
For this reason the court's judgment was
that Davis' special admission
program was invalid under the Fourteenth
Amendment. Another case, that
did deal with the employer-employee relationship,
was United Steelworkers of
America, AFL-CIO v. Weber. In this case a white
employee sued because his
employer adopted a voluntary affirmative action plan
reserving for black
employees fifty percent of the openings in a training
program. Because the
company had put in place a voluntary program to eliminate
an apparent racial
imbalance the Supreme Court held that the program was
permissible and did not
unnecessarily trample the rights of white employees.
These are just a
couple of the more prominent cases that have help set the
standards for
future cases involving affirmative action. There are several
regulations in
place that penalize corporations for not following affirmative
action rules
and regulations. These penalties for noncompliance can range from a
slap on
the hand to major penalties and fines. The publishing of the names
of
nonconforming contractors is a minor penalty. Some other more serious
penalties
are as follows: recommending proceedings be instituted under Title
VII; the
Attorney General bringing suit to enforce the executive order;
recommending the
Department of Justice that criminal proceedings be
initiated; canceling,
terminating or suspending the contract; and debarring
the contractor from
entering into future government contracts. These
penalties were enforced during
the case of Local, 28, Sheet Metal Workers v.
E.E.O.C. The court imposed that a
29% nonwhite membership goal be meet by
a certain date and a $150,000 fine be
placed in a fund intended to expand
nonwhite membership in the apprenticeship
program. In order for these
penalties to be avoided there are several steps
management should take to be
in compliance with the law. First, ensure that
hiring, promotions and
training are open and fair to all that apply. Work with
both unions and
employee groups if an affirmative action plan is to be but in
place to get
early approval from all constituencies affected. Make sure
voluntary plans
meet judicial requirements. So all employees understand the
plan, provide
periodic training explaining the purpose and the intent of the
plan. Training
is the easiest way to deter a lot of misconceptions that
employees have about
affirmative action. If affirmative action is handled in the
proper way
everyone, minorities, females and whites, wins in the long run.