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AMERICAN ASSOCIATION FOR AFFIRMATIVE ACTION

"Access, Equity and Diversity"

AFFIRMATIVE ACTION

Past, Present and Future

I. PAST

AFFIRMATIVE ACTION

Past, Present and Future

Affirmative Action Has a Bipartisan History The requirement that Federal contracts contain a clause banning employment discrimination on the basis of race, color, creed and national origin has been an established part of Federal contracting policy since 1941 when President Roosevelt signed Executive Order 8802 outlawing discrimination in the war industries.

What is Affirmative Action? 3

AFFIRMATIVE ACTION

Past, Present and Future

President Roosevelt's Executive Order was strengthened by subsequent executive orders issued by five successive presidents: Roosevelt, Truman, Eisenhower, Kennedy and Johnson. Banning discrimination was not enough, however, to overcome the continuing barriers to equal opportunity.

What is Affirmative Action? 4

AFFIRMATIVE ACTION

Past, Present and Future

"[T]he indifference of employers to establishing a positive policy of nondiscrimination hinders qualified applicants and employees from being hired and promoted on the basis of equality." President's

Committee on Government Contracts (1960)

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

President Kennedy incorporated the concept of "Affirmative Action" into Executive Order 10925 which he issued in 1961.

What is Affirmative Action?

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The Framework of Diversity

AFFIRMATIVE ACTION

President Johnson issued Executive Order 11246 in 1965, assigning

responsibility for the contract compliance program to the Secretary of Labor. The Nixon Administration issued regulations providing a blueprint for developing affirmative action programs including goals, in 1970.

What is Affirmative Action? 7

AFFIRMATIVE ACTION

Past, Present and Future

In 1967, President Johnson added Executive Order 11375, to include gender.

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

Before signing Executive Order 11246 in September 1965, Johnson gave his memorable commencement address at Howard University in June: "You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.

What is Affirmative Action? 9

AFFIRMATIVE ACTION

Past, Present and Future

"You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and say, ,,you are free to compete with all the others, and still justly believe that you have been completely fair...

What is Affirmative Action? 10

AFFIRMATIVE ACTION

Past, Present and Future

"Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

"This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result."

Lyndon B. Johnson, June 4, 1965

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

Section 503 of the Rehabilitation Act of 1973 was enacted to prohibit discrimination and require affirmative action in all personnel practices for qualified individuals with disabilities.

What is Affirmative Action?

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AFFIRMATIVE ACTION

The Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, (VEVRAA) also prohibits discrimination and requires affirmative action in all personnel practices for special disabled veterans, veterans of the Vietnam era, and any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been issued.

What is Affirmative Action? 14

Past, Present and Future

AFFIRMATIVE ACTION

Past, Present and Future

In 1978, the US Supreme Court in Regents v. the University of California v. Bakke upheld the use of race as one factor in choosing among qualified applicants for college admission. At the same time, it ruled unlawful the University of California at Davis medical school practice of reserving seats in each entering class for disadvantaged minority students. In Bakke, Justice Harry Blackmun wrote "In order to get beyond racism, we must first take account of race. There is no other way." 438 U.S. 265 (1978)

What is Affirmative Action? 15

AFFIRMATIVE ACTION

Past, Present and Future

Using Dr. Martin Luther King's Dream to end affirmative action

Opponents of affirmative action frequently defend their efforts to eliminate such programs by citing Dr. King's impassioned plea for his children to be judged "not by the color of their skin, but by the content of their character."

What is Affirmative Action? 16

AFFIRMATIVE ACTION

Past, Present and Future

These claims are a blatant distortion of his words. King understood that more than mere enforcement of antidiscrimination guarantees was not enough to end past and continuing discrimination. In that regard, Dr. King and President Nixon were in accord.

What is Affirmative Action? 17

AFFIRMATIVE ACTION

Past, Present and Future

"Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask nothing more. On the surface, this appears reasonable but it is not realistic. For it is obvious that if a man is entered at the starting line of a race three hundred years after another man, the first would have to perform some impossible feat in order to catch up with his fellow runner."

What is Affirmative Action? 18

AFFIRMATIVE ACTION

Past, Present and Future

"It is impossible to create a formula for the future which does not take into account that our society has been doing something special against the Negro for hundreds of years. How then can he be absorbed into the mainstream of American life if we do not do something special for him now, in order to balance the equation and equip him to compete on a just and equal basis?"

