"Affirmative action" is one of the most misused and misunderstood terms in the current debate over civil rights. Most people use it as a synonym for "quotas," "racial preferences" or "reverse discrimination," meaning, in the employment context, reservation of a fixed number of jobs for members of particular groups, minorities or women. Opponents argue that quotas or preferential treatment for one group necessarily result in discrimination against members of other excluded groups.
But affirmative action, at least in the employment context, has never meant or been a synonym for quotas. The term was first used by President Kennedy in an executive order issued in 1961. It provides that contractors and subcontractors may not "discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin" and that "the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin."
The most controversial technique employed by the Labor Department to implement this "affirmative action" obligation, and the one that has been misunderstood and misinterpreted as "quotas," is goals and timetables to increase employment of minorities and women by government contractors. In a formal opinion upholding the legality of goals and timetables, John Mitchell, as attorney general, said that when an employer has to make a particular employment decision--for example, whether to hire A, a black, or B, a white--that decision must be made on the basis of the relative qualifications of the applicants without regard to race. An executive order and Labor Department regulations explicitly forbid discrimination: "(Goals are) not intended and should not be used to discriminate against any applicant or employee because of race, color, religion, sex, or national origin."
On the other hand, Mitchell said there is no inconsistency between nondiscrimination in each discrete employment decision and restructuring the employment process as a whole, from advertising and recruitment to testing and screening, to increase the number of minorities getting into the system and getting a chance at a job.
Some opponents of affirmative action have said this is all very nice in theory, but if an employer has 20 jobs and a "goal" of five minorities, when he has filled the first 15 jobs with whites, the next white applicant for the remaining five jobs will be turned away because he is white. But that interpretation is simply wrong. The attorney general's opinion in 1969 said "if notwithstanding the good faith efforts of the employer (i.e., to get more minorities into the process) such a situation does arise, the qualified nonminority employee may be hired" (emphasis added.)
This is really the key to understanding the difference between goals and quotas. A quota can be used either as a ceiling (e.g., no more than a certain number of Jews, blacks, etc.), or as a floor (at least a certain number of minorities.) Both systems are improper. All the major federal agencies responsible for enforcement of civil rights laws have reiterated this point about the difference between goals and quotas several times in the past decade.
The term "affirmative action" is also used in Title VII of the Civil Rights Act of 1964, where it has a somewhat different meaning that also may have contributed to the misunderstanding. In the provision of Title VII granting power to the federal district courts to remedy violations of that statute--in other words, discrimination --Congress gave the courts the power to "order such affirmative action as may be appropriate (including) reinstatement or hiring of employees with or without back pay . . ."
When a court finds that an employer has discriminated against minorities or women, it can order that they be paid back pay, be given backdated seniority and be placed in the first available jobs for which they are qualified. In such cases the specific individuals who were discriminated against are simply being "made whole," being conpensated for their loss due to the illegal act of discrimination. There is no reverse discrimination against the white applicant who doesn't get the job, or the white employee who finds himself lower down on the seniority roster. If there had been no discrimination in the first place, these employees or applicants would not have had any claim to the job or the higher seniority position.
More troublesome, and probably contributing the most to the misuse of the term "affirmative action," are situations like the Boston Police Department case. There, after finding an employer guilty of discrimination, a court ordered the hiring of a fixed number or ratio of minorities until the employer's work force reached rough parity with the available minorities in the area.
Most important, the court ordered that any qualified minorities available must be hired, not just those who were discriminated against in the past. Courts all over the country have issued such orders as a means of eliminating the present effects of past discrimination. Unfortunately many of these court decisions have used the words "goals," "quotas" and "affirmative action" interchangeably, and have discussed executive affirmative action requirement as if they required quotas.
The Supreme Court has not spoken on this question of preferential treatment of members of a discriminated-against racial group who themselves are not victims of discrimination; it recently sidestepped an opportunity to do so when it dismissed as moot the Boston Police Department case. In the famous Weber case, however, the court upheld a voluntary plan under which Kaiser Aluminum reserved half of all openings in its craft apprenticeship program for blacks until the number of black craftsmen was equal to the percentage of blacks in the local work force. The Supreme Court also upheld a 10 percent "set-aside" of contracts under an economic development grant program to be targeted for disadvantaged minority contractors.
In response to the objection that those who are not members of minorities will be injured when a quota deprives them of a job or contract, the Supreme Court has said, "When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a 'sharing of the burden' by innocent parties is not impermissible."
Whether these cases should be distinguished from a court-ordered remedial employment quota for members of minority groups who themselves were not victims of discrimination by the particular employer is one of the most difficult questions in civil rights today. It should not be obscured by emotional misuse of important terms like affirmative action.