The concept of affirmative action and employment at will have recently sparked a heated debate concerning its effectiveness in achieving its purpose. Notably, affirmative action has been on the formation for a long time since the late 19 th century with the implementation of laws such as the civil rights case, which overturned the Civil Rights Act of 1875. The proponents of the provision strongly believe that these laws are in place to eradicate the impacts of past discrimination, while the opponents perceive the law as a chance to exercise reverse discrimination. Tangible benefits surrounding the issues include employment, admission to schools and universities, electoral posts, governments’ licenses and contracts. In the recent past, lawsuits against learning institutions, government bodies, and regulatory agencies have been on the rise, an indicator that whites are developing animosity towards the policy. Although the judicial system has exercised its role in rectifying mistakes committed with reference to affirmative action, it is apparent that most people lack awareness as to the purposes of the law, and proper situations that warrant its application.
The background of this legal provision stems from past incidences of racial discrimination, which have failed to fulfill their requirements effectively. The major purpose is to eliminate the pre-existing racial discrimination through the allocation of opportunities and jobs to both women and minorities. The affirmative action programs were particularly popular during the 1950s and 1960s following the civil rights and the Civil Rights and Equal Opportunity legislation (Kennedy, 2015). The American history includes the subjugation of African Americans during the slavery era and racially discriminative laws such as the Jim Crow laws. The Plessey vs. Ferguson case of 1883 that led to the separate but equal law, which later proved unconstitutional, was stripped off during the Brown v Board of Education. Brown vs. Board of Education followed in the mid-20 th century with the court ruling against the separate but equal rule. Affirmative action has been an ongoing process with many presidents sanctioning its use (Stuckey, 2013). In all the cases that the issue of the discrimination was highlighted, it has always been clear that some individuals, both whites and blacks, felt that the ruling was not fair. For example, following the Brown vs. Board of Educators ruling, certain critics from the minority community felt that separate but equal provided the African Americans with favorable conditions to advance themselves without the discrimination in mixed schools.
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Creating diversity in the workplace is another advantage associated with affirmative action. The law ensures that the hiring process is not discriminative, thus, creating a culturally diverse working environment. In addition to eradicating discrimination in the workplace, the practice has other benefits for the employer. Notably, employees with varying cultural backgrounds will encourage a plethora of ideas because of diversified viewpoints. These differing viewpoints foster the growth of the workforce by interacting with new ideas as learning opportunities. Additionally, discriminative practices at the workplace are associated with denied and reduced opportunities for certain employees (Crosby et al., 2003). However, the knowledge of such malpractices will encourage the institution to practice equality, therefore, ensuring equal opportunities for all employees. Both the private and public sector are implementing affirmative action with the number of African Americans doubling up in the recent past. A perfect case law example is that of the United States v. Paradise which gathered that the Alabama Department of Public Safety had not promoted or hired any black trooper in the last four decades by the time of the ruling. The court ordered that the Department hires and promotes blacks and whites in the ratio of 1:1 until racial equality was achieved to eradicate the impacts of the pre-existing discrimination (Wasson, 2004). In yet another incidence, Fullilove vs. Klutznick , the court ruled in favor of a federal law to set aside funds to facilitate entrepreneurs from minority groups after it was discovered that there was a history of discrimination in the construction sector.
Affirmative action opens a leeway for reverse discrimination where the whites are now discriminated against by the affirmative action law that favors minority groups. Instead, the American society strives to treat each person as an individual, and the law is significantly flawed because of its over-reliance on the government and the employer. These flaws are further worsened by the fact that the corporate world is on a fast rise, with most multi-national corporations swaying government regulations significantly. Research conducted in 1994 indicated that institutions openly discriminated against white students. The UC Berkeley School of Law admitted almost all students with a GPA of 3.5 while only 42% of white students with a similar GPA were admitted into the institution (Kennedy, 2015). Such practices have been the cause of concerns that the institutions fail to uphold equality by admitting students and employing workers that do not meet the required standards. Critics of the affirmative action continue to argue that the affirmative action will lower the performance of the employer and the institutions since the individuals who acquire opportunities through affirmative action do not have the capacity to meet the expectations. Consequentially, the application of such a law will ruin the reputation of the institutions or reduce the performance of the employer. Additionally, when individuals acquire access to such opportunities through affirmative action, it only exposes them to further discrimination due to the assumption that such individuals acquired the positions because of their race and not because of their performance as is the case with everyone else. An example is the case of Fisher vs. University of Texas at Austin in which Fisher, a white female student, sued the institution for discriminating against her during the enrollment process (Wasson, 2004). However, the court ruled in favor of the institution by stating the fact that the decision was in line with the Equal Protection Clause of the Fourteenth Amendment.
However, the supporters of this view ignore the fact that such racial minorities do not have the same access to resources as their white counterparts. For example, most students from racial minorities face multiple challenges during their education, with many forced to attend basic education in public schools. With such a policy in place, students from racial minorities are now able to gain access to the same learning opportunity that they did not have before. Notably, such measures are fruitful with many African Americans attaining leadership roles in these institutions. There is a popular concern that opponents of the affirmative action perceive the law to be in violation of merits (Chrisman, 2013). However, this view is misleading since candidates from minority groups can also have the same performance levels as their white counterparts, in which case the law dictates that the racial minority is prioritized. Additionally, the provision also indicates that the execution of the affirmative action must suggest that the decision was made in favor of the government and not that of individuals. A landmark case is that of Grutter vs. Bollinger which ruled in favor of the complainant. In this case, Barbara Grutter was denied admission at the University of Michigan in spite of a GPA of 3.8 and LSAT of 161. The institution stated that their pursuit of diversity inspired the decision. Notably, the court upheld that the law must be applied with strict scrutiny, which was not done by the institution in the case. In yet another case involving The University of California vs. Bakke , Bakke, a 35-year-old white man, sued the institution after applying for enrollment for two consecutive years without success (Kennedy, 2015). Notably, the institution secured 16 positions for minority students at the institutions, and none of the minority students admitted in the two years had better performance than Bakke (Kennedy, 2015). It was found that the institution rightfully used affirmative action to promote diversity at the institution, but the presiding judge also advised that the institution find a position for Bakke. These two rulings are different, but in both, the requirements of the affirmative action are upheld, although in the Bakke case, the court was careful not to facilitate reverse discrimination. The institution had at first argued that training more black doctors would mean that there would be more practitioners serving black communities, a presumption that the court found baseless.