What is Affirmative Action? 19

AFFIRMATIVE ACTION

Past, Present and Future

"The struggle for rights is, at bottom, a struggle for opportunities. In asking for something special, the Negro is not seeking charity. He does not want to be given a job he cannot handle. Neither, however, does he want to be told that there is no place where he can be trained to handle it. So, with equal opportunity must come the practical, realistic aid which will equip him to seize it. Giving a pair of shoes to a man who has not learned to walk is a cruel jest." (M.L. King, Why We Cant Wait)

What is Affirmative Action? 20

AFFIRMATIVE ACTION

Past, Present and Future

Dr. King was not asking for quotas, preferences or reverse discrimination. He called for opportunities that ended continuing discrimination.

The essence of affirmative action is opportunity.

What is Affirmative Action? 21

AFFIRMATIVE ACTION

Past, Present and Future

In 1986, the U.S. Supreme Court held that an employer could take gender into account as one factor in determining who should be selected where there was a "manifest imbalance". The employer acted pursuant to a voluntary affirmative action plan and took a moderate, flexible, case by case approach. Johnson v. Transportation Agency, 480 U.S. 616 (1986)

What is Affirmative Action? 22

I. AFFIRMATIVE ACTION: PAST

In 2003, two lawsuits challenged the use of race and ethnicity conscious affirmative action at the University of Michigan's Law School (Grutter v. Bollinger) and the undergraduate College of Literature, Science and the Arts (Gratz v. Bollinger). In both suits, the plaintiffs claimed that their rejections for admission were the result of discrimination against them for being white. The University of Michigan (UM) vigorously defended its use of affirmative action as a lawful and crucial component of its mission to provide educational opportunity to a diverse student population.

What is Affirmative Action? 23

AFFIRMATIVE ACTION

Past, Present and Future

The US Supreme Court held in the Grutter v. Bollinger case (2003) that:

the Law School's narrowly tailored use of race in admissions decisions furthers a compelling interest in obtaining the educational benefits that flow from a diverse student body and is not prohibited by the Equal Protection Clause, Title VI of the Civil Rights Act of 1964 inter alia.

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AFFIRMATIVE ACTION

Past, Present and Future

In so ruling, the Court upheld the 1978

decision:

Regents of the University of California v. Bakke

This Court reviewed a medical schools racial set-aside program that reserved 16 out of 100 seats for members of certain minority groups; Justice Powell emphasized that the " ,,nations future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation." Id., at 313. However, he also emphasized that "[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that can justify using race. Id., at 315.

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AFFIRMATIVE ACTION

Past, Present and Future

Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." The Court in Grutter endorsed Justice Powells view that student body diversity is a compelling state interest in the context of university admissions.

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AFFIRMATIVE ACTION

Past, Present and Future

Justice Sandra Day OConnor wrote:

"Major

American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security. Moreover, because universities, and in particular, law schools, represent the training ground for a large number of the Nation's leaders, ... the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity. Thus, the Law School has a compelling interest in attaining a diverse student body."

Grutter v. Bollinger, 539 U.S. 306 (2003)

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AFFIRMATIVE ACTION

Past, Present and Future

What have we learned from the Michigan cases?

Diversity includes a wide range of attributes, not just race. Individualized, holistic review is important. Race cannot be used in a mechanistic or automatic way. Race-neutral alternatives must be considered. Race cannot be a proxy for a point of view.

· (Jonathan Alger, Rutgers University)

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AFFIRMATIVE ACTION

Past, Present and Future

Mere "racial balancing" to reflect the population at large is not a compelling interest (see recent K-12 decisions).

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AFFIRMATIVE ACTION

Past, Present and Future

According to Professor Marta Tienda of Princeton University, who conducted the study:

"The important lesson is the lesson we learned in 1978. If we want to diversify our institutions of higher education, if we want the public flagships to play a role in creating a community of leaders among all segments of the population, then for the time being -- when we have very egregious inequities in access -- it is necessary to take race into account."

What is Affirmative Action? 30

AFFIRMATIVE ACTION

Past, Present and Future

In The Shape of the River, written by former university presidents William Bowen of Princeton University and Derek Bok of Harvard University, the authors pointed out that eliminating considerations of race would have increased the likelihood of admission for white applicants at selective undergraduate institutions from 25% to only 26.5%

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AFFIRMATIVE ACTION

Past, Present and Future

In employment, Affirmative Action is the set of positive steps that employers use to promote equal employment opportunity and to eliminate discrimination.

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

Where there are fewer women or minorities than would reasonably be expected by their availability in the labor market, a contractor must establish goals.

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AFFIRMATIVE ACTION

Past, Present and Future

Are goals a subterfuge for Quotas?

No. Quotas are expressly forbidden by law. Affirmative Action goals under Executive Order 11246 are targets for recruitment and outreach and should be reasonably attainable by means of applying good faith efforts to make the affirmative action program work. The standard of compliance is Good Faith.

What is Affirmative Action? 34

AFFIRMATIVE ACTION

Past, Present and Future

Are goals intended to achieve proportional representation or equal results?

No. Numerical goals do not create guarantees for specific groups, nor are they designed to achieve equal results.

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AFFIRMATIVE ACTION

Past, Present and Future

Does Affirmative Action under Executive Order 11246 require employers to hire or promote on the basis of race or gender? No.

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

Does Affirmative Action conflict with the principles of merit? No. Affirmative Action gives everyone a chance to be judged on individual ability.

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

ISN'T AFFIRMATIVE ACTION ONLY A RACE ISSUE? No. Affirmative Action Programs benefit women, persons with disabilities and veterans as well.

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AFFIRMATIVE ACTION

Past, Present and Future

It is important to understand the relationship between affirmative action and discrimination. There appears to be an inverse relationship between affirmative action and discrimination ­ where there are efforts to "cast a wide net" we found less discrimination...

What is Affirmative Action? 39

AFFIRMATIVE ACTION

Past, Present and Future

Affirmative Action is preventive, proactive and inclusive. Affirmative Action removes preferences and other barriers. Affirmative Action evens the playing field and promotes true equality in the workplace.

What is Affirmative Action? 40

AFFIRMATIVE ACTION

Past, Present and Future

Affirmative Action programs for federal contractors consist of three parts: Problem identification, Self-Analysis, and ActionOriented Programs.

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AFFIRMATIVE ACTION

Past, Present and Future

Problem Identification:

An effective Affirmative Action Program enables a contractor to identify potential problems or concentrations of women, minorities, persons with disabilities and veterans in the workplace, from the entry-level to the executive suite.

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AFFIRMATIVE ACTION

Past, Present and Future

Self-Analysis: The contractor conducts a selfanalysis to determine the status of women and minorities at all levels of its enterprise and to precisely determine the causes of any problems identified.

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AFFIRMATIVE ACTION

Past, Present and Future

Action-Oriented Programs

Where problems are identified, the employer must institute efforts to eliminate any policies, procedures or practices that are discriminatory and take pro-active measures, including recruitment, training, outreach, and the expansion of mentoring programs, to include qualified women and minorities, the disabled and veterans.

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AFFIRMATIVE ACTION

Past, Present and Future

Under the Bush (I) Administration, Secretary of Labor Elizabeth Hanford Dole initiated the Glass Ceiling Initiative to address barriers to equal opportunity in the "executive suite."

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AFFIRMATIVE ACTION

Past, Present and Future

ELIMINATING THE GLASS CEILING REQUIRES:

Commitment of top management to EEO and affirmative action A system to identify high potential employees PRINCIPLES Development Programs Succession Planning

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AFFIRMATIVE ACTION

Past, Present and Future

During the Clinton Administration, there was a comprehensive review of affirmative action following the Adarand v. Pena decision. "Mend it, dont end it" was the resulting policy. Equal pay, glass ceiling and compensation were also emphasized.

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AFFIRMATIVE ACTION

Past, Present and Future

"The purpose of affirmative action is to give our nation a way to finally address the systemic exclusion of individuals of talent on the basis of their gender or race from opportunities to develop, perform, achieve and contribute. Affirmative action is an effort to develop a systematic approach to open the doors of education, employment and business development opportunities to qualified individuals who happen to be members of groups that have experienced longstanding and persistent discrimination."

President William Jefferson Clinton speech on affirmative action at the National Archives, July 19, 1995 http://www.washingtonpost.com/wpsrv/politics/special/affirm/docs/clintonspeech.htm

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

II. AFFIRMATIVE ACTION PRESENT

What is Affirmative Action?

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AFFIRMATIVE ACTION

Past, Present and Future

The affirmative action laws enacted and signed in the 1960s and 1970s still exist. The current Supreme Court and Administration are highly critical of affirmative action, however.

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AFFIRMATIVE ACTION

Past, Present and Future

How Does Diversity Differ from Affirmative Action?

Affirmative Action is the framework for a successful diversity program.

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AFFIRMATIVE ACTION: THE PRESENT

Past, Present and Future

What Is Diversity?

"The condition of being diverse... an instance or a point of difference." "Something to be valued, respected, and shared, as well as a learning tool for life." "Treating each person as an individual with their own set of norms and beliefs. It is letting go of stereotypes and generalizations, recognizing that even within a culture no two people are the same."