Despite its intentions, the implementation of affirmative action mostly depends on the employer and governments, and their willingness to encourage non-discriminative policies at the workplace. For example, employers must ensure that job advertisements are accessible to a broader audience to encourage more minorities to become aware of the job opportunity, therefore, increasing their chances of acquiring the employment. Thus, the implementation of the law heavily depends on the voluntary action of the employer. The EOCC prevents a discriminative hiring process, but the purpose of the affirmative action is to foster the advancement of racial minorities, which can only happen if the employers are willing. An example to show the reliance of the policy on voluntary action is that of Metro Broadcasting, Inc. vs. Federal Communications Commission , in which FCC was sued for favoring minority groups through the distress sale policy. This allowed broadcasting houses risking an FCC investigation and closure to sell to minority individuals at a discount to promote diversity because of the cultural differences (Wasson, 2004). The court ruled in favor of FCC, arguing that the decision was inspired by the need to promote diversity in broadcasting.
The structure of the affirmative action also hinders the full advancement of the racial minorities because it is flawed. Notably, the law might harm the very group of people that it is intended to assist. In organizations that the affirmative action is implemented, racial minorities are disadvantaged because of the preexisting notion that they acquired the posts because of their demographic orientation (Chan & Eyster, 2003). Consequentially, these individuals are often stigmatized and stereotyped as incompetent and incapable. As a result, the beneficiaries are evaluated negatively in spite of the actual performance. The self-perception of these individuals also suffers since they believe that their performance does not meet the expectations of their employer. Also, these individuals fail to rely on the work performance appraisals. Eventually, their performance starts to diminish because these individuals lack confidence in their abilities.
However, the legal action affects various races differently. Besides African Americans who have benefitted the most from the plan, Asian Americans and whites are also experiencing its impacts. Particularly, Asian Americans are considered more competent as compared to other races including whites, and therefore, they are often prioritized for job opportunities (Chrisman, 2013). In addition, Asian Americans are stereotyped as model minorities, and they cannot be considered a disadvantaged group. Therefore, the affirmative action program is also discriminative against Asian Americans with certain organizations failing to include them in their diversity program. Noteworthy, the implementation of the affirmative action programs in various institutions, quotas, public and private employment sector (Boddie, 2016). The term which was first used in 1935 in the National Labor Unions dictated that employers found discriminating against certain employees were to stop and employ corrective action to bring the employees to the position where they would be without the discrimination. The affirmative action informs employment and enrollment decisions to avoid placing certain individuals at a disadvantage at the workplace or in institutions. The journey has not been without considerable obstacles with minorities gaining momentum by the day, and using the provision to improve their socio-economic status, perhaps a step in the right direction towards equality in America.
Cases brought forward by whites repelling affirmative action indicate that whites are starting to treat the policy as reverse discrimination, with rulings indicating that many employers and bodies are yet to understand its relevance. For quite some time, the impacts of racial prejudice that started with slavery are still present in today’s society, with many African Americans striving to improve their position in America. The civil rights movement is still very active in today’s society with many minorities in the United States experiencing discrimination to date. Popular examples of racial discrimination in today’s society include housing segregation and the negligence of public schools. Important to note is that racial minorities still have the lowest paying jobs and are associated with low income neighborhoods because of pre-existing racist attitudes. White students have access to better resources as compared to their African American counterparts. Affirmative action acts as a scale to balance the issues of past discriminatory acts against minorities. The affirmative action has also fostered diverse working environments and student body. There are many other advantages of affirmative action that are not discussed in the essay such as nurturing role models, increasing the political power of minority communities, and improving access to resources. The legal system has shown its prowess in upholding the rights of every American citizen by occasionally ruling against individuals that use the policy to their advantages. Notably, most of the issues associated with an affirmative action can be eliminated with increased awareness concerning the law and potential areas of application.
References
Boddie, E. C. (2016). The future of affirmative action. Harv. L. Rev. F., 130, 38.
Chan, J., & Eyster, E. (2003). Does banning affirmative action lower college student quality?. American Economic Review , 93 (3), 858-872.
Chrisman, R. (2013). Affirmative action. The Black Scholar, 43(3), 71-71.
Crosby, F. J., Iyer, A., Clayton, S., & Downing, R. A. (2003). Affirmative action: Psychological data and the policy debates. American Psychologist, 58(2), 93.
Kennedy, J. A. (2015). An Assessment of Affirmative Action in Business.
Procedural Justice and Affirmative Action by Meshelski, Kristina
Sturkey, W. M. (2010). AFFIRMATIVE ACTION. Encyclopedia of Contemporary American Social Issues [4 volumes] , 9.
Wasson, G. P. (2004). Affirmative Action: Equality or Reverse Discrimination?. Senior Honors Papers , 140.