What is Affirmative Action? 52

AFFIRMATIVE ACTION

Past, Present and Future

"Addressing diversity in the workplace is very important from several perspectives. From a corporate view, a diverse personnel may contribute to a wellrounded company with limitless possibilities. From a personal view, embracing and understanding diversity in the workplace may lead to breaking down barriers that can inhibit personal growth, continued development and an overall enjoyable and fulfilling work and life experience." Interplay, Interactive Theatre for Dialogue

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AFFIRMATIVE ACTION

Past, Present and Future

"Diversity" means more than just acknowledging and/or tolerating difference. Diversity is a set of conscious practices that involve: * Understanding and appreciating interdependence of humanity, cultures, and the natural environment.

* Practicing mutual respect for qualities and experiences that are different from our own.

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AFFIRMATIVE ACTION

Past, Present and Future

Business context

In a business context, appearance diversity (ethnicity, gender, color, orientation) is approached as a strategy for improving employee retention and increasing consumer confidence.

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Past, Present and Future

The "business case for diversity", as it is often phrased, is that in a global and diverse marketplace, a company whose staff embrace ethnic representation and gender composition which mirrors the demographics of the marketplace it serves is better equipped to thrive in that marketplace than a company whose appearance is out of step with its market's appearance.

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AFFIRMATIVE ACTION

Past, Present and Future

More than 80 percent of U.S. corporations don't have diversity initiatives Most of those that do are Fortune 500 companies. Diversity is a human resource Management Issue and should be integrated into a companys strategy for competitiveness.

What is Affirmative Action?

AFFIRMATIVE ACTION

DiversityInc.com

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Past, Present and Future

Global Diversity: To remain

competitive, companies must become familiar with the culture of the countries in which they work. Cross-cultural competence also promotes unbiased recruitment and enhances a companys market share. Many U.S. companies don't know how to address diversity issues in other countries. This results in a disparity between diversity initiatives at home and abroad.

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AFFIRMATIVE ACTION

AFFIRMATIVE ACTION Past, Present and Future

III. Affirmative Action: FUTURE

What is Affirmative Action?

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AFFIRMATIVE ACTION Past, Present and Future

Developing a diverse mix of qualified candidates to ensure that the workforce of the company mirrors the communities which it serves is important, as is: Providing employees with the skills needed to perform in a culturally diverse environment absent.

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AFFIRMATIVE ACTION Past, Present and Future

Creating an atmosphere in which all employees take ownership of the diversity problems and recognize they are part of the problem as well as of the solution Creating an organizational culture where racist, ethnocentric, and sexist language is totally absent.

What is Affirmative Action? 61

AFFIRMATIVE ACTION Past, Present and Future

Tips For Top Management: Support and reward initiatives that improve opportunities for all workers. These may include:

Sponsoring and publicizing mentoring programs for all new employees and for all employees who are promoted to new levels Making managers and supervisors aware of Alternative Dispute Resolution (ADR) programs and of toplevel support for the use of such initiatives.

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AFFIRMATIVE ACTION Past, Present and Future

Support and reward effective managers those who come up with innovative approaches to problem-solving, who meet or exceed affirmative action and diversity goals; Be prepared to discipline managers who have been found to intentionally discriminate. Assure that all managers and supervisors are trained in EEO, affirmative action and diversity principles so they can manage actively as opposed to reactively.

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AFFIRMATIVE ACTION Past, Present and Future

Building a bridge between affirmative action programs and diversity initiatives ensures the success of both. Managers should understand their role in affirmative action programs. Companies should not separate affirmative action from diversity programs. They are inextricably linked.

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AFFIRMATIVE ACTION Past, Present and Future

The Future of Affirmative Action

Despite the challenges brought by Ward Connerly and the Right Wing, affirmative action will continue to be necessary because of the nations changing demographics and to need to include these human resources for international competitiveness.

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What is Affirmative Action?

AFFIRMATIVE ACTION Past, Present and Future

The Census Bureau calculates that by 2042, Americans who identify themselves as Hispanic, black, Asian, American Indian, Native Hawaiian and Pacific Islander will together outnumber non-Hispanic whites. Diversity strategies (including affirmative action) will be essential.

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AFFIRMATIVE ACTION Past, Present and Future

Diversity will continue to emerge as a superset of affirmative action, as a means to promote representation and to manage effectively increasingly diverse employees in the workplace. While discrimination continues to exist, its antidote, Affirmative Action, will be necessary: for prevention and to remedy discrimination.

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Thank you!

AFFIRMATIVE ACTION Past, Present and Future

American Association for Affirmative Action 888 16th Street, NW, Suite 800 Washington, DC 20006 202-349-9855 www.affirmativeaction.org

What is Affirmative Action?

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